Oriental Insurance Co. Ltd. vs Rohit Kumar Singh & Ors.
2011 Latest Caselaw 1878 Del

                                        REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     MAC.APP. 562/2004 and CM No.16111/2004

ORIENTAL INSURANCE CO.LTD.                      ..... Appellant
                            Through:   Mr. Madhurendra Kumar,
                                       Advocate
                   versus

ROHIT KUMAR SINGH & ORS.                          ..... Respondents
                            Through:   Mr. M.M. Singh, Advocate

%                           Date of Decision : March 31, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                            JUDGMENT

: REVA KHETRAPAL, J.

1. This appeal seeks to impugn the judgment and award dated

18.09.2004 passed by the learned Motor Accident Claims Tribunal

awarding a sum of ` 33,45,000/- (including the interim compensation

of ` 25,000/-) to the respondent No.1/claimant along with interest at

the rate of 9% per annum from the date of the institution of the claim

petition till the date of realisation.

2. The facts relevant for deciding the appeal as they emerge from

the record are that on 27.12.2000, the respondent No.1/claimant along

with his friend was travelling in a Maruti Esteem Car bearing No.DL-

8C-A-2431, which was being driven by the respondent No.2 in a rash

and negligent manner, without caring for the traffic rules.

Resultantly, the respondent No.2 (the driver of the car) could not stop

his car at the ESI crossing, between Sector-21A, 22, 24 and 25A,

Noida, U.P. and dashed into another vehicle (Tata-407) bearing

No.DL-1L-A-5057, which was being driven by the respondent No.4,

and which was owned by the respondents No.5 and 6. As a result of

the accident, the respondent No.1 and the other occupants of the car

sustained grievous injuries. The respondent No.1 was taken to

Kailash Hospital and Research Centre at Noida in an unconscious

state, where he remained in the ICU from 27.12.2000 to 24.02.2001

and thereafter in the hospital till 21st March, 2001.

3. It is the case of the respondent No.1/claimant that as a result of

the said accident he sustained grievous brain injuries and is on bed till

date, and his treatment is still continuing. It is further the case of the

respondent No.1 that he has become permanently disabled and has

developed a squint in his eyes and is not able to either walk or talk

properly. It is asserted that he was a bright student, 23years of age,

and had passed his B.Sc. from the Delhi University in the year 1999

whereafter he had undergone Medical Transcription Course, and was

working in an office on a remuneration of ` 7,000/- per month. It is

claimed that his income would have increased in the future. It is also

claimed that his sister is a doctor by profession. The prayer in the

claim petition is for the award of compensation in the sum of ` 50

lakhs in favour of the respondent No.1 and against the remaining

respondents as well as the appellant - Insurance Company.

4. The respondents No.2 and 3, in their written statement, stated

that the accident had taken place due to the rash and negligent driving

of the driver of the other vehicle, viz. the Tata-407 and that the

liability to pay compensation was only of the latter. The said

respondents further asserted that the accident did not take place due to

the fault of the respondent No.2 and the petition was, therefore, liable

to be dismissed. On merits, all the averments contained in the

petition were denied, though it was admitted that the Esteem Car was

being driven by the respondent No.2.

5. The appellant, the insurer of the Esteem Car (the respondent

No.3 in the claim petition), also claimed in its written statement that it

was not liable to pay compensation as the accident had taken place

due to the negligent driving of the driver of the Tata-407. On merits,

it denied all the averments contained in the petition, though admitted

that Maruti Esteem Car bearing No.DL-8C-A-2431 was insured with

it on the date of the accident.

6. The respondents No.4, 5 and 6, who were subsequently

impleaded as parties in the claim petition, in their written statement,

took the stand that the name of the respondent No.6 was put in the

Registration Certificate of the vehicle, viz. Tata-407, as the actual

owner of the said vehicle, Jai Singh (the respondent No.5) was old

and unable to appear in the Court for payments of challans, etc. On

merits, all the averments contained in the petition were denied and it

was denied that the accident had taken place due to the fault of the

driver of the Tata-407, i.e., the respondent No.4.

