Delhi High Court
Gaurav Barathi @ Nikki vs Shamsher & Ors on 16 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 3rd July, 2012
Pronounced on: 16th August, 2012
+ FAO. 130/1998
GAURAV BARATHI @ NIKKI ..... Appellant
Through: Mr. Navneet Goyal with Ms. Suman N.
Rawat, Advocates
Versus
SHAMSHER & ORS ..... Respondents
Through: Mr. Pankaj Seth, Advocate for the
Respondent Insurance Company.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appeal is for enhancement of compensation of `4,30,000/- awarded
by the Motor Accident Claims Tribunal(the Claims Tribunal) in favour of
the Appellant for having suffered injuries in a motor vehicle accident
which occurred on 12.07.1992.
2. On 12.07.1992, the Appellant along with other family members was on
way back from Vrindavan to his residence at 9, Prithvi Raj Road, New
Delhi. At about 11:00 pm, their maruti van was stationary at a traffic
signal. A truck No. HR-29B-2301 being driven by the First Respondent
in a rash and negligent manner came from behind and hit maruti van
No.DAE-5579. The maruti van was pushed ahead and collided with a
taxi No.DLT-2296 which was coming from the opposite direction and
was taking a right turn.
3. On appreciation of evidence, the Claims Tribunal found that the accident
was caused because of rash and negligent driving of the earlier said truck
and thus made its driver, owner and the insurer liable to pay the
compensation.
4. The compensation awarded is extracted hereunder in a tabulated form:
Sl.No. Compensation under various heads Awarded by
the Claims
Tribunal
1. Expenses at Holy Family Hospital and `2,000/-
Ambulance Charges
2. Expenses at Friends Medical Centre ` 35,000/-
3. Expenses at AIIMS ` 20,055/-
4. Doctors Consultation Fee ` 5,000/-
5. Nurses Charges ` 18,600/-
6. Medicines ` 5,000/-
7. X-ray Charges ` 1,050/-
8. Special Diet ` 7,500/-
9. Expenses on Conveyance for Treatment ` 3,500/-
10. Expenses on Conveyance for Physiotherapy ` 1,400/-
11. Compensation towards Loss of Studies and for ` 14,000/-
Engaging Tutors
Total ` 1,13,105/-
5. In Addition, the Claims Tribunal awarded a compensation of `1,92,000/-
towards loss of earning capacity and `1,25,000/- towards non-pecuniary
damages.
6. The Claims Tribunal discussed in great detail the compensation awarded
towards the expenditure incurred on the treatment and loss of studies.
The Claims Tribunal's reasoning while awarding the compensation is
extracted hereunder:
".......As regards the multiplicand, according to the
petitioner it should be assessed at `4000/-per month to
`5,000/- per month while according to Respondent No.3 it
should be `7500/- p.a. i.e. `625/- p.m. The facts and
circumstances of the case are that the injured was aged 14
and was student of class IXth at the time of accident and
was student of Ist year when he appeared in witness box last
year. Thus, he is student and his studies are continuing
without loss of any academic year. As per his pleadings, his
earnings were on account of interest on deposits which
obviously are not affected by his disability. Thus, there is no
actual loss of earning to the date of trial. However, his
future loss of earning has to be estimated. The petitioner
says that he had become unfit for active services. His father
as PW11 says that Gaurav's earning capacity has been
reduced to less than half for what he would have earned
otherwise and that he (PW11) wanted to educate him upto
the level of Engineer but he cannot become Engineer as he
has become weak in studies. There is no specific material
on record as to what would have been earned if there would
have been no injury and what he will be earning after the
injury, to compute the difference between the two. In any
case, there can be no denial of the fact that disability
suffered by one of his lower limbs will certainly affect his
earning capacity. His father is in business and as per his
own showing his earnings are `8000/- p.m. or so. The
petitioner's earning stage is yet to come. In the
circumstances, estimate of loss of his earning to the extent of
four or five thousand rupees per month on account of
disability to one of his four limbs is apparently on the higher
side. On the other hand, contentions on behalf of Ld.
Counsel for Respondent No.3 that loss should be assessed at
`625/- p.m. appears to be on lower side. Keeping in view
the totality of the circumstances, I think that on average,
future loss to the petitioner on account of disability, should
be assessed at `1000/- per month which will be equivalent to
`12000/- p.a., multiplied by 16, the compensation payable
on this account comes to `1,92,000/-(`12000 x 16).
