Delhi High Court
Bulan Das vs Dharambeer & Ors. on 12 December, 2012
Author: G.P. Mittal
$ 14 & 34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th December, 2012
+ MAC. APP. 745/2011
BULAN DAS ..... Appellant
Through: Mr. F.K. Jha, Advocate.
Versus
DHARAMBEER & ORS. ..... Respondents
Through: Mr. Sameer Nandwani, Advocate for the
Respondents No.3 Insurance Company.
+ MAC. APP. 814/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate
Versus
BULAN DAS & ORS. ..... Respondents
Through: Mr. F.K. Jha, Advocate for the
Respondents No.1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. In view of the judgment dated 05.11.2012 passed by the Supreme Court
of India in Civil Appeal No.7874/2012, the Appeal
(MAC.APP.814/2011) is restored to its original number.
2. These two Appeals arise out of a judgment dated 06.06.2011 passed by
the Motor Accident Claims Tribunal(the Claims Tribunal) whereby a
compensation of `18,69,000/- was awarded in favour of Bulan Das who
suffered injuries in a motor vehicle accident which occurred on
01.09.2010.
3. MAC.APP.745/2011 has been filed by Bulan Das, who suffered
amputation of both of his legs below knee, for enhancement of
compensation on the ground that the functional disability should have
taken as 100% as against 88% taken by the Claims Tribunal. It is stated
that the compensation awarded towards non-pecuniary damages is on the
lower side.
4. On the other hand, the plea of the Appellant Reliance General Insurance
Co. Ltd. (in MAC.APP.814/2011) is that the compensation awarded is
excessive and exorbitant inasmuch as an addition of 50% was made by
the Claims Tribunal on account of future prospects in spite of the fact that
there was no evidence with regard to the same. It is contended that the
compensation awarded towards non-pecuniary damages is on the higher
side.
5. For the sake of convenience, Appellant in MAC.APP.745/2011 shall be
referred to as Claimant and Appellant in MAC.APP.814/2011 shall be
referred to as the Insurance Company.
6. The finding on negligence reached by the Claims Tribunal is not
challenged by the Appellant Insurance Company; thus the same has
attained finality.
7. The Claims Tribunal awarded a compensation of `18,69,000/-, which is
tabulated hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Medicines & Treatment `10,000/-
2. Loss of Income ` 32,600/-
3. Loss of Earning Power ` 15,12,000/-
4. Loss of Amenities ` 75,000/-
5. Attendant Charges ` 50,000/-
6. Loss of Marriage ` 50,000/-
Prospects
7. Pain & Suffering ` 1,00,000/-
8. Conveyance & Special ` 40,000/-
Diet
Total ` 18,69,000/-
8. The trend of the Superior Courts is to award full and fair compensation.
In the case of Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court observed that the object of awarding damages is to make
good the loss suffered as a result of the wrong done as far as money can
do in a fair, reasonable and equitable manner. 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.
9. 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."
10. 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."
LOSS OF FUTURE EARNING CAPACITY:
11. During inquiry before the Claims Tribunal, it was claimed that the injured
was working as a delivery boy with M/s. Shiv Shakti Building Pvt. Ltd.
and earning `8,250/- per month. The Claimant failed to produce any
evidence with regard to the income. The Claims Tribunal thus for the
purpose of making assessment of the loss of future earning capacity took
the minimum wages of an unskilled worker. The Claims Tribunal made
an addition of 50% towards inflation on the basis of judgment of this
Court in Narinder Bishal & Anr. v. Sh. Rambir Singh & Ors.,
(MAC.APP.1007-08/2006) decided on 20.02.2008 and General Manager,
Kerala Road Transport Corporation, Trivandrum v. Susamma Thomas &
Ors., (1994) 2 SCC 176 and Sarla Dixit v. Balwant Yadav, (1996) 3 SCC
179.
12. Admittedly, the Claimant did not produce any evidence with regard to his
future prospects. In Bijoy Kumar Dugar v. Bidya Dhar Dutta & Ors,
(2006) 3 SCC 242 and Sarla Verma & Ors. v. Delhi Transport
Corporation & Anr, (2009) 6 SCC 121, the Supreme Court laid down that
augmentation towards future prospects has to be made only when there is
an evidence with regard to the future prospects of the deceased/victim or
when he/she is in permanent employment. In the instant case, the
Claimant was neither in permanent employment nor did he produce any
evidence with regard to his future prospects. Thus, addition of 50%
towards future prospects was not justified. On the other hand, there
could be an addition of 30% on account of inflation on the basis of report
of the Supreme Court in Santosh Devi v. National Insurance Company
Ltd. & Ors., 2012 (4) SCALE 559.
13. The Claims Tribunal took the functional disability on account of
amputation of both lower limbs below knee to be 88% as was mentioned
in the disability certificate. 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 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."
14. In the instant case, the Claimant was working as a delivery boy. In any
case, he was a menial labour. In the circumstances, on account of
amputation of both of his lower limbs, it would be difficult for the
Claimant to carry any menial work. Practically, the functional disability
in his case is 100%. The loss of future earning capacity thus comes to
`14,88,240/- (`5,300/- + 30% x 12 x 18) as against `15,12,000/- awarded
by the Claims Tribunal.
15. It is urged by the learned counsel for the Claimant that award of
compensation of `75,000/- towards loss of amenities and `1,00,000/-
towards pain and suffering is on the lower side, whereas the learned
counsel for the Insurance Company states that only a notional sum should
be awarded towards loss of amenities otherwise there would be
duplication of the award.
16. In the case of Govind Yadav v. New India Insurance Co. Ltd. (2011) 10
SCC 683, in case of amputation of leg above knee of a victim aged 24
years in an accident which took place in the year 2004, a compensation of
`1,50,000/- was awarded towards pain and suffering and `1,50,000/-
towards loss of amenities in life and loss of marriage prospects. The
award of compensation of `1,00,000/- towards pain and suffering is
consequently increased to `1,50,000/-, whereas the compensation
awarded towards loss of amenities is reduced from `75,000/- to
`40,000/-.
17. The compensation awarded is recomputed as under:
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Medicines & Treatment `10,000/- `10,000/-
2. Loss of Income ` 32,600/- ` 32,600/-
3. Loss of Earning Capacity ` 15,12,000/- ` 14,88,240/-
4. Loss of Amenities ` 75,000/- `40,000/-
5. Attendant Charges ` 50,000/- `50,000/-
6. Loss of Marriage ` 50,000/- ` 50,000/-
Prospects
7. Pain & Suffering ` 1,00,000/- ` 1,50,000/-
8. Conveyance & Special ` 40,000/- ` 40,000/-
Diet
Total ` 18,69,000/- ` 18,60,840/-
18. Thus, an award of `18,69,000/- cannot be said to be excessive and
exorbitant. The overall compensation awarded is just and reasonable.
19. The Appeals are devoid of any merit; the same are accordingly dismissed.
20. The compensation awarded shall be released in favour of the Claimant in
terms of orders passed by the Claims Tribunal.
21. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company.
22. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 12, 2012
pst
