Delhi High Court
Mohd Saleem vs Chander & Ors on 4 July, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 4th July, 2012
+ MAC.APP. 164/2011
MOHD SALEEM ..... Appellant
Through: Mr. Arun Srivastava, Adv. with
Mr. B.K. Tomar, Adv.
versus
CHANDER & ORS ..... Respondent
Through: Mr. R.K. Tripathi, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
C.M. APPL.No.3788/2011 (delay)
There is a delay of 178 days in filing the Appeal.
For the reasons stated in the application, the delay of 178 days
in filing the Appeal is condoned.
The Application is allowed.
MAC.APP. 164/2011
1. The Appeal is for enhancement of compensation of `2,17,000/-
awarded in favour of the Appellant for having suffered injuries
in a motor accident which occurred on 16.02.2008.
2. On appreciation of evidence, the Motor Accident Claims
Tribunal (the Claims Tribunal) found that the accident was
caused on account of contributory negligence of the Appellant.
The Appellant suffered fracture of right shaft femur which was
fixed with implant. Because of restriction of movement in right
hip and right leg, the Medical Board of Hindu Rao Hospital
issued a Disability Certificate Ex.PW-2/A declaring the
Appellant to be physically disabled to the exent of 55% in
respect of his left lower limb. The compensation of `4,34,000/-
was computed and since the Appellant was held to be
contributory negligent, a sum of `2,17,000/- was awarded as
compensation with interest @ 7.5% per annum. The
compensation awarded is tabulated hereunder:-
Sl. Compensation under various heads Awarded by
the Claims
No. Tribunal
1. Medicines and Medical Treatment ` 15,000/-
2. Pain and Sufferings ` 25,000/-
3. Loss of Income/Loss of Amenities of ` 3,50,000/-
Life
4. Attendant Charges ` 24,000/-
5. Conveyance ` 10,000/-
6. Special Diet ` 10,000/-
Total ` 4,34,000/-
3. The following contentions are raised on behalf of the
Appellant:-
(i) There was no contributory negligence on the part of the
Appellant. 50% deduction ought not to have been made
in award of the compensation.
(ii) Although, the Appellant suffered 55% permanent
disability, a lumpsum compensation of `2,00,000/- was
awarded which it very meager. The Claims Tribunal took
the disability to be 30%. Even on this, the loss of future
earning capacity would come to `9,18,000/-.
(iii) No compensation towards loss of amenities in life was
granted although it was mentioned in item No.3 extracted
above. (The compensation of `3,50,000/- consisted of
`2,00,000/- towards future loss of earning capacity and
`1.5 lacs towards loss of income).
4. On the other hand, it is urged by the learned counsel for the
Respondent Insurance Company that the contributory
negligence on the part of the Appellant was evident as he was
coming from a by lane and was not conscious of the traffic
coming on the main road while entering the same. It is stated
that the loss of earning capacity was not proved by the
Appellant vis-à-vis the nature of his job and the Claims
Tribunal in its discretion granted a sum of `2,00,000/- towards
the loss of earning capacity which was quite liberal.
5. It is stated that the compensation towards loss of amenities in
life may be suitably awarded.
NEGLIGENCE:-
6. On the basis of the report lodged by the Appellant, FIR
No.38/2008 was registered in Police Station Subzi Mandi,
whereas on the complaint of Respondent No.1, the owner of the
offending motor cycle, FIR No.189/2008 was recorded in the
same Police Station. The Claims Tribunal dealt with the issue
of negligence as under:-
"..RW1 respondent No.1 driver/owner of the offending
motorcycle denied his negligence and claimed petitioner
was responsible for the accident in question and a
counter FIR was also lodged by him. He had suffered
grievous injuries and remained hospitalized in Tirath
Ram Hospital from 16/08/08 to 18/08/08 and was still
continuing treatment. He admitted that he was arrested
in the FIR lodged by petitioner and was facing trial. In
cross-examination he denied the suggestion that the
accident was caused due to his negligence.
Ex.PW-1/6 is the site plan relied by the petitioner which
is also part of record filed by the Police as accident
information report. The contents of FIR no.38/08
Ex.PW1/2 lodged by the petitioner reveals that the
petitioner was going to his home but due to traffic jam
near the Cinema Hall had entered the adjoining Gali and
had come to the main road. As soon as the petitioner
came to the main road the offending vehicle hit him. The
site plan also shows, that the petitioner had entered the
main road and in the middle of the main road, exactly
opposite to the Gali, from where petitioner had entered
the main road, the accident took place. This also reveals
that the respondent no.1 was coming from the opposite
direction on the main road. The petitioner in these
circumstances therefore should have exercised caution
when he entered the main road from the Gali. The main
road is wide enough to easily accommodate two vehicles.