7. Initially, on the pleadings of the parties, the following issues

were framed for consideration:-

"(i) Whether Rohit Kumar Singh received injuries in a motor vehicular accident dated 27.12.2000 due to rash and negligent driving of Esteem Car No.DL-

8C-A-2431 by the respondent No.1 -

Ajay Kumar?

(ii) Whether the respondents are not liable to pay the compensation as claimed?

(iii) To what amount of compensation, if any, and from, is the petitioner entitled to receive?

(iv) Relief."

8. Subsequently, on the impleadment of the respondents No.4, 5

and 6 (impleaded as respondents No.4, 5 and 5A in the claim petition)

by amendment of the petition, Issue No.1, as framed initially, was re-

framed as under:-

"Whether Rohit Kumar sustained injuries in a motor vehicular accident on 27.12.2000 involving truck No.DL-1L-A-5057 and Esteem Car No.DL-8C-A-2431 which was being driven

by the respondent No.1 Ajay Kumar in a rash and negligent manner?"

9. The learned Claims Tribunal after discussing the evidence

adduced by the parties on the aforesaid issue as re-framed came to the

conclusion that the respondent No.1 had sustained grievous injuries

on account of the motor vehicular accident on 27.12.2000, which was

caused due to the rash and negligent driving of the Esteem Car by the

respondent No.2 and the Tata-407 truck by the respondent No.4. In

view of the fact that the Maruti Car was owned by the respondent

No.3 and was insured with the appellant and the truck was owned by

the respondents No.5 and 6, it held that the respondents No.2 to 6

along with the appellant were jointly and severally liable to pay the

compensation. The Tribunal further held that since the appellant had

failed to place on record the terms and conditions of the insurance

policy, stated to be a comprehensive insurance policy, it had not been

able to establish that it was not liable to the third party in accordance

with the terms of the insurance policy. The Tribunal accordingly

proceeded to compute the compensation payable to the respondent

No.1 on the basis of the evidence adduced by the parties and awarded

a total compensation of ` 33,45,000/- (including the interim

compensation of ` 25,000/-) along with interest at the rate of 9% per

annum from the date of institution of the claim petition till the date of

realisation payable by all the respondents in the claim petition, to be

paid by the appellant - Insurance Company, though it was held

entitled to recover 50% of the compensation amount from the

respondents No.5 and 6. Aggrieved by the aforesaid findings of the

Claims Tribunal, the appellant - Insurance Company has preferred

the present appeal.

10. The main thrust of the appellant's counsel in the present appeal

is that on the basis of the evidence adduced on behalf of the parties, it

is apparent that the respondent No.4, being the driver of Tata-407,

was solely responsible for causing the accident on account of his rash

and negligent driving. He submitted that the Claims Tribunal has

wrongly given undue weightage to the testimony of the respondent

No.1/claimant over the testimony of the respondent No.2 (the driver

of the Maruti Esteem Car), who was produced in the witness box by

the appellant - Insurance Company. It is further submitted by the

learned counsel for the appellant - Insurance Company that though

the respondent No.1/claimant testified that the respondent No.2 was

heavily drunk at the time of the accident, the medico-legal certificate

of the respondent No.2 was not produced in evidence to substantiate

the aforesaid fact. In fact, the learned Tribunal observed that there

was no cogent evidence on record to show that the respondent No.2

was driving in a drunken state at the time of the accident.

11. The learned counsel for the appellant also submitted that the

respondent No.2 had deposed that the said accident was caused as his

vehicle, i.e., the car which he was driving, was hit in the centre of the

left side by the Tata-407, at the material point of time. He had also

deposed that there was heavy fog at that time and the accident took

place due to the rash and negligent driving of the respondent No.4,

who was driving the truck Tata-407 at a very high speed and the

headlight of the truck was also not in a working condition. The said

deposition of the respondent No.2 not having been challenged or

rebutted by the respondent No.4, it was evident that only the

respondent No.4 was negligent at the material point of time in causing

the accident which resulted in grievous injuries on the person of the

respondent No.1. Finally, it was contended that no evidence having

been led on behalf of the respondent No.4, the driver of Tata-407

truck, an adverse inference has to be drawn against the respondent

No.4. This assumed importance in the face of the testimony of the

respondent No.2, who had deposed that the accident was caused due

to the rash and negligent driving of the respondent No.4.

