Delhi High Court
Bajaj Allianz General Insurance ... vs Poonam Arora & Ors on 1 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st August, 2012
+ MAC. APP. 833/2010
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Ms. Neerja Sachdeva, Adv.
versus
POONAM ARORA & ORS. ..... Respondents
Through Mr. S.N. Parashar, Adv
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. Ms. Poonam, a girl aged 17 years (at the time of the accident which
occurred on 19.11.2008) while proceeding to her school in a cycle
rickshaw suffered injuries in a motor vehicle accident which occurred on
19.11.2008, resulting into amputation of her right leg below knee.
2. A Disability Certificate Ex.PW-1/7 was issued by Sanjay Gandhi
Memorial Hospital, Mangol Puri declaring her to be a case of permanent
disability to the extent of 60% in respect of her right lower limb.
3. The Appellant was a student of 10th standard at the relevant time. She
completed her Matriculation after the accident. The Motor Accident
Claims Tribunal (the Claims Tribunal) awarded compensation of
`14,53,185/- which is tabulated hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Medical Expenses `54,173/-
2. Conveyance Charges ` 20,000/-
3. Special Diet ` 20,000/-
4. Loss of Earning Capacity ` 6,27,912/-
5. Costs of Affixation of Artificial Limb ` 1,23,100/-
6. Change of Artificial Limb/Parts, Repairs ` 1,00,000/-
in Future
7. Pain and Suffering ` 1,00,000/-
8. Loss of Amenities of Life ` 1,00,000/-
9. Physical Disfigurement ` 1,00,000/-
10. Loss towards Marital Prospects ` 1,00,000/-
11. Loss on account of Conveyance ` 1,08,000/-
TOTAL ` 14,53,185/-
4. The Appellant Insurance Company has come up with this Appeal with the
plea that the compensation awarded is exorbitant and excessive.
5. It is urged that the Claims Tribunal considered the loss of earning
capacity to be 50% in respect of whole body which was without any
objective material. Since the Claimant was not working on the date of the
accident, instead of awarding her compensation on the basis of Minimum
Wages of a non-Matriculate she should have been awarded compensation
on notional income of `15,000/-.
6. Insurance Company says that the compensation of `1,08,000/- awarded
towards future conveyance was without any evidence, particularly, when
the First Respondent was adequately compensated for getting an artificial
limb as also for its repair etc. The compensation of `1,00,000/- each
awarded towards pain and suffering, loss of amenities of life, physical
disfigurement and loss of marital process is claimed to be on the higher
side.
7. 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."
8. Thus, the same disability may have a different impact on the earning
capacity of an injured following a different vocation.
9. In the instant case, the First Respondent was a student of 10 th standard at
the time of the accident. It has come in evidence that she completed her
Matriculation after the accident. It would be very difficult to say, at this
stage, as to how the injuries suffered by her would have an impact on her
earning capacity. The First Respondent examined PW-3 Dr. Sanjay
Kumar, Junior Specialist (Ortho), Sanjay Gandhi Memorial Hospital,
Mangol Puri, Delhi who testified that the amputation was below knee
upto lower one-third. He deposed that the First Respondent would be
able to walk almost normal with an artificial limb but she would not be in
a position to run, squat, sit, cross legs. She would always have difficulty
in climbing stairs. He testified that she would be incapacitated to do the
physical work normally. She would be able to do any sitting work but
would not be able to drive a vehicle.
10. In the circumstances, the Claims Tribunal was not justified in accepting
the loss of future earning capacity to the extent of 50%.
11. Taking into consideration all the facts mentioned above, I would make a
guess work to assess the loss of earning capacity in case of a student to be
40% with regard to the whole body.
12. The Claims Tribunal awarded compensation taking minimum wages of a
Non-Matriculate. It is well settled that potential income of a person can
be taken into consideration while awarding compensation for loss of
earning capacity or to the legal heirs for awarding loss of dependency.
The First Respondent completed her Matriculation during the inquiry
before the Claims Tribunal. Even if she does not go for any higher
education, she should have been awarded compensation on the basis of
Minimum Wages of a Matriculate. The contention raised on behalf of the
Appellant that notional income of `15,000/- should be taken to award
compensation towards loss of future earning capacity, is misconceived
and is therefore rejected.
13. The First Respondent admittedly was 17 years on the date of the accident
and was a student of 10th standard. She crossed the age of 18 years during
the pendency of the Claim Petition. Thus, the loss of earning capacity
should have been awarded on the minimum wages of a Matriculate. The
Claims Tribunal made an addition of 50% towards the future prospects.
In the absence of any evidence and following Santosh Devi v. National
Insurance Company Ltd. & Ors.,2012 (4) SCALE 559; I would grant an
increase of 30% only towards future prospects/inflation. The loss of
future earning capacity comes to `4,63,993/- (4131/- + 30% x 12 x 18 x
40%) instead of `6,27,912/- awarded by the Claims Tribunal.
14. In the matter of Govind Yadav v. New India Assurance Co. Ltd., 2011(10)
SC 683, the Supreme Court had the occasion to deal with the case of an
amputation of leg above knee of a victim aged 24 years in a motor
accident which took place in the year 2004. The Hon'ble Supreme Court
granted a sum of `1.5 lakhs towards pain and suffering and `1.5 lakhs
towards loss of amenities in life and loss of marriage prospects. In this
case, the amputation is below the knee and the First Respondent was aged
17 years on the date of the accident. The First Respondent is a girl where
loss of one limb causes a stigma and is a great hindrance in marriage.
15. In the circumstances, the award of compensation of `4,00,000/- in all i.e.
`1,00,000/- each towards pain and suffering, loss of amenities in life,
physical disfigurement and loss of marital process, cannot be said to be
excessive as this accident took place almost four years after the accident
in Govind Yadav.
16. In the circumstances, I am not inclined to interfere in the award of
compensation under non-pecuniary heads.
17. As far as award of compensation on account of future conveyance is
concerned, as stated earlier PW-3 has stated that she would be able to
walk almost like a normal person. Travelling in a public transport with
low floor DTC buses and Delhi Metro would not be a great handicap.
Since she has been awarded compensation towards loss of amenities and
under other non pecuniary heads, awarding compensation towards any
loss on account of conveyance is not justified. Thus the award of
compensation of `1,08,000/- under this head is set aside.
18. No other contention has been raised.
19. There is overall reduction in the compensation by ` 2,71,919/-.
20. The excess amount of ` 2,71,919/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company. The amount payable to
the First Respondent shall be disbursed in terms of the impugned
judgment.
21. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company.
22. No costs.
23. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 01, 2012
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