Delhi High Court
Mohd. Nafis Ahmad vs Rajesh Kumar & Ors on 24 April, 2012
Author: G.P. Mittal
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th April, 2012
+ MAC. APP. No.741/2010
MOHD. NAFIS AHMAD ..... Appellant
Through: Mr. R.K. Bacchan with
Mr. Divyanshu Mishra, Advocates
Versus
RAJESH KUMAR & ORS ..... Respondents
Through: Mr.Saurabh Sharma, Advocate for
Respondents No.1 and 2.
Ms. Gunjan, Advocate for
Mr. Kanwal Chaudhary, Advocate
for Respondent No.3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `7,06,916/-
awarded to the Appellant for having suffered injuries in a
motor accident which occurred on 06.08.2006.
2. The Claims Tribunal by the impugned judgment/order dated
01.06.2010 and 06.07.2010 awarded the compensation which is
tabulated hereunder:
S.No. Compensation under Awarded by the
various heads Claims Tribunal
1. Medical Expenses `1,01,720/-
2. Conveyance `25,000/-
3. Special Diet `15,000/-
4. Attendant Charges `10,000/-
5. Loss of Income `59,616/-R
6. Loss of Prospective `2,20,580/-
Income
7. Pain & Suffering, `2,50,000/-
Curtailment of
Enjoyment of Life
8. Future Medical `25,000/-
Expenses
Total `7,06,916/-
3. The following contentions are raised on behalf of the Appellant:
i) The Appellant was engaged in manufacturing
springs in the name and style of M/s U Like
Springs. He was an Income Tax assessee and filed
an Income Tax Return for the income of `51,000/-
in the A.Y. 2003-04. He filed an Income Tax
Return for `1,39,300/- (including agricultural
income of `60,000/-) for the A.Y. 2004-05. The
office copy of the Income Tax Returns were duly
proved as Ex.PW1/G (collectively). The Claims
Tribunal instead of taking the income on the basis
of Income Tax Returns erred in taking minimum
wages to compute the loss of income and loss of
earning capacity.
ii) The Appellant suffered 74% disability in respect of
his left lower limb because of FUC of compound
fracture of both bone left leg with discharging
sinus. By the disability certificate dated 26.02.2009
issued by the Medical Board of Lal Bahadur Shastri
Hospital, the doctors opined that his condition was
non-progressive and he was not likely to improve in
his permanent disability. The Appellant remained
under treatment from 06.08.2006 to 31.01.2009 as
an Indoor and Outdoor patient. The compensation
for loss of income was awarded just for a period of
18 months and loss of earning capacity to the extent
of 37% was very low. The functional disability, in
the circumstances, should have been taken as 74%.
iii) The Appellant was awarded a lumpsum
compensation of `10,000/- towards attendant
charges, although he remained under treatment for a
period of almost three years and can still walk only
with the help of crutches.
iv) The compensation awarded towards pain and
suffering and other non-pecuniary heads is very
low.
4. On the other hand, it is urged on behalf of the Respondent
Insurance Company that the Appellant suffered 74% disability
in respect of his left lower limb and the Claims Tribunal was
right in taking the disability to be 37% in respect of the whole
body. The Income Tax Returns, argued the learned counsel,
were rightly discarded by the Claims Tribunal as the Income
Tax Officer was not produced to prove the genuineness of the
Income Tax Returns for the A.Y. 2003-04 and 2004-05. The
Claims Tribunal, therefore, rightly took the help of minimum
wages fixed under the Minimum Wages Act to award the loss
of income and loss of earning capacity. It is urged that the
compensation awarded is just and reasonable and does not call
for any interference.
5. First of all, I shall deal with the question of the Appellant's
income. The Appellant filed his affidavit Ex.P1. He testified
that he was the sole bread-earner of his family. He used to earn
`10,000/- per month. He proved the ITRs for the A.Y. 2003-04
and 2004-05 and the copy of the PAN Card Ex.PW1/G
(collectively). As per the ITR for the A.Y. 2003-04, the
Appellant returned an income of `51,000/- and for the A.Y.
2004-05 he returned an income of `1,39,000/- (including
income from agriculture as `60,000/-). Thus, for the A.Y.
