Delhi High Court
Raj Kumar vs Naresh Kumar & Ors. on 30 August, 2012
Author: G.P. Mittal
$~R-40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th August, 2012
+ MAC. APP. No.508/2004
RAJ KUMAR ..... Appellant
Through: Mr. Sanjeev Mehta, Advocate.
Versus
NARESH KUMAR & ORS. ..... Respondents
Through: Mr. A.K. Soni, 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 `2,45,930/- awarded
by the Motor Accident Claims Tribunal(the Claims Tribunal) in favour of
the Appellant for having suffered injuries resulting into the amputation of
his right forearm(below elbow) in a motor vehicle accident which
occurred on 18.09.1996.
2. According to the Appellant, on 18.09.1996 at about 3:30 pm the
Appellant was carrying his fruits in a tempo No.DL-1LB-5252. The
tempo was being driven by the First Respondent at high speed and in a
rash and negligent manner. When the tempo reached near Britannia
Chowk, the First Respondent lost control over the vehicle which climbed
on the pavement and overturned. The Appellant was removed to Hindu
Rao Hospital where he remained admitted from 18.09.1996 to
05.10.1996. Amputation of the right hand (below elbow) was carried out.
He was discharged on 05.10.1996 with an advice to attend the OPD after
seven days. The Appellant remained admitted in Bhagat Hospital from
06.10.1996 to 26.10.1996. He was issued a disability certificate Ex.P-5
whereby he was declared to have suffered permanent disability above
50% because of amputation of his right hand.
3. On appreciation of evidence, the Claims Tribunal found that the accident
was caused on account of rash and negligent driving of the offending
tempo by the First Respondent. The Second Respondent who was owner
of the offending tempo raised a plea before the Claims Tribunal that he
had already sold the tempo to the First Respondent. Respondent No.3
Insurance Company took up the plea that the First Respondent(the driver
of the offending vehicle) did not possess a valid driving licence to drive
the offending vehicle. It was proved that the driving licence held by the
First Respondent was fake. The Claims Tribunal held that the
Respondent No.3 Insurance Company failed to prove that there was a
conscious and willful breach of the terms of the policy. Thus, relying on
Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21, Skandia Insurance
Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654, New
India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342 and
United India Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC
338, it made the Respondent No.3 Insurance Company liable to pay the
compensation and denied the recovery rights to it.
4. In the absence of any Appeal by the driver, owner and the insurer, the
finding on negligence has attained finality. The Respondent No.3
Insurance Company does not dispute the finding on liability as it has not
filed any Appeal against the impugned judgment.
5. The following contentions are raised on behalf of the Appellant:
(i) The Appellant was a fruit vendor. He was earning `4,000/-
per month. The Claims Tribunal erred in awarding loss of
earning capacity on minimum wages of an unskilled worker.
(ii) The Appellant's age at the time of the accident was about 22
years. The Claims Tribunal erred in taking his age as 35
years. The appropriate multiplier towards loss of future
earning capacity should have been taken as '18' instead of
'15'.
(iii) Since the Appellant was a self employed person carrying
manual work, he was rendered jobless on account of
amputation of his right arm. Loss of earning capacity in his
case should have been taken as 100% instead of 50% taken
by the Claims Tribunal.
(iv) No compensation was awarded towards loss of income for
the period of confinement.
(v) Considering the nature of injuries, the Appellant needed help
of an attendant to carry out his day to day work. No
compensation was awarded towards attendant charges.
(vi) The compensation awarded towards non-pecuniary heads is
on the lower side.
6. On the other hand, the learned counsel for the Respondent Insurance
Company supports the judgment and states that the compensation
awarded is just and reasonable.
7. Section 166 of the Motor Vehicles Act, 1988(the Act) enjoins payment of
just compensation. Undisputedly, grant of compensation involving an
accident is within the realm of Law of Torts. It is based on the principle
of restitution in integrum. The said principle provides that a person
entitled to damages should, as nearly as possible, get that sum of money
which would put him in the same position as he would have been if he
had not sustained the wrong. (Livingstone v. Rawyards Coal Co.(1880) 5
AC 25).
