Delhi High Court
United India Insurance Co. Ltd. vs Valsama Joseph Rajan & Ors. on 21 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: Ist February, 2012
Pronounced on: 21st February, 2012
+ MAC. APP. No.845/2010
UNITED INDIA INSURANCE CO. LTD.
..... Appellant
Through: Mr. Vineet Malhotra with
Mr. Rohan Sharma, Advocates
Versus
VALSAMA JOSEPH RAJAN & ORS.
..... Respondents
Through: Mr. O.P. Mannie, Advocate for
the Respondents /Claimants
WITH
+ MAC. APP. No.132/2012
VALSAMA JOSEPH RAJAN & ORS.
..... Appellants
Through Mr. O.P. Mannie, Advocate
Versus
UNITED INDIA INSURANCE CO. LTD.
..... Respondent
Through: Mr. Vineet Malhotra with
Mr. Rohan Sharma, Advocates
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
MAC. APP. Nos.845/2010 & 132/2012 Page 1 of 11
JUDGMENT
G. P. MITTAL, J.
1. These are two Cross-Appeals arising out of a judgment dated
21.08.2010 passed by the Motor Accident Claims Tribunal
whereby a claim petition under Section 166 filed by the First
Respondent in MAC APP No.845/2010 was allowed and she
was awarded a compensation of `12,51,357/- for having
suffered injuries in a motor accident which took place on
20.01.2004.
2. MAC APP No.845/2010 has been preferred by the Appellant
United India Insurance Co. Ltd. for reduction of compensation
on the ground that the compensation awarded is exorbitant and
excessive. The Cross-Objections registered as MAC APP.
No.132/2012 are preferred by the First Respondent where the
First Respondent says that the compensation awarded is not
just and proper as she has not been compensated for the loss of
amenities in life and for mental pain and suffering for not
bearing a child in future.
3. For the sake of convenience, the Appellant United India
Insurance Co. Ltd. shall be referred to as the "insurer" and the
First Respondent who suffered injuries in the accident shall be
referred to as the "Claimant".
4. The finding of fact on proof of negligence has not been
challenged by the insurer. I am, therefore, not expected to go
into this question.
5. The Claimant at the time of the accident was aged 34 years and
was working as an Accounts Officer with M/s. S.A. Packaging
Pvt. Ltd. and was getting a salary of ` 9000/- per month.
Immediately after the accident, the Claimant was removed to
Moolchand Khairati Ram Hospital. After first aid, she was
shifted to Bhardwaj Hospital where she remained admitted
from 20.01.2004 to 28.01.2004. The Claimant was then
admitted in Indraprastha Apollo Hospital on 22.06.2004 and
was discharged from there on 25.06.2004. She suffered
fractures of right clavicle, left humerus, ribs and pelvis. The
disability certificate Ex.PY issued by All India Institute of
Medical Sciences (AIIMS) shows that she suffered 60%
permanent physical impairment in relation to her body. The
certificate is extracted hereunder:
"Reported date of injury: 20/1/2004
First treatment and MLC registered at : Moolchand Hospital
Other Hospitals where treated reportedly: Apollo Clinic,
Vasant Kunj:
Bhardwaj Hospital,
Noida
Whether treated at AIIMS: No
If treated at AIIMS, which department(s) : No
This is to certify that Valsamma Joseph, wife of Shri Rajan
P.K., 34 years old female, PMR OPD No. 10660/2006 is a
case of "Post traumatic fractures of right clavicle, left
humerus, ribs and pelvis". She is physically handicapped and
has 60% (Sixy) permanent physical impairment in relation to
her all four limbs and trunk.
Note: This condition is not likely to change. Reassessment is
not recommended."
6. The Appellant was unable to join her duty for a period of six
months. She was awarded the compensation under various
heads, which is extracted hereunder:
Sl. Compensation under Awarded by the
various heads Claims Tribunal
No.
1. Loss of Income `54,000/-
2. Loss of Future Income ` 10,36,800/-
2. Medical Expenses ` 95,557/-
3. Pain & Suffering ` 50,000/-
4. Conveyance ` 10,000/-
5. Special Diet ` 5,000/-
TOTAL ` 12,51,357/-
7. The following contentions are raised on behalf of the Insurer:
i) The certificate Ex.PW1/105 reflects that the Claimant
resumed her duty on 05.07.2004 i.e. within six months of
the accident, therefore, no loss of future income should
have been granted.
ii) The Claimant by the initial certificate issued by the
Doctor was advised rest for three months. She could not
have been awarded compensation for loss of pay for six
months.
iii) The Claimant did not lead any evidence that she did not
receive any salary during the period she took leave.
