Delhi High Court
Gulam Nabi Bhat vs Md. Arman Ali & Ors on 7 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th August, 2012
+ MAC.APP. 335/2009
GULAM NABI BHAT ..... Appellant
Through: Mr. O.P. Mannie, Adv. with
Mr. Manish Maini, Adv.
versus
MD. ARMAN ALI & ORS ..... Respondents
Through: Mr. Pankaj Seth, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of ` 8,89,734/- awarded
by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour
of the Appellant for having suffered grievous injuries in a motor vehicle
accident which occurred on 16.10.2006.
2. In the absence of any Appeal by the driver, owner and the Insurer, the
finding on negligence has attained finality.
3. During inquiry before the Claims Tribunal it was averred that the
Appellant was a fruit merchant who would bring fruits from Jammu and
Kashmir and sell it in Subzi Mandi, Azadpur. It was alleged that he was
earning `7,000/- per month and that on account of the accident, the
Appellant has become paraplegic and totally disabled to carry out any
work. He cannot even stand of his own and do even the normal day to
day chores. The Claims Tribunal accepted that the Appellant is totally
disabled. The Claims Tribunal declined to accept the Appellant's income
to be `7,000/- per month. It, therefore, granted compensation on the basis
of minimum wages of non-Matriculate as per his qualification, added
50% towards future prospects, applied the multiplier of '18' and granted
compensation assuming his disability to be 75% and one-third thereof
was deducted towards misc. expenses.
4. The Claims Tribunal accepted that the deceased would need an Attendant
to look after him on day to day basis and awarded a lump sum
compensation of `1,50,000/- under this head. The compensation awarded
is tabulated hereunder:-
Sl.No. Compensation under various heads Awarded by the
Claims Tribunal
1. Pain and Injury `50,000/-
2. Medical Expenses ` 1,05,176/-
3. Conveyance Charges ` 10,802/-
4. Hotel Charges ` 6,000/-
5. Loss of Earning Capacity ` 5,67,756/-
6. Attendant Charges ` 1,50,000/-
Total ` 8,89,734/-
5. The following contentions are raised on behalf of the Appellant:-
(i) The Claims Tribunal erred in not accepting the deceased's income
as `7,000/- per month. In case of personal injury, the injured is
alive and therefore, no deduction can be made towards personal
and living expenses.
(ii) The compensation awarded towards Attendant charges was very
low and meager.
(iii) No compensation was awarded towards loss of amenities.
6. On the other hand, it is urged by the learned counsel for the Insurance
Company that the Appellant was in wholesale fruit business. He could
have engaged some workers to carry on business from his home. It is
contended that the Appellant's income of non-Matriculate was rightly
accepted by the Claims Tribunal in the absence of any cogent evidence
with regard to his income. It is urged that the compensation awarded is
just and reasonable.
7. Section 166 of the Motor Vehicles Act, 1988(the Act) enjoins payment of
just compensation. In General Manager, Kerala Road Transport
Corporation, Trivandrum v. Susamma Thomas & Ors., (1994) 2 SCC
176, the Supreme Court held as under: -
"5......The determination of the quantum must answer what
contemporary society "would deem to be a fair sum such as would
allow the wrongdoer to hold up his head among his neighbours
and say with their approval that he has done the fair thing". The
amount awarded must not be niggardly since the law values life
and limb in a free society in generous scales'. All this means that
the sum awarded must be fair and reasonable by accepted legal
standards."
8. In Arvind Kumar Mishra v. New India Assurance Company Limited,
(2010) 10 SCC 254, the Supreme Court dealt with the case of disability of
an engineering student. The Supreme Court observed that while
awarding compensation in personal injury cases, an attempt should be
made to put the injured in the same position as he was as far as money is
concerned. In para 9 of the report, the Supreme Court held as under:
"9. We do not intend to review in detail state of authorities in
relation to assessment of all damages for personal injury. Suffice
it to say that the basis of assessment of all damages for personal
injury is compensation. The whole idea is to put the claimant in
the same position as he was insofar as money can. Perfect
compensation is hardly possible but one has to keep in mind that
the victim has done no wrong; he has suffered at the hands of the
wrongdoer and the court must take care to give him full and fair
compensation for that he had suffered."
9. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka &
Ors., (2009) 6 SCC 1, the Supreme Court emphasized that cases of
serious injuries in motor vehicle accident are worse than the death cases
because the victim and his family suffers throughout life. Para 90 of the
report is extracted hereunder:-
"90. At the same time we often find that a person injured in an
accident leaves his family in greater distress vis-à-vis a family in a
case of death. In the latter case, the initial shock gives way to a
feeling of resignation and acceptance, and in time, compels the
family to move on. The case of an injured and disabled person is,
however, more pitiable and the feeling of hurt, helplessness,
despair and often destitution enures every day. The support that is
needed by a severely handicapped person comes at an enormous
price, physical, financial and emotional, not only on the victim but
even more so on his family and attendants and the stress saps their
energy and destroys their equanimity."