12. Having considered the rival contentions of the parties on this

aspect of the matter, in the backdrop of the evidence adduced by the

parties and the findings rendered thereon by the learned Tribunal, I

am of the view that the findings of the Tribunal on this issue cannot

be faulted. The claimant, who appeared in the witness box as PW1,

claimed that the accident was caused due to the rash and negligent

driving of the Esteem Car by the respondent No.2-Ajay Kumar, in a

rash and negligent manner, without caring for the traffic rules, as a

result of which it dashed against another vehicle, viz. Tata-407 truck,

at the ESI crossing, near Sectors-21A, 22, 24 and 25A, Noida. An

FIR No.307/2000 under Sections 279/338/408 IPC was registered at

P.S. Sector-24, Noida, certified copy of which was on record. In

cross-examination, the respondent No.1/claimant, however, admitted

that the truck hit into the front left side of the car, where he was

seated. The respondent No.2-Ajay Kumar, who was examined by the

appellant - Insurance Company as R3W3, on the other hand, deposed

that on 27.12.2000 at about 10.15 p.m., he alongwith Deepak and

Vijay, was travelling in the Maruti Esteem Car at a slow speed as

there was a turn. When he gradually took the said U-turn, a Tata-407

truck came from the opposite side and hit into the left centre of the

car. He further deposed that there was heavy fog at that time and the

accident took place due to the negligence of the driver of the Tata-407

truck, who was driving the truck at a high speed and his headlight was

also not working.

13. From the testimony of the aforesaid two witnesses, namely,

PW1, the claimant (the respondent No.1 herein) and R3W3 Ajay

Kumar (the respondent No.2 herein), it clearly emerges that the truck

Tata-407 hit the left centre portion of the car. This fact is also borne

out by the site plan, certified copy of which is Ex.PW1/A. A perusal

of the site plan also clearly shows that the accident took place almost

precisely in the middle of the crossing and there is no U-turn shown

near the scene of the accident. In fact, as noted by the Tribunal, it

took place at the crossing where the four roads leading to the four

Sectors of Noida meet. The testimony of the respondent No.2 to the

extent that there was a U-turn and that he was manoeuvering the car

at a slow speed of 5-10 kms. per hour in order to negotiate the U-turn

when the truck driven by the respondent No.4 came at a high speed

and hit the car is, therefore, altogether falsified by the site-plan.

14. Adverting now to the testimony of the injured/respondent No.1,

while examining himself as PW1, the respondent No.1 alleged that

the respondent No.2 was heavily drunk at the time of the accident.

The respondent No.2, on the other hand, in his testimony altogether

denied that he was under the influence of alcohol. The respondent

No.1 deposed in his testimony that all the other occupants of the car

had run away from the spot, while the respondent No.2 deposed that

they were all injured and were taken to hospital, a fact which is also

mentioned in the First Information Report. The respondent No.1

stated that the accident was the outcome of the high speed and

reckless driving of the respondent No.2, while the respondent No.2

squarely placed the blame for the accident at the door of the

respondent No.4. The respondent No.4, who was the driver of the

truck Tata-407, though admitted the factum of accident in the written

statement did not challenge the testimony of either PW1 or that of

R3W3 in any manner.