8. Per contra, it is urged by the learned counsel for the Claimant
that the Claimant could not join her duties as she wanted to
rehabilitate herself. She was unable to take the load and,
therefore, had to resign. Thus, it is contended that the Claims
Tribunal finding on granting loss of future income cannot be
faulted. It is contended that no compensation has been
awarded towards amenities in life and for pain and mental
agony in not bearing a child in future.
9. Section 168 of the Act enjoins the Tribunal to make an award
determining the amount of compensation which appears to be
just. However, the objective factors, which may constitute the
basis of compensation appearing as just, have not been
indicated in the Act. Thus, the expression "which appears to
just" vests a wide discretion in the Tribunal in the matter of
determination of compensation. Nevertheless, the wide
amplitude of such power does not empower the Tribunal to
determine the compensation arbitrarily, or to ignore settled
principles relating to determination of compensation.
Similarly, although the Act is a beneficial legislation, it can
neither be allowed to be used as a source of profit, nor as a
windfall to the persons, affected nor should it be punitive to the
person(s) liable to pay compensation. The determination of
compensation must be based on certain data, establishing
reasonable nexus between the loss incurred by the dependents
of the deceased and the compensation to be awarded to them.
In nutshell, the amount of compensation determination to be
payable to the claimant(s) has to be fair and reasonable by
accepted legal standards.
10. In General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas(Mrs.) and Ors,
(1994) 2 SCC 176, the Supreme Court observed that the
determination of the quantum must answer what contemporary
society "would deem to be a fair sum such as would allow the
wrongdoer to hold up his head among his neighbours and say
with their approval that he has done the fair thing". The
amount awarded must not be niggardly since the law values life
and limb in a free society in generous scales. At the same time,
a misplaced sympathy, generosity and benevolence cannot be
the guiding factor for determining the compensation. The
object of providing compensation is to place the claimant(s), to
the extent possible, in almost the same financial position, as
they were in before the accident and not to make a fortune out
of misfortune that has befallen them.
11. On the basis of the Claimant's testimony as PW1 and the
documentary evidence including the disability shows that she
suffered following injuries:
"_ Fracture Clavicle (Right)
_ B/L Multiple fracture ribs
_ Fracture left humerus- Treated with ORIF with Bone Grafting
_ Fracture left radial head- Excision done
_ Fracture Pelvis B/L
_ Loss of Upper one incisor tooth
_ Multiple abrasions and blunt injuries all over body."
12. The Claimant's testimony on the extent of injuries was not
challenged in cross-examination. The disability certificate
Ex.PY was proved by Dr. S.L. Yadav. He testified that the
Claimant suffered 60% permanent physical impairment of four
limbs and trunks. She was issued a certificate Ex.PW1/105 by
Dr. Manoj Sharma, Consultant and Orthopaedician, which is
extracted hereunder:
"TO WHOM IT MAY CONCERN
This is to state that Mrs.Valsamma, 30 years/F was admitted to
Bhardwaj Hospital under my care as a case of Multiple
fractures(Fracture clavicle with left humerus (arm) with
multiple rib fractures B/L with fracture (L) radial head with
fracture Pelvis with loss of upper incisor tooth) on 20/01/04.
She had a poor general condition (BP:
80mmHg,Pulse:134/min. and gasping state) when she was
revived by I.U.Fluids, haemocoel and blood transfusion, a
chest tube was inserted. Later when her condition settled and
her life was out of danger. She was taken up for surgery and
excision head radius with ORIF humerous (L) was done under
G.A. on 24/01/04. She was put on Physiotherapy and complete
bed rest for 3 months. But when she was ambulated she had
pain pelvic area and sciatic neuritis. She was further advised
rest and conservative treatment. Her humerus went into non
union for which she was reoperated at Indraprashtha Apollo
Hospital and reosteosynthesis with bone grafting (L) humerus
was done on 23/06/04. The patient and her husband have been
explained well about the after effects to the healed fracture
pelvis and ribs that her chest capacity will become lesser,
chances of pain later and chest infection, inability for strenuous
work, long travel by sitting and pregnancy. Also loss of full
power/strength and mild pain on heavy work in (L) elbow due
to excised radical head. She has been allowed to join duty (but
only light ones) since 05/07/04 and keep the (L) arm in a Broad
arm sling, not to lift any heavy weight and minimally use it for
Computer operation for at least three more months.