Both the vehicles are of similar power. It is therefore,
clear that there was equal contributory negligence by the
petitioner and respondent no.1 in causing of the
accident.."
7. Learned counsel for the Appellant has taken me through the
Inspection Reports in respect of both the vehicles got inspected
in the criminal case by Investigating Officer and has urged that
the front portion of the offending vehicle had struck against the
left portion of the motorcycle driven by the Appellant. From
the Mechanical Inspection Report, it is not possible to give such
finding. Even if, it is assumed that the front portion of the
motorcycle No.DL-6SZ-8138 had struck against the motorcycle
of the Appellant, even then it is established that the Appellant
entered the main road from a by lane and should have been
cautious and mindful of the traffic coming on the main road. In
this view of matter, the finding of contributory negligence
reached by the Claims Tribunal cannot be faulted.
LOSS OF FUTURE EARNING CAPACITY:-
8. It is not disputed that the Appellant suffered 55% permanent
disability in respect of his right lower limb. It is established that
he suffered fracture of right shaft femur and this fracture
ultimately resulted in restricted movement of his hip and right
leg.
9. 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 terms 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."
10. Turning to the facts of the instant case, the Appellant as per his
testimony was in the business of manufacturing / trading in the
name and style of Golden Product. He testified that on account
of the injuries suffered in the accident, the Appellant was totally
disabled to perform his business. The Appellant failed to bring
out as to what exactly was the nature of work being performed
by him during the course of his business. In any case, trading
activity of any person in small business would be impacted by
restriction of movement of hip and one of the legs.
Unfortunately, the Appellant did not bring in any evidence to
prove as to how much was the impact on his earning capacity.
He was content to say that he was totally disabled which is not
acceptable for want of any expert evidence. In the
circumstances of the case, I would make a guess work and hold
that there was an impact of about 15% on Appellant's earning
capacity. The compensation on account of loss of future earning
capacity would thus come to `3,69,750/- (1,50,000/- - 5,000/-
(income tax) x 15% x 17). The compensation under this head is
enhanced from `2,00,000/- to `3,69,750/-.
LOSS OF AMENITIES IN LIFE:-
11. As stated earlier at Serial No.3 of the table it was mentioned
that the compensation under the head of loss of amenities in life
is being granted but this was not actually reflected as a sum of
`3,50,000/- shown against this item consisted of a sum of
`2,00,000/- towards loss of future earning capacity and
`1,50,000/- towards loss of income for not attending the
business. On account of the restriction of right hip and right leg
movement, the Appellant would have difficulty in running,
walking and in his day to day life. Considering that the
Appellant was a young person, aged about 26 years, I would
make a provision for `60,000/- under this head.
12. The compensation granted is tabulated hereunder:-
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Medicines and Medical ` 15,000/- ` 15,000/-
Treatment
2. Pain and Sufferings ` 25,000/- ` 25,000/-
3. Loss of Income ` 2,00,000/- ` 3,69,750/-
Loss of Amenities of Life ` 1,50,000/- ` 1,50,000/-
4. Attendant Charges ` 24,000/- ` 24,000/-
5. Conveyance ` 10,000/- ` 10,000/-
6. Special Diet ` 10,000/- ` 10,000/-
7. Loss of Amenities in Life -- ` 60,000/-
Total ` 4,34,000/- ` 6,63,750/-
13. Since the Appellant also contributed to the accident, the
compensation stands reduced to 50% as held by the Claims
Tribunal.
14. The compensation is thus enhanced from `2,17,000/- to
`3,31,875/- rounded off to `3,32,000/-. The enhanced
compensation of `1,15,000/- shall carry interest @ 7.5% per
annum as awarded by the Claims Tribunal, which shall be
deposited in the name of the Appellant with the Claims Tribunal
within six weeks.
15. The Appellant is in business. In the circumstances, I would not
like to keep the enhanced compensation in a long term deposit.
The enhanced compensation along with interest shall be
released to the Appellant immediately on deposit.
16. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
JULY 04, 2012
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