SATISH KUMAR Vs. PRAFUL KUMAR & ORS.

JUDGEMENT

(1.) This Appeal is for enhancement of compensation for the injury suffered by the Appellant Satish Kumar in an accident which took place on 11.03.2007 at about 11:25 AM with the motorcycle bearing No.DL -9SP -2987 on which the Appellant was travelling as a pillion rider. The motorcycle was struck by a Maruti car bearing No.HR -26 -AH -8047 which was driven by Respondent No.1 and owned by Respondent No.2 and insured with Respondent No.3 Insurance Company. The Appellant was taken to Safdarjung Hospital where he was medically examined vide MLC bearing No.44671/2007. He suffered supracondylar fracture femur right with condyle fracture tibia right. He was operated initially in Safdarjang Hospital on 12.03.2007 after which he was discharged from the Safdarjang Hospital on 20.03.2007 and was then admitted in Sinha Fracture and Surgical Hospital for 18 days where plates inserted in his right leg.

(2.) The Tribunal found that the accident took place on account of rash and negligent driving by Respondent No.1. By impugned award, the Tribunal granted the following compensation:

(5.) Photocopy of a disability certificate issued by the Rao Tula Ram Memorial Hospital, Jaffarpur, New Delhi on 06.10.2009 i.e. after the decision of the Tribunal, was placed on record. It is important to note that the Appellant was employed as a Safaikaramchari in Municipal Corporation of Delhi (MCD) and he continued to work as such till date. It was conceded by the learned counsel for the Appellant that his job was not affected but he is disabled for all times to come. In my view, the Appellant cannot be granted any compensation for loss of earning capacity as he continued to get the same salary, even his future prospects in the form of increment etc. is not affected. It is a different matter that he would be entitled to the compensation for loss of amenities in life which, I would deal a little later. At this moment, it would be relevant to refer to the latest judgment of the Supreme Court in Raj Kumar v/s. Ajay Kumar & Anr. : (2011) 1 SCC 343, where it was laid down that, for awarding compensation in case of permanent disability, the Court has to find out the functional disability which reduces the earning capacity. It would be fruitful to extract Paras 13, 14 and 15 of the report hereunder: