Delhi High Court
National Insurance Co. Ltd. vs Prem Singh & Ors. on 8 December, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30th November, 2011
Pronounced on: 8th December, 2011
+ MAC APP. 196/2010
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Ms.Shantha Devi Raman, Advocate
Versus
PREM SINGH & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Advocate for
respondent No.1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant impugns the award passed by the Ld. Motor
Accident Claim Tribunal (herein after referred to as 'the
Tribunal') dated 11.12.2009 whereby the Claimant (Respondent
herein) was granted a compensation of ` 4,57,164/- on account
of permanent disablement caused to his left lower limb due to
the motor accident, which took place on 25.10.2005.
2. On 25.10.2005 at about 7 AM, Prem Singh (Respondent No.1
herein who was aged about 54 years and was self-employed as
a TSR driver) was standing on the road close to his TSR near
the G.T. Road Petrol Pump in front of Delhi Metro Station,
when a bus bearing Registration No.DL-1PA-3851 came from
behind and struck him. He sustained injuries and also
amputation of his (left) mid foot including three toes.
3. The contentions raised on behalf of the Appellant are: -
(i) That the Tribunal erred in taking the total disability of the
Respondent No.1 to be 75% when the disability
certificate clearly showed that the Respondent No.1 was
disabled only to the extent of 40%. And in fact, the
extent of disability should have been 20% in relation to
the whole body.
(ii) That the injuries did not, in anyway, hamper the
Respondent No.1 from driving the TSR and, therefore,
there was no loss of future income to him.
(iii) That the Respondent No.1 failed to prove that the
amputation of his toes resulted in loss of his income or
that he was unable to drive the TSR because of his injury.
4. To the contrary in the Cross Objections filed by the Respondent
No.1, it is contended that Trial Court erred in considering the
functional disability of the Respondent No.1 to be 75%, instead
of taking it to be 100%. It is, urged that the Trial Court wrongly,
did not take into account Respondent No.1's future prospects
for computing the compensation. Lastly, it was contended that
the amount which was granted by the Tribunal under 'Non-
Pecuniary' heads was on the lower side and the same needed to
be enhanced keeping in view the facts and circumstances of the
case.
CONTENTION NO.(i) (ii) & (iii)
5. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 the Supreme
Court laid down principles for computation of compensation for
a disabled person. The relevant para of the report is extracted
hereunder: -
"17. If a doctor giving evidence uses technical
medical terms, the Tribunal should instruct him to
state in addition, in simple non-medical terms, the
nature and the effect of the injury. If a doctor
gives evidence about the percentage of permanent
disability, the Tribunal has to seek clarification as
to whether such percentage of disability is the
functional disability with reference to the whole
body or whether it is only with reference to a limb.
If the percentage of permanent disability is stated
with reference to a limb, Tribunal will have to seek
the doctor‟s opinion as to whether it is possible to
deduce the corresponding functional permanent
disability with reference to the whole body and if
so the percentage.
18. The Tribunal should also act with caution, if
it proposed to accept the expert evidence of
doctors who did not treat the injured but who give
„ready to use‟ disability certificates, without
proper medical assessment. There are several
instances of unscrupulous doctors who without
treating the injured, readily giving liberal
disability certificates to help the claimants. But
where the disability certificates are given by duly
constituted Medical Boards, they may be accepted
subject to evidence regarding the genuineness of
such certificates. The Tribunal may invariably
make it a point to require the evidence of the
doctor who treated the injured or who assessed the
permanent disability. Mere production of a
disability certificate or discharge certificate will
not be proof of the extent of disability stated
therein unless the doctor who treated the claimant
or who medically examined and assessed the
extent of disability of the claimant, is tendered for
cross-examination with reference to the certificate.
If the Tribunal is not satisfied with the medical
evidence produced by the claimant, it can
constitute a Medical Board (from a panel
maintained by it in consultation with reputed local
hospitals/medical colleges) and refer the claimant
to such Medical Board for assessment of the
disability.
"19. We may now summarise the principles
discussed above:
(i) All injuries (or permanent disabilities
arising from injuries), do not result in
loss of earning capacity.
(ii) The percentage of permanent
disability with reference to the whole
body of a person, cannot be assumed
to be the percentage of loss of earning
capacity. To put it differently, the
percentage of loss of earning capacity
is not the same as the percentage of
permanent disability (except in a few
cases, where the Tribunal on the basis
of evidence, concludes that the
percentage of loss of earning capacity
is the same as the percentage of
permanent disability)."