2004-05, the Appellant had an income of `79,000/- from his
business of manufacturing springs. In cross-examination on
behalf of the Insurance Company, the Appellant deposed that
he had produced his ITRs to prove his income. He denied the
suggestion that the documents produced by him were
fabricated for the purpose of putting up a false claim. The
office copy of the ITRs with a receipt from the Income Tax
Department were admissible in evidence unless the Respondent
proved that those were fabricated. It is urged by the learned
counsel for the Respondent Insurance Company that in the
A.Y. 2003-04, the Appellant did not have any income from
agriculture, whereas in the A.Y. 2004-05 he had an income of
`60,000/- from agriculture which would lead to an inference
that the ITRs were not genuine. I would not agree with the
contention raised on behalf of the Insurance Company. The
Appellant showed his income as `51,000/-(in the A.Y.2003-04)
as there was no income from the agriculture. The details of the
total tax and various expenditures in running the factory were
depicted in both the ITRs. In the absence of any rebuttal from
the Insurance Company, I do not find any reason to disbelieve
the ITRs (Ex.PW1/G Colly). On adding the income for the
A.Y. 2003-04 and 2004-05 (`51,000/- and `79,000/-
respectively) (excluding income from agriculture), the average
income comes to `65,000/- per annum. Since the business
could be high or low, I would accept the above said average
income to award the loss of income for the period the
Appellant was unable to attend to his work and towards the
loss of earning capacity.
6. The serious nature of injuries suffered by the Appellant is
apparent from the six photographs (mark "A" collectively)
placed on the record of the Claims Tribunal. He remained
admitted in various hospitals and underwent series of surgeries
and procedures, which are extracted hereunder:
S.No. Name of the Hospital Period
1. Lal Bahadur Shastri Hospital 06.08.2006 to 14.09.2006
2. Lal Bahadur Shastri Hospital 14.09.2007 to 25.09.2007
3. Bimla Devi Hospital 09.01.2008 to 11.01.2008
4. Himalayan Hospital 24.06.2008 to 10.07.2008
5. Himalayan Hospital 07.08.2008 to 09.08.2008
6. Himalayan Hospital 16.01.2009 to 30.01.2009
7. As stated above, the Appellant remained admitted in various
hospitals from 06.08.2006 to 30.01.2009. He underwent
successive surgeries and external fixator was fixed to unite the
bones. A tube was affixed to pass urine as there was blockage
in the urinary track. It is, therefore, established that the
Appellant was an Indoor and Outdoor patient and was unable
to attend to his work for the period of 06.08.2006 till at least
30.01.2009. Instead of the loss of income for a period of 30
months, at the rate of minimum wages as granted by the Claims
Tribunal, I would award a compensation of `1,62,500/-.
(`65,000/- ÷ 12 X 30) towards the loss of income.
8. The Appellant remained confined to bed during the long
duration of his treatment. The treatment papers from various
hospitals have been proved on the record before the Claims
Tribunal. He needed the services of an attendant to look after
him during the period of his treatment. Although, the
Appellant deposed that he had employed one person as an
attendant to look after him, yet even if some or the other
family member rendered gratuitous services to the Appellant,
he cannot be denied compensation for the same. I am
supported in this view by the judgment of a Division Bench of
this Court in Delhi Transport Corporation and Anr. v. Lalita
AIR 1981 Delhi 558 where this Court held that there cannot be
any deduction if domestic help is obtained from a family
member. The High Court observed as under:
".......A wrong doer cannot take advantage of this
„domestic element‟. If the mother renders service
to her, instead of a nurse, it is right and just that
she should recover compensation for the value of
the services that the mother has rendered to her.
Mother‟s services were necessitated by the wrong
doing and the injured should be compensated for
it. (Cunnigharn v. Harrison 3 All E.R. 463) The
services of a wife and mother are worth more than
those of a house-keeper because she is in constant
attendance and does many more things than a
house-keeper. (Regan v. Williamson (1976) 2 All
E.R. 241)."
The minimum wages of an unskilled worker on the date of the
accident was `3312/-. I, therefore, award him a compensation
of `99,360/- for a period of 30 months instead of `10,000/-
awarded by the Claims Tribunal.
9. As far as the loss of future earning capacity is concerned, the
Claims Tribunal took the permanent disability to be 37% in
respect of the whole body. In fact, it was represented before
the Claims Tribunal that the disability should be taken as 37%
in respect of the whole body and on Respondent's application,
the compensation on account of the loss of earning capacity
was reduced from 100% to 37% by an order dated 06.07.2010.
10. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court brought out the difference between permanent
disability and functional disability resulting in the loss of
earning capacity. It was laid down that the compensation on
account of loss of earning capacity has to be granted in
accordance to the nature of job undertaken by the victim of
motor accident. Paras 11 and 14 of the report are extracted
hereunder:
"11. What requires to be assessed by the
Tribunal is the effect of the permanently 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
terns of money, to arrive at the future loss of
earnings (by applying the standard multiplier
method used to determine loss of dependency). We
may however note that in some cases, on
appreciation of evidence and assessment, the
Tribunal may find that percentage of loss of
earning capacity as a result of the permanent
disability, is approximately the same as the
percentage of permanent disability in which case,
of course, the Tribunal will adopt the said
percentage for determination of compensation (see
for example, the decisions of this Court in Arvind
Kumar Mishra v. New India Assurance Co. Ltd.
2010 (10) SCC 254 and Yadava Kumar v. D.M.,
National Insurance Co. Ltd. 2010 (10) SCC 341.
x x x x x x x
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 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."
11. Thus, the disability might have a different impact on the earning
capacity of an injured following a different vocation. In the
instant case, the Appellant was running his own small unit for
manufacturing springs in the name and style of M/s U Like
Springs. He had an income of `51,000/- for the A.Y. 2003-04
and an income of `79,000/- for the A.Y. 2004-05. As per the
summarised details towards the expenditure in his business, the
Appellant himself paid a salary of `30,000/- to the workers and
`20,000/- on account of the job work obtained. In the A.Y.
2004-05, he paid a salary of `36,000/-. Thus, it is established
that the Appellant was himself responsible for looking after the
entire manufacturing process. He (the Appellant) suffered
injuries resulting into 74% disability in respect of his left lower
limb because of compound fracture of both bone left leg with
discharging sinus. Although the Appellant testified that he was
unable to perform the work either on account of the injuries
suffered by him, this disability was rightly taken to be 37% in
respect of the whole body considering the nature of job
performed by the Appellant. The loss of earning capacity,
therefore, would come to `3,60,750/- (`65,000 X 37% X 15).
12. The Claims Tribunal awarded a compensation of ` 2,50,000/-
towards pain and suffering, loss of amenities and loss of
enjoyment of life. In the case of Govind Yadav v. New India
Assurance Co. Ltd., 2011(10) SC 683, the Supreme Court
granted a compensation of `1.5 lakhs towards pain and
suffering and `1.5 lakhs towards loss of amenities and loss of
marriage prospects in an accident resulting in 70% disability on
account of amputation of limb which occurred in the year
2004. In this case, the disability certificate shows that the
Appellant is unable to walk without the help of crutches.
Considering the nature of injuries and duration and the fact that
this accident occurred in the year 2006, out of the
compensation of `2.5 lakhs a compensation of `1 lakh can be
considered towards pain and suffering and `1.5 lakhs towards
loss of amenities in life.
13. The compensation is reassessed as under:
S.No. Compensation Awarded by the Awarded by this
under various Claims Tribunal Court
heads
1. Medical `1,01,720/- `1,01,720/-
Expenses
2. Conveyance `25,000/- `25,000/-
3. Special Diet `15,000/- `15,000/-
4. Attendant `10,000/- `10,000/-
Charges
5. Loss of `59,616/-R `1,01,760/-
Income
5. Loss of `2,20,580/- `1,62,500/-
Prospective
Income
6. Pain & `2,50,000/- `2,50,000/-
Suffering,
Curtailment of
Enjoyment of
Life
7. Future Medical `25,000/- `25,000/-
Expenses
8. Loss of - `3,60,750/-
Earning R
Capacity
Total `7,06,916/- `10,51,730/-
14. The overall compensation is enhanced from `7,06,916/- to
`10,51,730/- which shall carry interest @ 7.5% per annum
from the date of filing of the Petition till its payment. The
enhanced compensation along with interest shall be deposited
by the Respondent Insurance Company in UCO Bank, Delhi
High Court Branch in the Appellant's name which shall be held
in Fixed Deposit for a period of five years.
15. The Appeal is allowed in above terms.
CM. APPL No.7330/2012(for release of amount)
16. This application has been moved by the Appellant for release of
the amount of `4,13,722/- kept in the Fixed Deposit for a
period of five years which is to mature on 25th July, 2015. It is
urged that marriage of Ms. Ruksar Parveen, daughter of the
Appellant is going to be held on 26.04.2012. An amount of
`2,50,000/- shall be released to the Appellant out of the said
Fixed Deposit. Rest of the amount shall be kept in the Fixed
Deposit which will mature on 20.07.2015.
17. The application stands disposed of.
(G.P. MITTAL)
JUDGE
APRIL 24, 2012
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