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 terms 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. I have before me the Trial Court record containing Ex.PW-3/A, the
medical record with regard to the Appellant's treatment in Hindu Rao
Hospital (running into 105 sheets). The Appellant suffered (i) transverse
fracture of L2 with complete separation into superior and inferior
segments and marked disarry of spinal canal & its contents at this level
and (ii) disc degeneration with disc herniation at L4-5 and L5-S1 level.
12. The Appellant remained admitted in Hindu Rao Hospital from
16.10.2006 to 23.10.2006. He was then admitted in City Hospital,
affiliated with Sir Ganga Ram Hospital, where he remained admitted
from 23.10.2006 to 02.11.2006. The Appellant underwent surgery in the
City Hospital. The documents Ex.PW-4/A (running into 57 sheets) have
been proved by the official of the City Hospital. The Appellant further
proved the treatment papers from the office of Chief Medical Officer,
Pulwama, Indian Spinal Injuries Centre, Vasant Kunj and the outdoor
treatment received by him in Sir Ganga Ram Hospital. The OPD card
prepared by Govt. Hospital for Bone & Joint Surgery, Srinagar (Ex.PW-
5/7) reveals that the Appellant was suffering from bedsore because of him
being paraplegic. He was referred to the Govt. Reff. Clinic where he
remained as outdoor patient.
13. The Appellant was issued a Disability Certificate Ex.PW-7/A declaring
him 100% permanently disabled in relation to both lower limbs.
14. It is established on record that the Appellant would not be able to carry
out any work at all. The Appellant was in small business who claimed his
income to be `7,000/- per month. The minimum wages of a Matriculate
now are even more than `7,000/- per month. It would be difficult to say
that the Appellant would still carry out his business by engaging full time
person, that perhaps may not be a viable situation for the Appellant.
Moreover, a paraplegic person whose both lower limbs cannot work at
all, can hardly give effective instructions to carry out the business as a
wholesale fruit merchant. Thus, it is established that the Appellant was
totally disabled and he should have been awarded compensation on 100%
loss of earning capacity.
15. Deduction towards personal and living expenses is made only in fatal
accident cases as the deceased would spend some amount on his own
living. No such deduction can be made in injury cases.
16. In Raj Kumar it was laid down that no deduction would be made towards
the personal and living expenses while awarding loss of future earning
capacity in injury cases. Para 27 of the report in Raj Kumar is extracted
hereunder:-
"27. In the case of an injured claimant with a disability, what is
calculated is the future loss of earning of the claimant, payable to
the claimant, (as contrasted from loss of dependency calculated in
a fatal accident, where the dependent family members of the
deceased are the claimants). Therefore, there is no need to deduct
one-third or any other percentage from out of the income, towards
the personal and living expenses."
17. Before the Claims Tribunal, the Appellant claimed his income to be
`7,000/- per month while working as a fruit merchant. His testimony that
he used to bring fruits from Jammu & Kashmir to Delhi was not seriously
challenged in cross-examination. He was simply given a suggestion that
he was not earning `7,000/- per month. The Appellant produced a
Certificate from Tehsildar, Pulwama Ex.PW-5/69 who verified and stated
that the Appellant's income was `7,000/- per month.
18. On the basis of the Appellant's oral testimony coupled with the
certificate, I see no reason to disbelieve that the Appellant was earning
`7,000/- per month.
19. This Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011)
decided on 16.07.2012, referred to the reports of the Supreme Court in
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,
Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, Bijoy Kumar Dugar v.
Bidya Dhar Dutta & Ors, (2006) 3 SCC 242, Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr, (2009) 6 SCC 121 and Santosh Devi
v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and
held that as per Santosh Devi even in the absence of any evidence as to
future prospects an increase of 30% in the income has to be provided
where the victim had fixed income or was a self employed person.
Relevant portion of Santosh Devi is extracted hereunder:
"14.....In our view, it will be naive to say that the wages or total
emoluments/income of a person who is self-employed or who is
employed on a fixed salary without provision for annual increment,
etc., would remain the same throughout his life. The rise in the cost
of living affects everyone across the board. It does not make any
distinction between rich and poor. As a matter of fact, the effect of
rise in prices which directly impacts the cost of living is minimal
on the rich and maximum on those who are self- employed or who
get fixed income/emoluments. They are the worst affected people.
Therefore, they put extra efforts to generate additional income
necessary for sustaining their families. The salaries of those
employed under the Central and State Governments and their
agencies/instrumentalities have been revised from time to time to
provide a cushion against the rising prices and provisions have
been made for providing security to the families of the deceased
employees. The salaries of those employed in private sectors have
also increased manifold. Till about two decades ago, nobody could
have imagined that salary of Class IV employee of the Government
would be in five figures and total emoluments of those in higher
echelons of service will cross the figure of rupees one lac.
