Delhi High Court
Shainda @ Nishi vs Naresh Kumar @ Vikas & Ors. on 23 April, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd April, 2012
+ MAC. APP. 1077/2011
SHAINDA @ NISHI ...... Appellant
Through: Mr. Rajnish Kumar Jha, Adv.
Versus
NARESH KUMAR @ VIKAS & ORS....... Respondents
Through: Ms. Neerja Sachdeva, Adv. for
R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM APPL. 21730/2011 (delay)
1. There is a delay of 44 days in filing the Appeal. For the reasons
stated in the application, the Delay is condoned and the
application is allowed.
MAC APP. 1077/2011
2. The Appeal is for enhancement of compensation of
`10,04,900/- awarded to the Appellant for having suffered
injuries in an accident which occurred on 28.10.2007. The
Appellant mainly suffered injury to her left eye which according
to PW-2 Dr. Jolly Rohtagi, resulted in a disability of above 40%
but less than 75%.
3. The Appellant had passed her 10+2 (Secondary School
Examination). She wanted to pursue course in Chartered
Accountancy (CA). The Motor Accident Claims Tribunal (the
Claims Tribunal) in the absence of any evidence with regard to
the Appellant's income took the minimum wages of a
Matriculate i.e. `3964/- per month, added 50% on account of
inflation, took the loss of earning capacity to be 57% to award a
compensation of `6,15,420/-. The Claims Tribunal took the
Loss of Earning for a period of six months to award a sum of
`23,784/- ( 3964/- x 6).
4. The Claims Tribunal awarded a sum of `10,000/- towards
Conveyance Charges, `15,000/- on account of Attendant
Charges, `7,000/- towards Special Diet, `1,00,000/- for Pain
and Suffering, `1,00,000/- for Loss of Marriage Prospects (on
account of disfigurement) and `50,000/- on account of Loss of
Amenities/Expectations of Life.
5. In addition, a sum of `6,15,420/- was awarded towards Loss of
Future Earning Capacity.
6. In the absence of any Cross Appeal or Cross-Objections by
Respondents, the finding on negligence has become final
between the parties.
7. During the course of arguments, following contentions have
been raised on behalf of the Appellant:-
(i) The Appellant wanted to become a CA and, therefore, the
potential income of a CA ought to have been taken into
consideration by the Claims Tribunal to award loss of
future earning capacity.
(ii) The compensation of `1,00,000/- awarded towards Loss
of Marriage Prospects was very low.
8. On the other hand, it is urged by the learned counsel for the
Respondent No.3 Insurance Company that the Claims Tribunal
was very liberal in awarding the overall compensation of `
10,04,900/- for suffering permanent disability in Loss of Vision
which was assessed to be above 40% and less than 75%.
9. It has to be borne in mind that the Appellant passed her
Secondary School Examination on 28.05.2004. The overall
percentage of marks was just 55%. Although, the Appellant's
mark sheet for 10+2 Examination has not been placed on
record. Seeing the percentage of marks in Secondary School
Examination, it is evident that the Appellant was an average
student who would not have got admission in a B.A. Course in
any College in this city. After taking the Common Proficiency
Test, the Appellant was expected to pass Integrated Professional
Competence Course (IPCC) Examination and undergo three
years training before taking the final examination in the CA
Course. Thus, seeing the track record of the Appellant, it would
be difficult to say at this stage that the Appellant would have
passed the CA Examination and thus the potential income of a
CA as claimed by the learned Counsel for the Appellant could
not have been taken into consideration to compute the loss of
future earning capacity.
10. The Claims Tribunal dealt with the Appellant's permanent
disability in Para 18 of the impugned judgment. The relevant
portion is extracted hereunder:-
"18. PW2 has deposed that the Petitioner has suffered
permanent visual disability above 40% but less than 75%.
Taking the man of both the percentages the permanent
visual disability would be 57.5%. Petitioner is stated to be
suffering with practically no vision in her left eye. PW2
has deposed her vision will not improve even after surgery
and she may see two images of one object. From her right
eye also the Petitioner is also unable to see the temporal
half of the field. The eyes are one of the main organ of
human body on which the entire functioning of the human
body is dependent....."
11. During inquiry before the Claims Tribunal it was claimed that
the Appellant was doing tuition work and getting a salary of `
6,000/- per month. In the absence of any cogent evidence with
regard to the same, the income was taken to be not proved by
the Claims Tribunal. The Claims Tribunal awarded the
compensation on assuming the loss of earning capacity as
57.5% on the assumed income of `4955/-. It would be only
speculation to accept the income of a person who has passed
10+2 Examination to be more than `5,000/- when in the year
2007 at the time of the accident the minimum wages of a
Graduate were just `4267/- per month.
12. Similarly, the percentage of disability to the extent of 57.5%
was taken by the Claims Tribunal in respect of the whole body.
I would agree that the loss of vision to the extent of 57.5% in
one eye would materially affect the earning capacity of a person
and it may also cause difficulty to him/her in her normal
movement, in her studies and profession.
13. In my view, the Claims Tribunal was benevolent in taking the
loss of earning capacity as 57.5% and the award of
compensation of ` 6,15,420/- on account of loss of earning
capacity cannot be said to be low by any standard.
14. It is true that the Appellant was a young girl of 19 years on the
date of the accident. She has been adequately compensated
with a compensation of `1,00,000/- towards Loss of Marriage
Prospects in addition to a sum of `1,00,000/- towards Pain and
Suffering and ` 50,000/- towards Loss of Expectation of Life.
15. In Govind Yadav v. New India Insurance Co. Ltd. (2011) 10
SCC 683, in case of amputation of a leg above knee resulting
into 70% disability, a compensation of `1,50,000/- only was
awarded towards Loss of Amenities and Loss of Marriage
Prospects.
16. The compensation of ` 10,04,817/- cannot be said to be meager
by any standard; the same to my mind is adequate and does not
call for any interference.
17. The Appeal is devoid of any merit; the same is accordingly
dismissed.
(G.P. MITTAL)
JUDGE
APRIL 23, 2012
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