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 laid down that the compensation should, to the extent possible,
fully and adequately restore the Claimant to the position prior to the
accident. It was stated that at the same time the Court and the Tribunal
must exclude from consideration any speculation or fancy though some
conjecture with reference to the nature of disability and its consequences
is inevitable. Paras 5 and 6 of the Report are extracted hereunder:
"5. The provision of the Motor Vehicles Act, 1988 ('the Act'
for short) makes it clear that the award must be just, which
means that compensation should, to the extent possible, fully
and adequately restore the claimant to the position prior to
the accident. The object of awarding damages is to make
good the loss suffered as a result of wrong done as far as
money can do so, in a fair, reasonable and equitable
manner. The court or tribunal shall have to assess the
damages objectively and exclude from consideration any
speculation or fancy, though some conjecture with reference
to the nature of disability and its consequences, is inevitable.
A person is not only to be compensated for the physical
injury, but also for the loss which he suffered as a result of
such injury. This means that he is to be compensated for his
inability to lead a full life, his inability to enjoy those normal
amenities which he would have enjoyed but for the injuries,
and his inability to earn as much as he used to earn or could
have earned. [See C.K. Subramonia Iyer v. T. Kunhikuttan
Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control
(India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby,
1970 AC 467.
6. The heads under which compensation is awarded in
personal injury cases are the following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured
would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent
disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be
awarded only under heads (i), (ii)(a) and (iv). It is only in
serious cases of injury, where there is specific medical
evidence corroborating the evidence of the claimant, that
compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on
account of permanent disability, future medical expenses,
loss of amenities (and/or loss of prospects of marriage) and
loss of expectation of life."
11. In Raj Kumar, the Supreme Court further 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."
LOSS OF EARNING CAPACITY:
12. It is urged by the learned counsel for the Appellant that the Appellant
established his income as `4,000/- per month and thus he should have
been awarded compensation towards loss of earning capacity on an
income of `4,000/- per month and on making addition towards inflation.
It is stated that since the Appellant was a manual worker, loss of his
earning capacity should have been taken as 100%. Reliance is placed on
Mohan Soni v. Ram Avtar Tomar & Ors., (2012) 2SCC 267 where in case
of amputation of one leg, loss of earning capacity was taken 90% as
against permanent disability to the extent of 60%.
13. In the instant case, the Appellant's version that he was working as a fruit
vender was not seriously challenged. In the Claim Petition, the Appellant
claimed his income to be `4000/- per month. In his affidavit Ex.P-4 (by
way of examination-in-chief), the Appellant, however, did not give his
income. A co-fruit vendor Ram Kumar filed his affidavit Ex.P-1 by way
of his evidence and testified that the Appellant was earning `4,000/- per
month. Any income beyond `35,000/- per annum in the relevant year
was subject to payment of Income Tax. Admittedly, no Income Tax
Return was filed by the Appellant. The Appellant did not furnish any
cogent evidence with regard to his income. The Claims Tribunal was,
therefore, justified in awarding loss of future earning capacity taking
minimum wages of an unskilled worker as `1677/- per month.
14. There was no evidence with regard to the Appellant's future prospects.
In view of the Supreme Court judgment in Santosh Devi v. National
Insurance Company Ltd. & Ors., 2012 (4) SCALE 559, relied on and
discussed by this Court in Rakhi v. Satish Kumar & Ors. (MAC. APP.
390/2011) decided on 16.07.2012, the Appellant would be entitled to an
addition of 30% in his income on account of inflation to compute the loss
of earning capacity.