Although, the wages/income of those employed in unorganized
sectors has not registered a corresponding increase and has not
kept pace with the increase in the salaries of the Government
employees and those employed in private sectors but it cannot be
denied that there has been incremental enhancement in the income
of those who are self-employed and even those engaged on daily
basis, monthly basis or even seasonal basis. We can take judicial
notice of the fact that with a view to meet the challenges posed by
high cost of living, the persons falling in the latter category
periodically increase the cost of their labour. In this context, it
may be useful to give an example of a tailor who earns his
livelihood by stitching cloths. If the cost of living increases and the
prices of essentials go up, it is but natural for him to increase the
cost of his labour. So will be the cases of ordinary skilled and
unskilled labour, like, barber, blacksmith, cobbler, mason etc.
Therefore, we do not think that while making the observations in
the last three lines of paragraph 24 of Sarla Verma's judgment, the
Court had intended to lay down an absolute rule that there will be
no addition in the income of a person who is self-employed or who
is paid fixed wages. Rather, it would be reasonable to say that a
person who is self-employed or is engaged on fixed wages will also
get 30 per cent increase in his total income over a period of time
and if he / she becomes victim of accident then the same formula
deserves to be applied for calculating the amount of
compensation."
20. Thus, the Appellant would be entitled to an addition of 30% in his income
on account of inflation to compute the loss of future earning capacity.
The loss of future earning capacity would come to `18,56,400/- (7,000/-
+ 30% x 12 x 17).
21. The Appellant examined PW-6 Mustaq Ahmed Meer who deposed that
he was working as an Attendant with the Appellant and was being paid
`3,000/- per month. He deposed that earlier he was earning `2,000/- to
`2,500/- per month from agriculture. In the facts and circumstances, I
would award a compensation towards Attendant charges @ `2,000/- per
month which would come to `4,08,000/-(2000/- x 12 x 17) as against a
sum of `1,50,000/- awarded by the Claims Tribunal.
22. The Appellant is still under treatment as is evident from the OPD card
issued by Govt. Hospital for Bone & Joint Surgery Ex.PW-5/7 and from
Reff. Clinic Ex.PW-5/8. Even if, the treatment and consultation is free,
the Appellant would require some medicines from time to time. The
Claims Tribunal did not make any provision for future medical
attendance. In case of a paraplegic person with 100% disability, I would
award compensation of `50,000/- towards future medical expenses.
23. The compensation of `50,000/- awarded towards pain and suffering is
enhanced to `75,000/-.
24. In Raj Kumar it was laid down that in the event of award of compensation
of 50% or more towards loss of earning capacity, the award of
compensation towards loss of amenities would be duplication and only a
nominal compensation should be awarded under this head. Para 15 of the
report in Raj Kumar is extracted hereunder:-
"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....."
25. In the facts and circumstances, I would award a sum of `25,000/- towards
loss of marriage prospects and loss of amenities in life.
26. The compensation awarded is tabulated hereunder:-
Sl. Compensation under various Awarded by Awarded by
heads the Claims this Court
No. Tribunal
1. Pain and Injury `50,000/- `75,000/-
2. Medical Bills ` 1,05,176/- ` 1,05,176/-
3. Conveyance Charges ` 10,802/- ` 10,802/-
4. Hotel Charges ` 6,000/- ` 6,000/-
5. Loss of Earning Capacity ` 5,67,756/- `18,56,400/-
6. Attendant Charges ` 1,50,000/- `4,08,000/-
7. Future Medical Expenses -- `50,000/-
8. Loss of Marriage Prospects and -- `25,000/-
Loss of Amenities in Life.
Total ` 8,89,734/- ` 25,36,378/-
27. The compensation is enhanced from `8,89,734/- to `25,36,378/- which
shall carry interest @ 7.5% per annum from the date of filing of the
Petition till its payment.
28. The enhanced compensation of `16,46,644/- along with interest shall be
deposited in the name of the Appellant in UCO Bank, Delhi High Court
Branch, New Delhi within six weeks.
29. The compensation awarded by the Claims Tribunal shall be disbursed in
the manner as directed by the Claims Tribunal. The enhanced
compensation of `16,46,644/- along with interest shall be disbursed as
under:-
(i) 10% to be held in fixed deposit for a period of two years.
(ii) 10% to be held in fixed deposit for a period of four years.
(iii) 10% to be held in fixed deposit for a period of six years.
(iv) 10% to be held in fixed deposit for a period of eight years.
(v) 10% to be held in fixed deposit for a period of ten years.
(vi) 10% to be held in fixed deposit for a period of twelve years.
(vii) 10% to be held in fixed deposit for a period of fourteen years.
(viii) 10% to be held in fixed deposit for a period of sixteen years.
(ix) Rest 20% to be released on deposit.
30. The compensation on maturity shall be transferred to his saving account
by UCO Bank, Delhi High Court Branch, New Delhi as the Appellant
may request to the Assistant General Manager of the UCO Bank.
31. The Appeal is allowed in above terms.
32. Pending Applications also stand disposed of.
G.P. MITTAL)
JUDGE
AUGUST 07, 2012
vk