6. It is, therefore, settled that where the claimant suffers permanent
disability as a result of an accident, the assessment of
compensation under the head of loss of future earning would
depend upon the effect and impact of such permanent disability
on his earning capacity. In most of the cases, the percentage of
economic loss, i.e. the percentage of loss of earning capacity,
arising from a permanent disability will be different from the
percentage of permanent disability - depending on the
profession of the claimant.
7. In the present case the Respondent had suffered 40% disability
in relation to his left lower limb, as mentioned in the disability
certificate Ex. PW-1/1 and proved by PW1 Shri Prem Ram,
Record Clerk from LBS Hospital. Keeping in mind that the
Respondent was a TSR driver, the Trial Court erred in taking
the total disability as 75% in relation to the whole body as the
Respondent's injuries(i.e. amputation of his (left) mid foot
including three toes) would not incapacitate him from driving
the TSR. Moreover, as pointed out by the Counsel for the
Appellant, the left leg of a person does not have any crucial role
to play while driving a TSR, much less the mid foot or the toes.
The Tribunal wrongly observed that a TSR driver needed to use
his left foot for operating the brakes, when in fact in a TSR the
brakes are on the right side, and therefore, the right leg is used
to apply the brakes. Therefore, I am of the opinion that the
Tribunal erred in taking 40% disability in relation to the left
lower limb as 75% disability in relation to the whole body.
8. Keeping in mind that the amputation of the left mid foot
(including three toes) would have still decreased the efficiency
and the overall capability of the Respondent No.1, as the driver
of the TSR has to use his left leg for certain purposes such as
ingress and egress out of the TSR, parking it and other
miscellaneous work like its repair etc. - furthermore, the
disablement would make it difficult for the Respondent No.1 to
walk and run because of the chopping of the three toes and mid
left foot. Therefore, I take the total functional disability
resulting in the loss of earning capacity as 40% only.
COMPUTATION OF THE COMPENSATION:
9. The Respondent No.1's income was rightly taken by the
Tribunal according to be minimum wages of a skilled worker,
which was ` 3,589/- (on the date of the accident in the absence
of any other evidence) and taking the disability to be 40% the
amount works out as ` 1436/- x 12 = 17,227/- per annum.
Keeping in view the age of the Respondent No.1, I am of the
opinion that no future prospects can be granted to him.
10. Applying the multiplier of '11' according to the age of the
claimant the loss of future income (earning capacity) of the
Respondent comes to ` 1,89,499/-. The compensation awarded
towards non-pecuniary damages was on the lower side and
needs to be enhanced considering the nature of injury and
permanent disability. Accordingly, I enhance the compensation
towards pain and suffering from Rs. 25,000/- to ` 50,000/-;
towards loss of amenities of life from `25,000/- to `1 lakh. I
further grant a compensation of `25,000/- towards
disfigurement of the body. The total compensation is tabulated
as under:
S.No. Heads Awarded by Awarded by
Tribunal this Court
1. Actual medical ` 25319/- ` 25319/-
expense
2. Loss of Actual Income ` 25,534/- ` 21,534/-
3. Loss of future income ` 3,55,311/- ` 1,89,499/-
4. Pain and Suffering ` 25,000/- ` 50,000/-
5. Conveyance and Spl. ` 5000/- ` 5000/-
Diet
5. Loss of Amenities of ` 25,000/- ` 1,00,000/-
Life
6. Disfigurement ` 25,000/-
TOTAL ` 4,57,164/- ` 4,16,352/-
(rounded off `
4,57,000/-)
11. The Respondent shall be entitled to a compensation of `
4,16,352/- along with interest @ 7.5% per annum from the date
of filing of the petition till the deposit of the amount in this
Court. Rest of the amount shall be refunded to the Appellant
National Insurance Company along with interest if any.
12. 25% of the compensation along with proportionate interest shall
be released to the Respondent No.1 forthwith.
13. Rest of the amount shall be held by way of Fixed Deposit
Receipt in the name of Respondent No.1 for five years.
Respondent No.1 shall not be entitled to premature and
encashment of the FDR or any loan against it without the
permission of this Court.
14. For the aforesaid reasons, the appeal is allowed in the above
terms.
(G.P. MITTAL)
JUDGE
DECEMBER 8, 2011
hs
