Oriental Insurance Company vs Jagdish Kumar & Ors.
2011 Latest Caselaw 4439 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 12.09.2011


+       MAC Appeal No 100/2010 & CM Nos.11550-51/2010


ORIENTAL INSURANCE COMPANY           ...........Appellant
                 Through: Mr. L.K. Tyagi, Advocate.

                   Versus


JAGDISH KUMAR & OTHERS                          ..........Respondents
                  Through:           Mr.Sahil Aeron, Advocate

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. The Award impugned before this Court is the Award dated

02.12.2009 vide which a total compensation in the sum of

Rs.8,37,236/- along with interest @ 7.5% per annum had been

granted in favour of the claimant/petitioner. The claimant was the

injured himself; he had suffered an accident on 08.05.2007 near

Balaji Hospital, Paschim Vihar, when he was getting ready to

board a bus; the bus had run over his left foot; because of this

injury, his left foot had to be amputated; he had suffered

permanent disability of 60%.

2. Record shows that the petitioner was doing the job of a

helper in a DTC bus; on the fateful day, the petitioner was getting

the bus reversed when all of a sudden the driver turned the bus

without seeing the indication given by the petitioner and as a

result, the bus ran over the left foot of the petitioner; he was

taken to the Balaji Hospital where his foot had to be amputated.

FIR under Section 279/338 of the Indian Penal Code had been

registered against the driver. Oral and documentary evidence was

led pursuant to which the aforenoted amount had been awarded

in favour of the petitioner.

3. The grievance of the Insurance Company is on three counts;

contention is that the future prospectus have been considered on

the minimum wages of the petitioner when in view of the

judgment of the 2009 (6) Scale 129 Sarla Verma & others Vs.

Delhi Transport Corporation and another, future prospects

should not have been considered. The awarded amount of

Rs.4,12,236/- under the head of „loss of earning capacity‟ is thus

liable to be set aside. The second grievance is that the amount

awarded under the head of non-pecuniary damages i.e. under the

claim listed at serial Nos. 6, 7, 8, & 9 are also on the higher side;

these amounts total a sum of Rs.3.5 lacs; there was no evidence of

future expenses for the change of artificial limb and the sum of

Rs.1 lac granted on this count also suffers from an infirmity. This

amount also being on the higher side is liable to be set aside. The

last grievance of the petitioner is that the driving license of the

driver had expired and this has been noted by the Tribunal in para

47; attention has been drawn to this finding whether the Tribunal

had noted that the driving license of the driver had expired on

14.01.2007 and as such on the date of accident which was on

08.05.2007, the respondent did not have any valid or effective

driving license. Submission is that in view of judgment of the Apex

Court reported in IV (2008) ACC 714 (SC) National Insurance

Company. Ltd. Vs. Vidhyadhar Mahariwala & others, the

Insurance Company is not liable in any manner; although

admittedly recovery rights had been granted in favour of the

Insurance Company yet the contention of the appellant is that no

liability could have been foisted upon the Insurance Company in

any manner.

4. Arguments have been refuted.

5. This is an injury case; compensation for loss of earning

capacity has been computed at Rs.4,12,236/-. This figure has

taken inflation and index price rise into account. Guidelines in

injury cases have been laid down by the Apex Court for calculating

compensation under the head of „loss of future income‟ in the case

of Raj Kumar Vs. Ajay Kumar & Anr.,(2011) 1 SCC 343. In this

case the Apex Court had noted as follows:

"General principles relating to compensation in injury cases The provision of the Motor Vehicles Act, 1988 („Act‟ for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his liability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C.K.Subramonia Iyer, v. T. Kunhikuttan Nair- AIR 1970 Supreme Court 376, R.D. Hattangadi v. Pest Control (India) Ltd.- 1995 (1) SCC 551 and Baker v. Willoughby -1970 AC 467)."

The victim in this case has suffered the amputation of his

left foot; his permanent disability had been recorded at 60%. The

formula for the calculation of his compensation under the head of

„loss of earning capacity‟ at `4,12,236/- suffers from infirmity. It is

not in accordance with the guidelines laid down in Raj Kumar

(supra). The inflated figure of `5205/- per month was not the

correct approach; minimum wages criteria had been applied

which on the date of the accident were `3270/- per month. Thus

the calculated figure would read as `3270x12x11x

60/100=`2,58,984/-. This figure of `2,58,984/- is substituted for

`4,12,236/- under the head of „loss of earning capacity‟.

6. The sum of `3.5 lacs awarded under the head of „non-

pecuniary damages‟ is a fair discretion exercised by the Tribunal;

PW-2 the Doctor had testified on oath that an artificial limb is to

be affixed; without which the victim would not be able to walk.

The Apex Court in the case reported in III (2002) ACC 766 (SC)

Naggapa Vs. Gurudayal Singh & Others while dealing with the

case of an artificial implant had noted that an artificial implant is

required to be changed every 2-3 years; in that case, a sum of `1

lac on the count of future medical expenses for the change of

artificial limb had been granted. This guideline has been followed

by the Tribunal in awarding a sum of `1 lac under the head of

„future expenses for change of artificial limb‟.

7. The Courts have time and again noted that the physical

frame work which has been lost of a permanently disabled victim

can never be reframed; no amount of monetary compensation can

compensate him for this battering and shattering of his physical

frame; the object of compensation is to place the claimant as far

as possible in the same position, financially as he was before the

date of accident; the Supreme Court had made these observations

in the case of AIR 2003 SC 4172 Divisional Controller, KSRTC Vs.

Mahadeva Shetty & Another; non-pecuniary damages thus

awarded in the sum of `3.5 lacs under the four different heads i.e.

compensation for „future expenses for change of artificial limb‟,

compensation for „pain and suffering‟, compensation for „loss of

amenities of life‟ and compensation for „physical disfigurement

due to permanent disability‟ do not call for any interference.

8. The last argument urged by learned counsel for the

appellant is propounded on the judgment of the Apex Court

reported in IV (2008) ACC 714 (SC) National Insurance Co. Ltd.

Vs. Vidhyadhar Mahariwala & Others. This judgment of the Apex

Court had noted with approval the observations made by the

earlier Bench of the Supreme Court in the case of II (2007) ACC

63 (SC) Ishwar Chandra & Others Vs. Oriental Insurance Co. Ltd.

& others. The landmark judgment dealing with the defence put up

by the Insurance Company as to whether their liability can be

avoided in view of a fake or invalid driving license had been dealt

with by the Supreme Court in the case of National Insurance

Company Limited Vs. Swaran Singh & others 1 (2004) ACC 1 (SC).

In the case of Ishwar Chandra (Supra) the observations made by

the Apex Court in Swaran Singh (Supra) were approved. The

appeal of the owner Ishwar Chandra had been dismissed; this was

a challenge made by the owner of the vehicle qua the recovery

rights which had been granted to the Insurance Company; appeal

has been dismissed.

9. In this case also, recovery rights have been granted to the

owner; by the impugned Award, the Insurance Company has been

directed to pay compensation to the claimants with liberty to

recover it from the owner of the offending vehicle; the recovery

rights granted to the Insurance Company does not call for any

interference. Appeal is modified only qua the claim of „loss of

earning capacity‟ as noted supra. No other modification is called

for. Appeal disposed of in the above terms.

INDERMEET KAUR, J.

SEPTEMBER 12, 2011 a