Delhi High Court
Ravinder Kumar vs Pradeep Kumar & Ors. on 7 August, 2012
Author: G.P. Mittal
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th August, 2012
+ MAC. APP. No.564/2009
RAVINDER KUMAR ..... Appellant
Through: Mr. Ashok Popli, Advocate
Versus
PRADEEP KUMAR & ORS. ..... Respondents
Through: Mr. Amit Gaur, Advocate for the
Respondent No.3 Insurance Company.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of Rs.1,49,105/-
awarded in favour of the Appellant by the Motor Accident Claims
Tribunal(the Claims Tribunal) for having suffered injuries in a motor
vehicle accident which occurred on 20.07.2006. The Appellant suffered
permanent disability to the extent of 40% in respect of his right upper
limb on account of amputation of right thumb.
2. In the absence of any Appeal by the driver, owner and the Insurance
Company, the finding on negligence has attained finality.
3. During inquiry before the Claims Tribunal, it was claimed that the
Appellant was working as a Supervisor with a building contractor and
was earning Rs.9,000/- per month. In the absence of proof of income, the
Claims Tribunal took minimum wages of an unskilled worker, took the
loss of earning capacity to be 15% as against disability of 40% with
regard to the right upper limb and granted a compensation of Rs.94,205/-.
The Claims Tribunal further added Rs.30,000/- towards pain and
suffering, Rs.7,000/- each towards conveyance and special diet in
addition to Rs.10,900/- towards purchase of medicines and medical
treatment.
4. A perusal of admission and discharge record of the Hospital Ex.PW1/A
prepared in Lok Nayak Hospital shows that the Appellant was admitted to
the Hospital on 21.07.2006 with crush injury on his right hand, abrasion
on left hand and abrasion on left knee. K-Wire Fixation was done after
the admission and the Appellant was referred to Plastic Surgery
Department. He was admitted to the ward of Dr. A. Goel where
exploration of wound (Rt) hand, repair of all cut thenar muscles(badly
avulsed) and repair of cut FPL Tendons and suturing of the avulsed skin
flap (based medially) was done under local anesthesia by Dr. Arun Goel
and Dr. Sudhir Mehta. The Appellant was discharged from the Hospital
on 24.07.2006. The Appellant's left thumb could not be saved and
amputation was gradually carried on between 17.08.2006 to 30.12.2006.
The Appellant remained admitted under Dr. Indwar Upadhyay for five
days vide document Ex.PW2/38.
5. It is urged by the learned counsel for the Appellant that the Appellant was
aged 40 years. Although there was no evidence with regard to
Appellant's income, yet it was proved that he was working as a
Supervisor with a building contractor. Loss of his earning capacity
should have been awarded at least on the wages of a skilled worker and
loss of earning capacity should have been taken as 40%. It is urged that
no compensation was awarded towards loss of amenities in life. The
compensation awarded towards pain and suffering is on the lower side.
6. The Appeal must succeed on all the grounds.
7. Section 166 of the Act enjoins a just compensation to a victim of a motor
accident. 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. It was not challenged in Appellant's cross-examination that he was
working as a Supervisor with a building contractor. Thus, in the absence
of any cogent evidence with regard to his salary, his income should have
been taken as that of a skilled worker. Right thumb plays an important
role in holding any article and writing. Yet considering that the
Appellant was working as a Supervisor and was not expected to do much
writing work as also in the absence of any expert evidence, the Claims
Tribunal was justified in taking the loss of earning capacity to be 15%.
The Appellant was entitled to an increase of 30% towards inflation on the
basis of Santosh Devi v. National Insurance Company Ltd. & Ors., 2012
(4) SCALE 559. The loss of future income, therefore, comes to
Rs.1,38,340/- (Rs.3695+30% x 12 x 16 x15%) as against Rs.94,205/-
awarded by the Claims Tribunal.
9. The Appellant received prolonged treatment in Government Hospital and
in a private Hospital in Moradabad. The compensation towards pain and
suffering was on the lower side. The same is enhanced from Rs.30,000/-
to Rs.40,000/-.
10. The compensation of Rs.7,000/- each towards conveyance and special
diet in addition to Rs.10,900/- towards purchase of medicines and
medical treatment is maintained.
11. The Appellant was not awarded any compensation towards loss of
amenities and disfigurement. The Appellant would always face difficulty
in his day to day activities because of loss of right thumb. I would make
an award of Rs.40,000/- towards loss of amenities in life.
12. Thus, there is an enhancement of Rs.94,135/- in the compensation
awarded which shall carry interest @ 7.5% per annum. 50% of the
compensation shall be held in Fixed Deposit for a period of two years.
Rest shall be released on deposit.
13. The enhanced compensation of Rs.94,135/- along with interest shall be
deposited by the Respondent No.3 National Insurance Co. Ltd. with the
Claims Tribunal within six weeks.
14. The Appeal is allowed in above terms.
15. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 07, 2012
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