Delhi High Court
Shivpad Mandal vs The Oriental Insurance Co. Ltd. & ... on 29 November, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18th November, 2011
Pronounced on: 29th November, 2011
+ MAC APP. 415/2008
SHIVPAD MANDAL ..... Appellant
Through: Mr. R. S. Roy, Adv.
Versus
THE ORIENTAL INSURANCE
CO. LTD. & ORS. ..... Respondents
Through: Mr. Mr. Mohan Babu Agarwal with
Mr. Harkesh Chand Aggarwal, Advs.
For R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. This appeal is for enhancement of compensation in respect of an
accident which took place on 17.07.2004 resulting into serious
injuries on Appellant's person. The Appellant suffered 49%
disability in respect of the left limb. By impugned award the
Tribunal awarded the compensation as mentioned in para 27 of
the award, which is extracted hereunder: -
"Ld. Counsel for petitioner has submitted that on
account of disability petitioner will not be in a
position to enjoy the basic amenities of life.
Petitioner will not be in a position to walk, run or
to sit for passing of stool properly. In view of
disability having been suffered by the petitioner,
submission made by ld counsel for petitioner has
got force and I deem it expedient to allow the
request. Keeping in view the nature of injuries,
period of treatment and nature of treatment, I
deem it expedient to award a sum of ` 30,000/-
under the head of loss of amenities of life.
The amounts of compensation assessed
under the different heads are being chunked
together herein below: -
1 Treatment expenses : ` 5,500/-
2 Loss of earning : ` 20,300/-
3 Special diet,
conveyance and : ` 9,000/-
Attendant charges.
4 Pain and suffering : ` 40,000/-
5 Loss of Amenities : ` 30,000/-
6 Disability : ` 1,47,000/-
__________
` 2,51,800/-
__________
The Tribunal found that the accident took place on
account of equal negligence of TATA 407 No.HR-38G-3655
wherein the Appellant was travelling as a representative of the
owner of the goods and the Truck No.RJ-07G-4310 driven by
Respondent No.2. The Tribunal held that since the Appellant
had sued the driver, owner and Insurer of Truck No.RJ-07G-
4310, the Respondents were liable to pay only 50% of the
compensation awarded. Respondent No.1 (Oriental Insurance
Co. Ltd.) was directed to pay the compensation awarded being
Insurer of the Truck No.RJ-07G-4310.
2. An FIR bearing No.276 dated 17.07.2004 under Section 279/
337/ 304A IPC was registered in P.S. Sadar, Bhiwani against
the Respondent Amar Singh driver of Truck No.RJ-07G-4310
and not against the driver of TATA 407. Respondent Amar
Singh preferred not to enter the witness box to rebut the
Appellant's testimony in his examination-in-chief that the driver
of Truck No.RJ-07G-4310 was driving the Truck in a zig-zag
manner, brought it on the left side of the road and applied the
brakes all of a sudden. Thus on the basis of criminal case
registered against Respondent Amar Singh, his failure to contest
the claim petition and the Appellant's averment in the affidavit
Ex. PW-1/6 that the driver of the Truck was driving it in a zig-
zag manner and had applied its brake suddenly would be
sufficient to infer culpable negligence on the part of the
Respondent Amar Singh driver of the Truck No.RJ-07G-4310.
3. Otherwise also the fact whether there was negligence on the
part of both the vehicles or there was negligence on the part of
the driver of Truck No.HR-07G-4310 loses much significance
in view of the Supreme Court decision in T.O. Anthony v.
Karvarnan, (2008) 3 SCC 748 wherein it was held that in case
of composite negligence each wrong-doer is jointly and
severally liable to pay to the injured for payment of entire
damages and the injured has the choice to proceed against all or
any of them. It was held that the injured need not establish the
extent of responsibility of each wrong-doer separately, nor is it
necessary for the court to determine the extent of liability of
each wrong-doer separately. In view of the law laid down by
the Supreme Court, the Appellant could recover the damages
from the Respondents even if there was composite negligence
on the part of the drivers of both the vehicles.