15. In Mohan Soni relied upon by the learned counsel for the Appellant, the
Claimant was found to have suffered 60% permanent disability on
account of amputation of left leg. The Claimant was a cart puller. The
Supreme Court took the loss of future earning capacity as 90% assuming
that the Appellant would not be able to pull a cart or a cycle rickshaw on
account of amputation of his left leg. In the instant case, the Appellant
can still sell fruit on a rehri. He may have some difficulty in pulling the
rehri upto the place of a hawking site. In the circumstances, the loss of
earning capacity should be taken as only 50%.
16. Coming to the selection of multiplier, the Appellant's age in the MLC
was mentioned as 35 years. It is urged by the learned counsel for the
Appellant that the age in the MLC might have been mentioned by some
person accompanying him or might have been taken by the Doctor on
some assumption. In the Claim Petition, the Appellant's age has been
mentioned as 21 years. As per the ration card, which was prepared in the
year 1996 itself, his age is mentioned as 12 years. The disability
certificate (Ex.P-5) is a more authentic document which mentions his age
as 23 years in the year 1997. At the most, there could have been variation
of one or two years in the age as mentioned in the disability certificate.
Thus, I would accept the Appellant's age to be definitely under 25 years
on the date of the accident. The loss of earning capacity thus comes to
`2,35,450/-(`1677/- + 30% x 12 x 18) as against a compensation of
`1,50,930/- awarded by the Claims Tribunal.
LOSS OF INCOME:
17. The Appellant remained admitted in Hindu Rao Hospital for 18 days and
in Bhagat Hospital for 20 days. On account of amputation of his right
hand, he must have taken 4-6 months to fully recover from the injury. He
is, therefore, entitled to the loss of income for a period of six months
which comes to `10062/- (`1677/- x 6). I award this sum towards loss of
income.
ATTENDENT CHARGES:
18. No evidence was produced by the Appellant that he employed any
attendant to look after him. Considering that there was amputation of his
right arm and the Appellant remained admitted for about 38 days, the
Appellant might have engaged some attendant or some family member
must have looked after him for a period of at least three months. (Delhi
Transport Corporation and Anr. v. Kumari Lalita 22 (1982) DLT 170
(DB)).
19. I accordingly, award a sum of `5,000/- (`1677/- x 3) towards gratuitous
services rendered by family members.
LOSS OF AMENITIES AND PAIN AND SUFFERING:
20. The Appellant was a young boy aged 21-22 years. In Govind Yadav v.
New India Insurance Co. Ltd. (2011) 10 SCC 683, a compensation of
`1,50,000/- each was awarded in case of amputation of one lower limb in
an accident which occurred in the year 2004 towards pain and suffering
and loss of amenities and loss of marriage prospects. Considering that in
this case, the accident took place in the year 1996, I would make a
provision of `75,000/- each under both the heads.
21. No other contention has been raised.
22. The compensation is thus recomputed as under:
Sl. Compensation under various Awarded by Awarded
heads the Claims by this
No. Tribunal Court
1. Pain and Suffering `50,000/- `75,000/-
2. Loss of Amenities ` 25,000/- `75,000/-
3. Expenses on Medicines, Medical ` 20,000/- ` 20,000/-
Treatment, Special Diet and
Conveyance
4. Compensation on account of ` 1,50,930/- ` 2,35,450/-
Permanent Disability/Loss of
Earning Capacity
5. Loss of Income(for six months) - ` 10,062/-
6. Attendant Charges - ` 5,000/-
Total ` 2,45,930/- ` 4,20,512/-
23. The enhanced compensation of `1,74,582/- shall carry interest @ 7.5%
per annum from the date of the filing of the petition till its payment. 80%
of the enhanced compensation shall be held in fixed deposit for a period
of two years, four years, six years, eight years and ten years. Rest 20%
along with proportionate interest shall be released on deposit.
24. The Respondent No.3 Insurance Company is directed to deposit the
enhanced amount of `1,74,582/- along with interest in the name of the
Appellant in the UCO Bank, Delhi High Court Branch within six weeks.
25. The Appeal is allowed in above terms.
26. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 30, 2012
pst
