Delhi High Court
Manjeet Singh vs Kailash Kumar & Ors. on 6 December, 2012
Author: G.P. Mittal
$~ R-98
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 6th December, 2012
+ MAC. APP. 659/2005
MANJEET SINGH ..... Appellant
Through: Mr. Piyush Sharma, Advocate.
Versus
KAILASH KUMAR & ORS. ..... Respondents
Through: Mr. A.K. Soni, Advocate 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 `3,87,776/- 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 21.08.1997.
2. In the absence of any Appeal by the driver; the owner or the Insurance
Company; the finding on negligence has attained finality.
3. In the instant case, the Appellant suffered fracture of his right arm, right
leg and head injuries. On account of the head injuries, the Appellant
suffered mild mental retardation. He was declared to have suffered 40%
permanent disability by the Medical Board of Safdarjung Hospital vide
disability certificate Ex. PW-3/1.
4. The Claims Tribunal awarded a compensation of ` 3,87,776/- which is
tabulated hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Medical Bills ` 3,440/-
2. Conveyance ` 10,000/-
3. Special Diet ` 10,000/-
4. Loss of Earning ` 66,000/-
5. Loss of Future Earning ` 2,13,336/-
6. Pain & Suffering ` 50,000/-
7. Future Treatment ` 25,000/-
8. Attendant Expenses ` 10,000/-
Total = ` 3,87,776/-
5. The following contentions are raised on behalf of the Appellant:
(i) The Appellant suffered mild mental retardation. He is unable to
carry out any work. He should have been awarded
compensation on 100% loss of earning capacity; the Claims
Tribunal erred in awarding loss of earning capacity on the basis
of the Minimum Wages of an un-skilled worker. Since the
Appellant was a student of 11th standard, he should have been
awarded the compensation at least on the basis of Minimum
Wages of a Matriculate.
(ii) Compensation of ` 10,000/- towards attendant charges was on
the lower side.
(iii) No compensation was awarded towards loss of amenities in
life.
6. On the other hand, learned counsel for Respondent No.3 Insurance
Company urges that the compensation awarded is just and reasonable and
does not call for any enhancement.
LOSS OF FUTURE EARNING CAPACITY
7. I have before me the Trial Court record. Immediately after the accident,
the Appellant was removed to the Safdarjung Hospital. PW-1 Dr. Karam
Chand, Senior Neuro Surgeon, Safdarjung Hospital, was one of the
doctors who immediately attended to him. He testified that the Appellant
was admitted to the Hospital in unconscious state since the time of injury.
The patient was moving his body in the state of unconsciousness. He
testified that his (the Appellant) CT Scan revealed extradural haematoma
in his left frontal region. He (PW-1) testified that the patient was restless
and pulled out his urinary catheter. Because of this problem, a catheter
had to be inserted in the lower part of the abdomen by surgical procedure.
He stated that the patient (the Appellant) remained under treatment with
him till 08.12.1998. Thus, as per PW-1, the Appellant was an indoor
patient for a period of 16 days and was an outdoor patient for about one
year and four months.
8. PW-9 Dr.Ranjan Kumar Wadhwa is one of the doctors who constituted
the Medical Board to assess the Appellant's disability. He testified that
the Appellant was found to be having post head injuries mild mental
retardation and the disability was found to be permanent and assessed to
be 40%. He proved the disability certificate Ex. PW-9/1.
9. It is urged by the learned counsel for the Appellant that on account of the
mild mental retardation, the Appellant is unable to carry out any work
and thus, his disability should be taken as 100%.
10. I would not agree with the learned counsel for the Appellant.
11. PW-9 Dr.Ranjan Kumar Wadhwa was categorical that it was a case of
mild mental retardation resulting in 40% permanent disability. Thus, the
Claims Tribunal rightly took the loss of earning capacity as 40% only. It,
however, erred in awarding the loss of future earning capacity on the
basis of Minimum Wages of an un-skilled worker whereas it was
established that the Appellant was a student of 11 th standard at the time of
the accident. The Claims Tribunal made an addition of 50% towards
inflation, it would be only 30% on the basis of the report of the Supreme
Court in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012
(4) SCALE 559.
12. Thus, the loss of future earning capacity comes to ` 2,50,698/- (` 2232/-
+ 30% x 12 x 18 x 40%) as against ` 2,13,336/-.