74. Besides the above mentioned damages, the petitioner
is entitled to non-pecuniary damages. As per ruling of II
1996 ACC 1 DB cited by the Ld. Counsel for the Respondent
No.3, non-pecuniary damages are divided into sub-heads (i)
pain and suffering (ii) loss of amenities of life (iii) loss of
expectation of life (iv) disfigurement and (v) discomfort or
inconvenience. As per 1995 ACJ 366, the non-pecuniary
damages include (i) damages for mental and physical shock,
pain and suffering already suffered or likely to be suffered in
future (ii) damages to compensate for the loss of amenities
of life which may include a variety of matters i.e. on account
of injury the claimant may not be able to walk, run or sit (iii)
damages for loss of expectation of life i.e. on account of
injuries the normal longevity of the person concerned is
shortened; (iv) Inconvenience, hardship, discomfort,
disappointment, frustration and mental stress in life. In that
case, injured aged 52 suffered serious injuries resulting into
100% disability and paraplegia below the waist. He was
granted `1,50,000/- for pain and suffering and `1,50,000/-
in respect of loss of amenities of life. In 1996 ACC 1 DB
injured aged 51 was to retire at the age of 65, remained
hospitalized from 28.3.78 till 10.6.78 and suffered
permanent facial disfigurement by loss of an eye and being
unable to drive car, had to employ a driver. He was
awarded `30000/- towards pain and suffering and another
sum of `30000/- for loss of amenities or happiness. In the
case under consideration, the petitioner remained under
plaster and bed ridden for five months during which period
he was hospitalized for 35 days and underwent operations
but despite all this, has suffered permanent disability to the
extent of 90% of his right lower limb. Medical expert PW7
has testified that his fracture is not likely to unite. The
petitioner as PW13 has testified that he cannot stand for
long time, cannot walk freely and easily, cannot sit on earth
and squate, is unable to play and has difficulty in climbing
stairs. This version has not been specially assailed in cross-
examination. Merely because he goes to college in U-
special bus or sometime by auto does not negative disability
stated by him. Inabilities stated by him are apparently result
of permanent disability suffered by one of his lower limbs.
His father has testified that marriage prospects of the
petitioner have been adversely affected. This has also gone
unassailed in cross-examination. In this circumstances,
keeping in view the fact that the petitioner has to remain
with his disability suffered in early teens for rest of his life, I
think that a sum of Rs.50000/- for pain and suffering and
`75000/- for loss of enjoyment of amenities of life,
inconveniences, hardship, discomfort, disappointment,
frustration and mental stress in life will be just and proper.
(it may be mentioned that in case it is taken that this loss of
amenities of life, discomfort etc. was for 50 years from the
date of accident, the amount of `75000/- would compensate
him on this count @ `125/- per month). Therefore, I allow
sum of `1,25,000/- as non-pecuniary damages to the
petitioner. Hon'ble High Court in II 1996 AC 1 has ruled
that non-pecuniary damages cannot be kept low because
pecuniary damages are high."
7. At the time of hearing, the following contentions are raised on behalf of
the Appellant:
(i) The Appellant belonged to a rich family and was residing in
Lutyens Delhi. The Claims Tribunal erred in awarding the
compensation on the loss of earning capacity at `1,000/- per
month.
(ii) The compensation awarded towards pain and suffering and loss of
amenities in life is on the lower side.
8. On the other hand, it is urged by the learned counsel for the Respondent
Insurance Company that the compensation awarded is just and
reasonable.
9. It is proved on record that immediately after the accident, the Appellant
was admitted in Holy Family Hospital. Apart from other injuries, he
suffered fractures neck femur (R) and in right pubic bone. The
Appellant's father and his other family members were not satisfied with
the treatment being given to him in Holy Family Hospital. The Appellant
was, therefore, shifted to Friend's Medical Centre. He was operated upon
by Dr. M.G. Abbott, Dr. R.S.Vashist and other Doctors. He was
subsequently admitted to All India Institute of Medical Sciences(AIIMS)
on 29.08.1992 where some surgical procedure was performed under the
supervision of Dr. P.K. Dave, Head of Department of Orthopaedics. It
was proved on record that on account of non-union of the femur bone,
there was shortening of leg by 5 cm. He was issued a disability
certificate whereby he was declared to have suffered 45% disability with
regard to his right lower limb. The disability was later on revised to 90%
by a subsequently issued disability certificate Ex.PW14/5. The
certificates Exs. PW14/3 dated 14.09.1994 and PW14/5 dated 31.08.1996
are extracted hereunder:
"TO WHOM IT MAY CONCERN
This is to certify that Mr. Gaurav Barathi, S/o Mr. Prakash
Chand, 14 years male, OPD No.FA/663/92 is a case of fracture
non union (right) neck femur.
