Delhi High Court
Vidya Dhar Sharma vs Badri Prasad & Ors on 3 December, 2012
Author: G.P. Mittal
$ 9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 3rd December, 2012
+ MAC. APP. 919/2011
VIDYA DHAR SHARMA ..... Appellant
Through: Mr. S.N. Parashar, Advocate.
Versus
BADRI PRASAD & ORS. ..... Respondents
Through: Mr.Anuj Kumar Ranjan, Advocate for the
Respondent No.1 & 2.
Mr. Ram Ashray with Mr. S.L. Gupta,
Advocates for the Respondent No.3
Insurance Co.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `11,99,860/- 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 17.08.2010 resulting in the amputation of his right
hand above elbow. The Appellant suffered 80% permanent disability in
respect of his right upper limb as per the disability certificate Ex.PW 1/2
issued by the Medical Board of Hindu Rao Hospital.
2. In the absence of any Appeal by the driver, owner or the Insurance
Company, the finding on negligence has attained finality.
3. The following contentions are raised on behalf of the Appellant:
(i) The Appellant was a self employed person and used to deal in
supply of yarn. His earning capacity was substantially affected
as was evident from the Income Tax Returns filed for the
Assessment year next to the date of the accident. The Claims
Tribunal erred in granting just 20% loss of earning capacity.
(ii) No compensation was awarded towards purchase of artificial
limb or its maintenance.
4. On the other hand, the learned counsel for the Respondent Insurance
Company urges that the compensation awarded is just and reasonable.
LOSS OF EARNING CAPACITY:
5. 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."
6. In the Claim Petition, it was pleaded that the Appellant was a self-
employed person and was marketing in yarn. The Appellant was an
Income Tax Assessee much before the date of the accident. He proved on
record the Income Tax Returns for the A.Y. 2008-09, 2009-10 and 2010-
11 whereby he returned an income of `1,18,100/-, `1,54,450/- and
`2,51,100/- respectively. The Appellant proved on record the Income
Tax Return for the A.Y. 2011-12 when his income substantially fell to
`1,15,060/- as noticed by the Claims Tribunal.
7. The right hand plays an important role in carrying out the activities
including business. The Appellant, however, did not prove the exact
nature of work performed by him. In Raj Kumar(supra), in the absence
of any specific evidence, the Supreme Court took 45% disability in
respect of left lower limb as 20% loss of future earning capacity. In the
instant case, I would make a guess work and would take loss of future
earning capacity as 40% (50% of 80%). The Appellant would be entitled
to an addition of 30% on account of inflation on the basis of the Supreme
Court report in Santosh Devi v. National Insurance Company Ltd. & Ors.,
2012 (4) SCALE 559. The loss of future earning capacity thus comes to
`19,11,780/- ( `2,51,100/- - 6,000/-(Income Tax) + 30% x 15 x 40%).
8. The Appellant was a self-employed person paying Income Tax. His
grievance is that he has not been awarded any compensation for purchase
of artificial limb. No evidence was produced by him to prove the cost of
artificial limb. In the circumstances, I would award a sum of `50,000/-
towards purchase of artificial limb and a lumpsum compensation of
`25,000/- towards its maintenance during life time.
9. The compensation awarded is recomputed hereunder:
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Medical Expenses `50,000/- `50,000/-
2. Special Diet and ` 9,000/- ` 9,000/-
Conveyance
3. Attendant Charges ` 7,500/- ` 7,500/-
4. Loss of Income ` 1,15,060/- ` 1,15,060/-
5. Loss of Future Income ` 7,53,300/- `19,11,780/-
6. Pain and Suffering, Loss ` 3,00,000/- ` 3,00,000/-
of Amenities of Life/Loss
of Expectation of Life ( `1,00,000/-
and Disfigurement each)
7. Purchase of Artificial - ` 75,000/-
Limb and its Maintenance
( `50,000/- +
`25,000/-)
Total ` 11,99,860/- ` 24,68,340/-
10. The enhanced compensation of `12,68,480/- shall carry interest @ 7.5%
per annum as awarded by the Claims Tribunal. 75% of the enhanced
compensation shall be held in fixed deposit for a period of five years and
ten years in equal proportion, rest of the amount shall be released on
deposit. The Appellant would be entitled to quarterly interest on the
amount deposited.
11. The Respondent No.3 Insurance Company is directed to deposit the
enhanced compensation of `12,68,480/- along with interest with the
Claims Tribunal within six weeks.
12. The Appeal is allowed in above terms.
13. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 03, 2012
pst