15. On the basis of aforesaid evidence, there is no manner of doubt

that the Tata-407 truck had hit into the left centre of the Esteem Car

in the middle of the intersection of four roads, which clearly shows

that the driver of the said truck was driving in a rash and negligent

manner. At the same time, it cannot be lost sight of that the

respondent No.2 was also negligent in not keeping a look-out that no

vehicle was coming from the other roads at the intersection. The

respondent No.2 himself deposed that there was heavy fog, and even

otherwise, it can safely be presumed that on 27th December, 2000 at

10.15 p.m., there must have been heavy fog. Thus, it was all the more

incumbent upon the respondent No.2 to have crossed the intersection

carefully. The testimony of the respondent No.2 with regard to the

U-turn also stands falsified by the site plan corroborated by the

testimony of the respondent No.1, which shows that there was no

U-turn and the accident took place at an intersection. Then again, the

respondent No.2 would have us believe that he was negotiating a U-

turn at the speed of 5-10 kms. per hour and the speed of the truck was

more than 100 kms. per hour as the car was pushed and dragged to a

great distance. This, again, is not borne out by the site plan that the

car was dragged to a distance, though, it is mentioned in the First

Information Report that the car was badly damaged, which shows that

the truck was being driven at a very high speed. In the circumstances,

the Tribunal, in my view, rightly concluded that the accident had

taken place as the speed of both the vehicles, i.e., the Maruti Esteem

car and the truck was very high and the drivers of both the vehicles

failed to take due care and caution while crossing the intersection in

the late hours of the cold foggy winter evening. Clearly, therefore, it

is a case of composite negligence of the respective drivers of the

Maruti Esteem Car and of the Tata-407 truck. The Tribunal, though

has held it to be a case of contributory negligence, the aforesaid

finding cannot be sustained as, quite clearly, the injured had no role to

play in the causation of the accident.

16. The respondents No.2 to 6 and the appellant herein have thus

rightly been held to be jointly and severally liable to pay the

compensation to the respondent No.1, who has been given the choice

to recover it from anyone of them or from all of them. The reliance

placed by the Tribunal in this regard on the judgment of the

Karnataka High Court rendered in The Madras Motor and General

Insurance Co. Ltd. and Anr. vs. Nanjamma and Ors., 1977 ACJ

241, the Punjab and Haryana High Court in Narinderpal Singh vs.

The Punjab State and Ors., 1989 ACJ 106 and the Delhi High Court

in the case of Smt. Angoori Devi and Ors. vs. Shri Megh Raj and

Ors., 2003 ACJ 293, clinches the matter.

17. The common thread running through all the aforesaid

judgments is that where a collision has occurred on account of the

blameworthy conduct of two vehicles, it is not necessarily implied

that the loss must automatically be distributed between the parties in

the same proportion. But in a case where both of them were equally

responsible for the accident and there is no evidence before the Court

as to whether any of them could have by acting properly avoided the

accident, the victim/victims are entitled to claim compensation in

equal proportions from the owner, driver and insurer respectively of

both the vehicles. It is the duty of the Tribunal to apportion the

compensation even in the case of joint and several liability on account

of composite liability and in fact the Tribunal is under a statutory

mandate to do so. At the same time, the Tribunal, by undertaking the

exercise of apportioning liability, only specifies the inter-se liability

of owners/drivers of vehicles found negligent in causing the accident

and this does not affect the claimant/s in any way. There is no

problem where both sets of tortfeasors would satisfy the award. But

if one of them failed, the claimant would be well within his rights to

recover the whole amount from the other, leaving such party to claim

rateable distribution from the other.

18. The further finding of the learned Tribunal that the insurance

policy of the car Ex.R3W1/1 being a comprehensive insurance policy,

the insurance company was liable to pay compensation for the injury

sustained by any occupant of the said car while travelling in the car

has not been challenged before this Court and is, therefore, not being

dealt with.

19. Dealing now with the quantum of compensation awarded to the

respondent No.1, the respondent No.1 as PW1 deposed that he had

sustained severe damage to his brain and the brain stem in the

accident which took place on 27.12.2000, besides abrasions on many

parts of his body, as a result of which he remained in the ICU from

27.12.2000 to 24.02.2001 and thereafter in the hospital till 21st March,

2001 (wrongly mentioned as 31st March, 2001 in his testimony). He

further deposed that he was on bed till date and was still undergoing

physiotherapy, besides other medical treatment. He proved on record

his medical treatment papers as Ex.PW1/I, Ex.PW1/L and

Ex.PW1/M.