Sd/-
Dr. Manoj Sharma,
Consultant and Orthopaedician"
13. The Claimant's testimony as PW1 that she could not cope up
with the work and hence had to leave the job was not
challenged in the cross-examination.
14. It is urged by the learned counsel for the insurer that the
Claimant should have examined some Gynecologist to prove
that she would not be able to bear a child in future.
15. It is nowhere stated in the certificate Ex.PW1/105 that the
Claimant cannot bear a child. What was stated was that
because of healed fracture of pelvis and ribs, her chest capacity
will become lesser. There may be chances of pain later, chest
infection, inability to do strenuous work, long travel by sitting
(difficulty in pregnancy). Admittedly, no Gynecologist has
been produced and as stated earlier, the certificate Ex.PW1/105
shows that she will have the difficulty in pregnancy because of
fracture of the pelvis (bone). Thus, what can be inferred is that
the Claimant, if she wanted to bear a child, would be in
constant fear of the difficulties during the pregnancy and the
delivery.
16. The Certificate Ex.PW1/105 clearly shows that she was
permitted to join for light work only w.e.f. 05.07.2004. She
was asked to keep the left arm in a broad arm sling, not to lift
any heavy weight and minimally use it for computer operation
for at least three more months. It is well-settled that to award
compensation for loss of earning capacity, the Claimant must
prove that the disability suffered by her had practically affected
his/her earning capacity. (Raj Kumar v. Ajay Kumar & Anr.,
2011(1) SCC 343).
17. It is true that the Claimant was employed as an Accounts
Officer and was not expected to perform any physical work.
She was permitted to start light duty by the Certificate
Ex.PW1/105. It is also true that her testimony that she could
not cope up with the work was not challenged in the cross-
examination. Taking totality of circumstances into
consideration, I am of the view that in the absence of any
expert evidence, she could not have been awarded a
compensation to the extent of 60% on account of loss of
earning capacity. At the same time, considering the nature of
injuries suffered by her coupled with the fact that she would
have difficulty and would be under constant stress if she
decided to have a child, some compensation ought to have been
awarded. I would reduce the loss of earning capacity from
60%, though given in the disability certificate Ex.PY, to 40%.
Moreover, the liability towards Income Tax was not taken into
consideration while determining the loss of future earning
capacity. Thus, the loss of future income comes to `6,23,360/-
(9000 X 12=1,08,000 - 10,600 (Income Tax) X 16 X 40%).
18. The accident took place on 20.01.2004 and by certificate Ex.
PW-1/1065 the Claimant was allowed to join light duty w.e.f.
05.07.2004. Though there is no evidence that the Claimant was
paid salary for the leave but in any case she was entitled to be
compensated for the loss of leave. Thus the Tribunal's finding
awarding six months salary for loss of income cannot be
faulted.
19. The compensation is recomputed as under:
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Loss of Income(for six `54,000/- ` 54,000/-
months @ `9000/- X 6)
2. Loss of Future Income ` 10,36,800/- `6,23,360/-
2. Medical Expenses ` 95,557/- ` 95,557/-
3. Pain & Suffering ` 50,000/- ` 50,000/-
4. Conveyance ` 10,000/- ` 10,000/-
5. Special Diet ` 5,000/- ` 5,000/-
6. Loss of Amenities, Nil il ` 1,50,000/-
including difficulty in
bearing child
Total ` 12,51,357/- ` 9,87,917/-
20. The overall compensation is reduced from ` 12,51,357/- to `
9,87,917/-
21. The interest granted by the Claims Tribunal @ 7.5% per annum
is maintained. The amount of ` 9,87,917/- along with
proportionate interest shall be released and held in Fixed
Deposit in terms of para 17 of the impugned order passed by
the Claims Tribunal. The amount required to be deposited for
various period in terms of the Claims Tribunal order would be
held in Fixed Deposit in UCO Bank, Delhi High Court Branch.
22. The excess amount of `2,63,440/- along with interest, if any,
accrued during the pendency of the Appeal shall be returned to
the Appellant Insurance Company.
23. MAC APP No.845/2010 and MAC APP No.132/2012 are
allowed in above terms.
24. The statutory amount, if any, deposited by the Appellant
Insurance Company shall be returned.
(G.P. MITTAL)
JUDGE
FEBRUARY 21, 2012
pst