ATTENDANT CHARGES
13. I have already observed above that the Appellant was admitted in the
Hospital in a very precarious condition. His condition was such that he
even pulled out the urinary catheter because of the restlessness. The
Appellant remained under treatment of Senior Neuro Surgeon in
Safdarjung Hospital till 08.12.1998. Because of the head injuries and
initial phase of unconsciousness, the Appellant could not be left
unattended. The award of lump sum ` 10,000/- towards attendant charges
was on the lower side.
14. Jai Singh (PW-3) the Appellant's father deposed that he used to be on
night duty and therefore, one Sushil Kumar was employed as an attendant
on a monthly salary of ` 3,000/-. Sushil Kumar was not produced. The
salary paid to attendant seems to be higher in any case even if gratuitous
services are rendered by one or the other family member, the Appellant
cannot be denied compensation for the benefit of the tortfeasor.
15. I am supported in this view by a judgment in Delhi Transport
Corporation and Anr. v. Kumari Lalita 22 (1982) DLT 170 (DB), where it
was held as under:
"(33) Counsel for the Corporation argued that since Lalita is
being looked after by her mother compensation ought to be
reduced. We do not agree. In the case of Lalita the main question
is of future care. Today she is being helped by her mother. But that
does not mean that she is not to be compensated for services
rendered to her. A legal agreement between mother and daughter
is not necessary to claim compensation. We cannot deduct what is
described as the 'domestic element' from the cost of care. A wrong
doer cannot take advantage of this 'domestic element.' If the
mother renders service to her, instead of a nurse, it is right and
just that she should recover compensation for the value of the
services that the mother has rendered to her. Mother's services
were necessitated by the wrong doing and the injured should be
compensated for it. (Cunnigham v. Harrison (1973) 3 All E.R.
463). The services of a wife and mother are worth more than those
of a house-keeper because she is in constant attendance and does
many more things than a house-keeper. (Regan v.
Williamson (1976) 2 All E. R. 241)".
16. The Minimum Wages of an un-skilled worker at the time of the accident
were ` 1,784/-. I would award a compensation of ` 28,544/- (`1,784/- x
16) towards attendant charges as against a lump sum compensation of `
10,000/- awarded by the Claims Tribunal.
LOSS OF AMENITIES IN LIFE
17. The Appellant has suffered permanent mild mental retardation. He had
not been awarded any compensation towards loss of amenities in life.
Because of the mild mental retardation, the Appellant would be
prohibited from riding a bicycle or a two-wheeler. He would not be
permitted to swim. He would have some difficulty in day to day working.
The Claims Tribunal ought to have awarded some compensation towards
loss of amenities in life. In the facts and circumstances of the case, I
would make a provision of ` 25,000/- under this head.
LOSS OF INCOME
18. The Claims Tribunal awarded a compensation to the extent of 40% loss
of earning capacity and also loss of earning for a period of seven years.
The Appellant remained under treatment only for 16 months. No expert
opinion was led that after 16 months he could not carry out any work at
all. In the circumstances, the loss of income could have been awarded
only for a period of 16 months. The compensation towards loss of income
is thus reduced from ` 66,000/- to ` 35,808/- (2238 x 16)
19. No other contention has been raised on behalf of the Appellant.
20. The compensation is recomputed as under:-
Sl. Compensation under Awarded by Awarded
various heads the Claims by this
No. Tribunal Court
1. Medical Bills ` 3,440/- ` 3,440/-
2. Conveyance ` 10,000/- ` 10,000/-
3. Special Diet ` 10,000/- ` 10,000/-
4. Loss of Earning ` 66,000/- ` 35,808/-
5. Loss of Future Earning ` 2,13,336/- ` 2,50,698/-
6. Pain & Suffering ` 50,000/- ` 50,000/-
7. Future Treatment ` 25,000/- ` 25,000/-
8. Attendant Expenses/Charges ` 10,000/- ` 28,544/-
9. Loss of Amenities in Life NNil ` 25,000/-
Total = ` 3,87,776/- ` 4,38,490/-
21. The overall compensation is thus enhanced from ` 3,87,776/- to `
4,38,490/-. The enhanced compensation of ` 50,714/- shall carry interest
@ 8% per annum as awarded by the Claims Tribunal.
22. This accident took place more than 15 years ago, the enhanced
compensation is only a small amount. The Respondent No.3 Insurance
Company is directed to deposit the enhanced compensation with the
Claims Tribunal within six weeks and shall be released to the Appellant.
23. The Appeal is allowed in above terms.
24. Pending Applications stands disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 06, 2012
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