20. The testimony of PW1 is corroborated by the testimony of

PW2 and PW3. PW2, Medical Record Officer from Kailash Hospital

and Research Centre proved on record the contents of two medical

files of the respondent No.1 as Ex.PW2/1 and Ex.PW2/2, while PW3

Dr. B.K. Patta, CMO from Kailash Hospital and Research Centre

proved the summary report of the injured as Ex.PW3/2. As noted by

the learned Tribunal, the MLC of Kailash Hospital shows that the

respondent No.1 had sustained a cut in the parieto-occipital region

and the C.T. Scan reveals that he had bilateral baso-frontal and right

parital concussions and his condition was stated to be grievous and he

was put on ventilator. The case summary of the respondent No.1

(Ex.PW1/I) mentions that on admission, he was comatose and had

laboured respiration, his right pupil was dilated and fixed and the left

pupil was not reacting. There was paucity of limb movements and

extensor posturing of limbs, trachae was intubated orally and

controlled mechanical ventilation was initiated. He was kept in ICU

till 24th February, 2001, whereafter he was shifted to a private room in

the same hospital. The C.T. Scan of the brain revealed evidence of

diffused axonal brain injury. He was managed conservatively by a

team of Neuro-Physicians, Neuro-Surgeons and Critical Care

Specialists throughout his stay in the hospital. At the time of

discharge from the hospital, he was mute, had asymmetrical

quadriperesis and followed occasional verbal commands. He was

discharged with advise for domicillary treatment and was also advised

review in OPD after 15 days.

21. On the basis of the aforesaid medical record, the learned

Tribunal observed that the respondent No.1's treatment had

continued till date and he had throughout been on regular

physiotherapy, besides being on medication from time to time. As

regards the expenditure incurred by him on his medical treatment for

the period 27.12.2000 to 24.02.2001 in Kailash Hospital, Noida, the

Tribunal noted that a sum of ` 3,54,203/- was directly paid by the

Department of Information and Technology, where the father of the

respondent No.1 was employed, as is borne out by letter dated

16.03.2001 (Ex.PW1/J); the medical expenses for the period between

24.02.2001 till 21.05.2001 stood paid by Oriental Insurance Company

under a Mediclaim policy, which was Ex.PW1/K; for the period from

22nd May, 2001 to 10th July, 2001, the Oriental Insurance Company

had paid a sum of ` 71,606/- on account of his treatment for the

aforesaid period. The Tribunal further noted that it was admitted by

the respondent No.1 that a total sum of ` 5,25,000/- had been

received on account of his treatment, though, he deposed that a sum

of ` 10 lakhs had been expended by him and that he had incurred

expenditure of about ` 2,60,000/- for his further medical treatment,

the bills whereof were collectively marked as Ex.PW1/L. The

Tribunal noted that the medical bills Ex.PW1/L (collectively) were in

the sum of ` 2,60,758/- and the bills Ex.PW4/B1 to Ex.PW4/B29

were for about ` 22,286/-. The unpaid bills were, therefore, in the

sum of ` 2,83,044.50, for which a sum of ` 3 lakhs was awarded by

the Tribunal for the treatment undergone by the respondent No.1 till

date. I see no reason to interfere with this amount awarded by the

Tribunal towards medical treatment already undergone by the

respondent No.1.

22. As regards his future medical expenses, the learned Tribunal

has awarded a sum of ` 3 lakhs on the basis of the record which

shows that the respondent No.1 requires regular physiotherapy which

costs him ` 6,000/- to ` 7,000/- per month and is also advised to take

medicines regularly. On the premise that a sum of ` 5,000/- per

month would be spent in future by him on his treatment, the Tribunal

has considered it proper to award a lumpsum of ` 3 lakhs at this

stage, which would generate some regular income for his continuous

future treatment. No cogent reason has been pointed out to me to

enable me to interfere with this amount awarded towards the future

treatment of the respondent No.1.