He is physically handicapped and has 45% (forty five) per cent
permanent impairment in relation to his right lower limb.
Sd/-
(P.K. DAVE)
PROF. & HEAD
DEPTT. OF ORTHOPAEDICS
Sd/- Sd/-
SIGNATURE OF PATIENT COUNTERSIGNATURE
M.S."
"TO WHOM IT MAY CONCERN
This is to certify that Mr. Gaurav Barathi, S/o Mr. Prakash
Chand Barathi, 18 years male, OPD No.FA/663/96 is a case of
fracture non union (right) neck.
He is physically handicapped and has 90% (Ninety per cent)
permanent impairment in relation to his right lower limb.
Sd/-
(P.K. DAVE)
PROF. & HEAD
DEPTT. OF ORTHOPAEDICS
Sd/- Sd/-
SIGNATURE OF PATIENT COUNTERSIGNATURE
M.S."
10. At the time of the accident, the Appellant was a student of 9 th Standard.
On account of the accident, he could not attend school for almost a year.
It was proved on record that he appeared along with compartmental
students (students who fail in some subjects) and was able to save his
year. In spite of this, the Appellant cleared his 12th Standard Examination
through CBSE with 66% marks. At the time of the recording his
statement, he was doing graduation.
11. As I have stated earlier, the Appellant was a student of only 9th Standard
at the time of the accident and despite of his handicaps and long period of
hospitalization and confinement to bed on account of the injuries, he
completed his 12th Standard Examination and took admission in B.A. It
is well-settled that potential income of a student has to be taken into
consideration to award him compensation towards loss of earning
capacity. (Haji Zainullah Khan (Dead) by Lrs. v. Nagar Mahapalika,
Allahabad, 1994 (5) SCC 667 and Ganga Devi & Ors. v. New India
Assurance Co. Ltd. & Ors., MAC APP. 359/2008, decided by this Court
on 23.11.2009). As the Appellant would have joined some service or
would have joined his father in his business, on making a conservative
estimate, his potential income should have been taken at least `6,000/-
per month.
12. 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."
13. 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."
14. 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."
15. The vital question for consideration is as to what is the loss of earning
capacity.
16. 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."
17. No expert evidence has been produced as to what is the exact loss of
earning capacity. At the same time, it has come on record that the
Appellant would have difficulty in walking, running, sitting, squatting,
travelling and even in driving his own vehicle. The reasons for
increasing the permanent disability from 45% to 90% have not been
given by examining any doctor. It was proved that there was shortening
of right leg by 5 cm. In the circumstances, I would guess loss of earning
capacity to be 30% as against 45% in respect of right lower limb in his
disability certificate Ex.PW14/3 and 90% in respect of right lower limb as
per his disability certificate Ex.PW14/5. Since the Appellant was a
student of 9th Standard and was to earn only after completion of his
studies, the appropriate multiplier in case of a young person below 25
years would be 18 as against 16 adopted by the Claims Tribunal.
18. In Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4)
SCALE 559, the Supreme Court laid down that in case of self-employed
and persons having fixed income, an increase to the extent of 30% could
be given towards inflation. Para 14 of the report 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."
19. The loss of earning capacity thus comes to `5,05,440/- (`6000/- + 30% x
12 x 18 x 30% ) as against `1,92,000/- awarded by the Claims Tribunal.
20. Coming to the compensation awarded towards non-pecuniary heads, it
may be noted that this accident occurred in the year 1992. In Govind
Yadav v. New India Insurance Co. Ltd. (2011) 10 SCC 683, in case of
amputation of above knee of a victim aged 24 years in an accident which
took place in the year 2004, the Supreme Court granted a compensation
of `1,50,000/- towards pain and suffering and `1,50,000/- towards
amenities in life and loss of marriage prospects. Considering that this
accident occurred in the year 1992, the compensation of `50,000/-
towards pain and suffering and `75,000/- towards loss of amenities in life
and loss of marriage prospects appears to be just and reasonable.
21. In view of the discussion above, the compensation is enhanced by
`3,13,440/- which shall carry interest @ 12% per annum from the date of
the filing of Petition till the date of the award and @ 7.5% per annum
from the date of the award till its payment.
22. The accident took place almost 20 years back. The enhanced
compensation of `3,13,440/- along with interest shall be deposited by the
Respondent Insurance Company in the name of the Appellant with the
UCO Bank, Delhi High Court Branch within six weeks and shall be
released in favour of the Appellant on deposit.
23. The Appeal is allowed in above terms.
24. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 16, 2012
pst