4. Coming to the extent of compensation the contention raised on
Appellant's behalf is that the Tribunal fell into error in reducing
49% disability to the left limb to the extent of 20% disability
with respect to his whole body. The Appellant was working as
a fisherman. In the accident he suffered fracture Tibia left both
bones resulting into 49% disability to the left lower limb. The
Appellant even with this disability in the left lower limb can
continue to work as a fisherman and his earning capacity would
not be seriously impaired. In the case of Raj Kumar v. Ajay
Kumar & Anr., (2011) 1 SCC 343 it was held by the Supreme
Court that where a claimant suffers permanent disability as a
result of injuries, the assessment of compensation would depend
upon the fact of impact on his permanent disability with regard
to his earning capacity. Paras 13, 14 & 15 of the report are
extracted hereunder: -
"13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain what
activities the claimant could carry on in spite of the
permanent disability and what he could not do as a
result of the permanent disability (this is also relevant
for awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the
accident, as also his age. The third step is to find out
whether (i) the claimant is totally disabled from
earning any kind of livelihood, or (ii) whether in spite
of the permanent disability, the claimant could still
effectively carry on the activities and functions, which
he was earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his previous
activities and functions, but could carry on some
other or lesser scale of activities and functions so that
he continues to earn or can continue to earn his
livelihood.
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss
of earning capacity may virtually be hundred percent,
if he is neither able to drive or do carpentry. On the
other hand, if the claimant was a clerk in government
service, the loss of his left hand may not result in loss
of employment and he may still be continued as a
clerk as he could perform his clerical functions; and
in that event the loss of earning capacity will not be
100% as in the case of a driver or carpenter, nor 60%
which is the actual physical disability, but far less. In
fact, there may not be any need to award any
compensation under the head of 'loss of future
earnings', if the claimant continues in government
service, though he may be awarded compensation
under the head of loss of amenities as a consequence
of losing his hand. Sometimes the injured claimant
may be continued in service, but may not be found
suitable for discharging the duties attached to the post
or job which he was earlier holding, on account of his
disability, and may therefore be shifted to some other
suitable but lesser post with lesser emoluments, in
which case there should be a limited award under the
head of loss of future earning capacity, taking note of
the reduced earning capacity."
15. It may be noted that when compensation is
awarded by treating the loss of future earning
capacity as 100% (or even anything more than 50%),
the need to award compensation separately under the
head of loss of amenities or loss of expectation of life
may disappear and as a result, only a token or
nominal amount may have to be awarded under the
head of loss of amenities or loss of expectation of life,
as otherwise there may be a duplication in the award
of compensation. Be that as it may."
5. In the absence any specific evidence about the loss of earning
capacity the compensation of ` 1,47,000/- extracted in para 13,
14 & 15 above was really compensation towards loss of
amenities of life.
6. The Appellant would definitely have difficulty in walking,
using public transport and carrying out his day-to-day affairs as
also in pursuing his profession, if the amount of ` 1,47,000/- is
added in the head of loss of amenities of life and disfigurement.
The compensation under this head i.e. ` 1,47,000/- in addition to
the sum of ` 40,000/- for non pecuniary damages appears to be
just and reasonable. Thus, I do not find any ground to enhance
the compensation awarded.
7. It is proved that there was culpable negligence on the part of
Truck driver Amar Singh Respondent No.2. Respondents No.2
& 3 being the driver and owner are jointly and severally liable
to pay the compensation and Respondent No.1 being the Insurer
is liable to indemnify the owner. Respondent No.1 Insurance
Co. is directed to pay the entire compensation along with
interest @ 7% per annum (awarded by the Tribunal) within six
weeks.
8. The enhanced compensation (remaining 50%) shall be
deposited with the Registrar General within six weeks. 25% of
the amount deposited shall be released to the Appellant
forthwith while remaining amount shall be held in FDR in
Appellant's name in any nationalized Bank for a period of 3
years. The Appellant shall not be entitled to withdraw any
amount or to take any loan within the said period of 3 years
without the Court's permission.
9. The appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
NOVEMBER 29, 2011
hs