23. Adverting to the aspect of loss of future earnings, the learned

counsel for the Insurance Company has strongly urged the following

two grounds. The first is that the disability of the respondent No.1

could not have been assessed as 100%, as was done by the Tribunal,

since the disability certificate showed that the disability sustained was

to the extent of 45% of the whole body and, thus, the Tribunal erred

in taking the disability to be 100% and awarding a sum of `

21,45,000/- towards loss of future earning. The second ground urged

on behalf of the Insurance Company, relying upon the judgment of

the Supreme Court in New India Assurance Co. Ltd. vs. Charlie and

Anr., reported in (2005) 10 SCC 720, is that in a case of 100%

disability the manner of arriving at the damages is to ascertain the net

income of the claimant and to deduct therefrom such part of

his income as he was accustomed to spend upon himself, as regards

both self-maintenance and pleasure, and then to capitalize the net

income by multiplying it by a figure representing the proper number

of years' purchase. It is submitted that no deduction for personal

expenses having been made by the Tribunal, the award on this count

was unsustainable.

24. It is proposed first to deal with the contention of the learned

counsel for the appellant that the sum of ` 21,45,000/- awarded to the

respondent No.1 towards loss of income is wholly without basis. In

this context, there is on record the testimony of the respondent No.1

himself that he was working with M/s. Buildcon Management

Services India Pvt. Ltd. on a consolidated salary of ` 7,000/- per

month, which stands corroborated by the testimony of PW6 Anil

Kumar, Manager (Accounts) in M/s. Buildcon Management Services

India Pvt. Ltd. The latter has proved on record the salary certificate

of the respondent No.1 as Ex.PW1/B. This witness further deposed

that had the respondent No.1 continued in service, his salary would

have been increased by 10% to 12% per annum and he would have

drawn about ` 10,000/- per month as on the date of recording of his

evidence. In his cross-examination, the witness clarified that the

respondent No.1 was in permanent employment. The testimony of

this witness is unchallenged on record and thus it can safely be

concluded, as has been done by the learned Tribunal, that the

respondent No.1 was drawing a salary of ` 7,000/- per month at the

time of the accident. The learned Tribunal has thereafter held that the

respondent No.1 was a young boy of 23years and it can easily be

presumed that his income would have doubled in future and would

have become ` 14,000/- per month. His average monthly income

could thus be calculated by adding ` 14,000/- to ` 7,000/-, which

comes to ` 21,000/- and dividing it by 2, which comes to ` 10,500/-

per month or ` 1,26,000/- per annum.

25. The Tribunal further observed that though, as per the disability

certificate on record, the respondent No.1 had been certified to be

permanently disabled to the extent of 45% in relation to his whole

body on account of traumatic brain injury with left side hemiparesis

and dysanthia, he had, in fact, been rendered 100% disabled as he was

incapable of doing any work, his speech and eye-sight having been

affected, and as he had poor coordination of motor facilities and was

unable to walk properly. In the circumstances, he had suffered total

loss of earning capacity. Thus taking the multiplicand to ` 1,26,000/-

and adopting the multiplier of 17, the Tribunal held the respondent

No.1 to be entitled to a sum of ` 21,42,000/- towards loss of income,

which it rounded off to ` 21,45,000/-.

26. There is no manner of doubt that in the instant case the injured

has suffered severe damage to his brain resulting in impairment of his

motor facilities to the extent that he is unable to walk or talk properly,

rendering him unfit for any employment. The Tribunal, therefore, in

my view, was right in assessing the loss of earnings to be 100%.

Reliance was placed by the learned counsel for the respondent No.1

in this regard upon the following judgments:-

(i) Pratap Narain Singh Deo vs. Srinivas Sabata and Anr., AIR

1976 SC 222, wherein the expression "total disablement" has

been interpreted to mean such disablement as incapacitates the

injured for all work which he was capable of performing at the

time of the accident resulting in such disablement. In this case,

the injured was a carpenter by profession, who had suffered

loss of the left hand above the elbow, rendering him unfit for

the work of carpenter. A four-Judge Bench of the Supreme

Court held it to be a case of total disablement.

