Delhi High Court
New India Assurance Co. Ltd. vs Kiran @ Mini & Ors. on 6 December, 2012
Author: G.P. Mittal
$ 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 6th December, 2012
+ MAC. APP. 498/2012
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
KIRAN @ MINI & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Advocate for the
Respondents(Claimants)
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Co. Ltd. seeks reduction of
Compensation of `12,11,168/- awarded by the Motor Accident Claims
Tribunal(the Claims Tribunal) in favour of the First Respondent, a child
aged three years at the time of the accident and now aged about 10 years
who suffered amputation of both of her legs above knee in a motor
vehicle accident which occurred on 07.04.2006.
2. The finding on negligence is not challenged by the Appellant Insurance
Company; thus the same has attained finality.
3. The First Respondent suffered crush injury on both of her legs in the
accident. Immediately after the accident, she was removed to M.B.
Hospital, Pooth Kalan, Delhi. Since the First Respondent's condition was
precarious, she was shifted to Safdarjung Hospital on the same day where
amputation of both the legs was carried out.
4. The Claims Tribunal awarded a compensation of `12,11,168/-, which is
tabulated hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Pain & Suffering `1,00,000/-
2. Loss of Amenities of Life ` 1,00,000/-
and Loss of Expectation
of Life
3. Damages for Amputation ` 1,00,000/-
of both her feet
4. Loss of Marriage ` 1,00,000/-
Prospects
5. Loss of Earning Capacity ` 5,61,168/-
6. Medical Expenses, ` 50,000/-
Special Diet and
Conveyance
7. Compensation for ` 2,00,000/-
Implantation/Fixation of
Artificial Limb
Total ` 12,11,168/-
5. The following contentions are raised on behalf of the Appellant:
(i) The First Respondent was a child of three years at the time of
the accident and was a school going children at the age of 10
years at the time of the impugned judgment. The Claims
Tribunal ought to have awarded the compensation on account
of loss of future earning capacity on the notional income of the
First Respondent instead of awarding the same on the basis of
the minimum wages of an unskilled worker.
(ii) The First Respondent suffered 100% disability in relation to her
both lower limbs. The Claims Tribunal erred in awarding
compensation of 75% loss of earning capacity which is not in
consonance with the judgment in Raj Kumar v. Ajay Kumar &
Anr., 2011 (1) SCC 343. The functional disability should have
been reduced to 50%.
6. I am not convinced with either of the contentions raised. The First
Respondent was aged only three years at the time of the accident and is
now aged about 10 years. It is true that the permanent disability in
respect of any limb or more than one limb may not have the same impact
on the earning capacity. However, in the instant case the First
Respondent as stated was aged only three years and she lost both of her
lower limbs above knee. There was permanent physical impairment in
relation to her both lower limbs to the extent of 100%. It is difficult to
make assessment of loss of earning capacity in case of a small child of
three years. The child is to grow, receive education and then to find an
employment. In the instant case, the First Respondent loss her both limbs
when she had not even started going to the school. Thus, the Claims
Tribunal rightly made an assessment that there would be loss of earning
capacity to the extent of 75%.
7. Coming to the award of loss of earning capacity. Admittedly, the First
Respondent did not have any income at the time of the accident. It is not
a case of death of a small child where there are much uncertainties as to
what the child would have done in his life. In the instant case, the small
child has to survive throughout her life even if life expectancy decreases
on account of injuries suffered. Thus, the compensation was rightly
awarded on the basis of minimum wages of an unskilled worker. In
Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4)
SCALE 559, it was laid down that even in the absence of any evidence
with regard to the future prospects, an addition of 30% should be made
towards inflation. Thus, the loss of earning capacity comes to
`7,29,518/- (`3,464/- x 12 + 30% x 18 x 75%) instead of `5,61,168/-
awarded by the Claims Tribunal.
8. Consequently, the First Respondent is entitled to a compensation of
`13,79,518/- instead of `12,11,168/-.
9. In the case of Oriental Insurance Company Limited v. Mamta Rani &
Ors., MAC APP.629/2010, decided on 06.09.2012 this Court noticed the
Supreme Court judgments in Nagappa v. Gurudayal Singh, (2003) 2 SCC
274; Ibrahim v. Raju, AIR 2012 SC 534; New India Assurance Co. Ltd. v.
Gopali & Ors., Civil Appeal No.5179 of 2012 decided on 05.07.2012 and
a judgment of the learned Single Judge of this Court in National
Insurance Co. Ltd. v. Komal & Ors., MANU/DE/2870/2012, and held that
the Court can increase the compensation without filing any Cross Appeal
or Cross Objections.
10. Thus, in the absence of any Appeal or Cross-Objections, the
compensation is enhanced by `1,68,350/- which shall carry interest @
7.5% per annum from the date of filing of the Petition till its payment.
11. The enhanced compensation shall be held in fixed deposit in a
nationalized bank for a twelve years. The First Respondent shall be
entitled to quarterly interest on the amount of compensation held in fixed
deposit. The First Respondent would be entitled to premature release of
the amount if the same is needed for higher education or for her marriage
to the satisfaction of the Claims Tribunal.
12. The Appellant New India Assurance Company Ltd. is directed to deposit
the enhanced amount of `1,68,350/- along with interest with the Claims
Tribunal within six weeks.
13. The Appeal is disposed of in above terms.
14. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company.
15. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 06, 2012
pst