(ii) United India Insurance Co. Ltd. vs. Rameshbhai Somabhai

Vankar and Ors., 2007 ACJ 2029

A Division Bench of the Gujarat High Court in this case

dismissed the appeal of the appellant - Insurance Company

which sought to assail the judgment of the Tribunal on the

ground that the Tribunal had committed grave error in coming

to the conclusion that the total disability of the claimant was

50% for the body as a whole and contending that the Tribunal

ought not to have assessed the disability of the claimant more

than 25% of the body as a whole of the claimant. The Division

Bench, observing that due to the accident the life of a young

man had become miserable, his vision of one eye was seriously

affected, he was not able to speak and his entire body starts

trembling after sometime, held that the Tribunal had committed

no error in assessing the disability at 50% for the body as a

whole of the claimant. In fact, it was 100% disability as the

claimant was not able to do anything in his life and perhaps had

to live the rest of his life like an animal.

(iii) Oriental Insurance Company Limited vs. Mohan and Ors.,

III (2003) ACC 649

In this case, though the doctor had assessed the disability

to the extent of 48%, a Division Bench of the Madras High

Court observed that it was for the authority concerned to assess

the loss of earning capacity on the basis of the available

material, namely, the medical certificate, disability certificate,

evidence of doctor, evidence of injured applicant, avocation

and the nature of work to be done in future. Taking note of the

fact that the injured was a driver by profession, the Division

Bench held his loss of earning capacity to be to the extent of

100%.

(iv) Rayapati Venkateswara Rao vs. Mantai Sambasiva Rao and

Anr., II (2001) ACC 300

In this case, a learned Single Judge of the Andhra

Pradesh High Court, after examining the entire gamut of case

law, held that even though according to the doctor the physical

disability sustained by the injured was 20-25%, he had lost his

100% earning capacity and was entitled for 100%

compensation. In this case, the injured was a cleaner, who was

rendered incapable of performing his duty as a cleaner, as he

was performing prior to the accident, as he had to use a stick to

walk after the accident.

27. In a recent judgment rendered by the Supreme Court in Civil

Appeal No.8981/2010 [arising out of SLP(C) No.10383/2007] titled

Raj Kumar vs. Ajay Kumar and Anr. decided on 18.10.2010, the

Hon'ble Supreme Court unequivocally held that where the claimant

suffers a permanent disability as a result of injuries, the assessment of

compensation under the loss of future earnings, would depend upon

the effect and impact of such permanent disability on his earning

capacity. The Tribunal should not mechanically apply the percentage

of permanent disability as the percentage of economic loss or loss of

earning capacity. What is required to be assessed by the Tribunal is

the effect of the permanent disability on the earning capacity of the

injured, and after assessing the loss of earning capacity in terms of a

percentage of the income, it has to be quantified in terms of money to

arrive at the future loss of earnings by applying the standard

multiplier method used to determine loss of dependency.

28. Applying the aforesaid dicta enunciated by the Hon'ble

Supreme Court, in the present case, the functional disability of the

respondent No.1, in my view, was rightly assessed to be 100% by the

learned Tribunal. As regards the calculation of future loss of earnings

of the respondent No.1, there is unrebutted evidence on record to

show that the income of the injured-claimant at the time of the

accident was ` 7,000/- per month. Adding 50% to the said income

towards the future prospects of the injured-claimant, in consonance

with the judgment of the Supreme Court rendered in the case of Smt.

Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr.,

(2009) 6 SCC 121, the net income of the injured-claimant is assessed

to be in the sum of ` 10,500/- per month, i.e., ` 1,26,000/- per annum.

The multiplier applicable in the instant case would be the multiplier

of 18 in accordance with Sarla Verma case (supra), and thus

calculated, the loss of earnings would be ` 22,68,000/-. The Tribunal

has, however, taken the multiplier of 17 and I see no reason to

interfere with the multiplier adopted by the Tribunal. The loss of

earnings of the respondent No.1 are accordingly held to be in the sum

of ` 21,45,000/-, as assessed by the Tribunal.

29. Adverting to the second ground sought to be urged by the

learned counsel for the appellant that a deduction of one-third ought

to have been made towards the personal and living expenses of the

injured, I am afraid this contention is devoid of substance and cannot

be accepted. The reliance upon Charlie's case (supra) is also

misplaced. All that was held in the said case was that in a case where

the injured had suffered 100% disability, the logic applicable to a

deceased can, in appropriate cases, taking note of all relevant factors,

be reasonably applied. The said judgment is, therefore, of no

assistance to the appellant and as a matter of fact in a subsequent

decision rendered by the Hon'ble Supreme Court in Oriental

Insurance Company Ltd. vs. Ram Prasad Varma and Ors., (2009) 2

SCC 712, the following pertinent observations were made:-

"9. One-third amount is deducted from computation of compensation from the total income on the premise that some expenses were necessary for one's own survival. Incidentally, we may notice that in the note appended to the Second Schedule, the amount of compensation arrived at in the case of fatal accident claims is required to be reduced by one-third in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. A person, although alive, but when he is not in a position to move and even for every small thing he has to depend upon the services of another, in our opinion, a direction to deduct one-third of the amount from his total income need not always be insisted upon.

10. Our attention, however, has been drawn to a decision of this Court in New India Assurance Co. Ltd. v. Charlie wherein one- third was directed to be deducted towards personal expenditure; we do not find that any legal principle was laid down therein. It also does not appear that the premise on which such

deduction is allowed and what would happen in a case, where such a premise does not exist, did not fall for consideration. In Charlie, this Court itself opined that in a case, where the injured had suffered 100% disability, the legal principle for determination of compensation applicable to a deceased can, in appropriate cases, taking note of all relevant factors, be reasonably applied even in a case of totally permanent disabled person."

30. In Raj Kumar's case (supra), it was again clarified that in the

case of an injured-claimant with a disability, what is calculated is the

future loss of earning of the claimant, payable to the claimant (as

contrasted from loss of dependency calculated in a fatal accident,

where the dependent family members of the deceased are the

claimants). Therefore, the Court held, there is no need to deduct one-

third or any other percentage from out of the income, towards the

personal and living expenses. The Tribunal in the present case,

therefore, rightly refused to deduct one-third for the personal

expenses of the injured-claimant.

31. As regards the other heads of claim, the Tribunal awarded a

sum of ` 25,000/- towards conveyance charges and ` 25,000/-

towards special diet. A sum of ` 50,000/- was awarded towards

attendant charges, taking into account the leave certificate

(Ex.PW1/N) of the father of the respondent No.1, who had to avail

leave of 54 days from his office, and his payslip Ex.PW1/G, which

showed his income to be ` 17,389/- per month. Apart from this, a

sum of ` 2 lakhs was awarded to the respondent No.1 for the pain and

agony suffered by him and a sum of ` 3 lakhs towards loss of future

prospects, loss of marital prospects and, loss of amenities and

enjoyment of life, i.e., in all ` 33,45,000/-, including the sum of `

25,000/- paid by way of interim compensation.

32. The award of the sum of ` 2 lakhs towards pain and suffering

endured by the respondent No.1 and the further sum of ` 3 lakhs in

all towards loss of future prospects, loss of amenities of life, and loss

of marital prospects appears to be justified in the instant case. The

injured was a young man of 23 years at the time of the accident and

his whole life has been ruined by the accident and the severe damage

caused thereby to his brain, speech, eye-sight and motor facilities. He

is unable to engage in any work as he can neither walk nor talk

properly and consequently, he is unmarried and his existence for all

practical purposes is a futile one.

33. In view of the aforesaid, the award of the Tribunal is upheld

with the modification that interest will be paid at the rate of 7.5% per

annum by the appellant instead of 9% per annum as awarded by the

learned Tribunal.

34. The appeal is disposed of accordingly. CM No.16111/2004

and CM No.2422/2005 also stand disposed of.

REVA KHETRAPAL (JUDGE) March 31, 2011 km