Delhi High Court
Oriental Insurance Co Ltd vs Mahesh Kumar & Ors on 16 July, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th July, 2012
+ MAC.APP. 635/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. A.K. Soni, Adv.
versus
MAHESH KUMAR & ORS ..... Respondents
Through: Mr. Peeush Sharma, Adv.
+ MAC.APP. 1175/2011
MAHESH KUMAR & ORS ..... Appellants
Through: Mr. Peeush Sharma, Adv.
versus
ORIENTAL INSURANCE CO ..... Respondent
Through: Mr.A.K. Soni, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals (MAC APP.635/2011 and MAC
APP.1175/2011) arise out of a judgment dated 04.04.2011
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby a compensation of `23,00,263/- was
awarded in favour of Mahesh Kumar for having suffered
injuries in a motor vehicle accident which occurred on
22.02.2009.
2. For the sake of convenience, the Appellant Oriental Insurance
Company shall be referred to as the Insurance Company and the
Cross Objectionist (MAC APP.1175/2011) shall be referred to
as the Claimant.
3. On 22.02.2009 at about 6:45 A.M., the Claimant was riding on
his motorcycle, when he reached Subroto Park near Dhaula
Kuan, a truck No.HR-39D-1724 came from behind and hit the
motorcycle. As a result of the forceful impact, the Claimant fell
down on the road along with his motorcycle. His left hand was
crushed. He was removed to Safdarjang Hospital where he
remained admitted from 22.02.2009 to 05.03.2009. The
claimant was not comfortable with the treatment. He was
admitted to Santosh Medical College where the amputation
above elbow was carried out. He remained admitted in Santosh
Medical College from 04.04.2009 to 20.04.2009.
4. The Claimant filed a Petition alleging that he was working as a
Supervisor in M/s. Sinar Jernix (India) Pvt. Ltd. and was getting
a salary of `8500/- per month. PW-2 Dr. R.K. Wadhwa, CMO
from Safdarjang Hospital deposed that the Claimant had
suffered 80% disability in his left upper limb on account of the
amputation of the arm above elbow.
5. On appreciation of evidence, the Claims Tribunal found that the
accident was caused on account of rash and negligent driving of
the truck No.HR-39D-1724 by Som Dutt (the Second
Respondent). Finding on negligence is not challenged by the
Insurance Company. The compensation of `23,00,263/-
awarded by the Claims Tribunal is tabulated hereunder:-
Sl. Compensation under various Awarded by the
heads Claims Tribunal
No.
1. Medical Treatment `17,463/-
2. Loss of Income due to ` 20,80,800/-
Disability
3. Disfigurement ` 80,000/-
4. Pain & Suffering ` 80,000/-
5. Special Diet ` 30,000/-
6. Conveyance Expenses ` 12,000/-
Total ` 23,00,263/-
6. It is urged by the learned counsel for the Insurance Company
that the Claimant suffered 80% disability in respect of his left
upper limb on account of amputation of his arm. This could not
have been more than 40% vis-à-vis the whole body. The Claims
Tribunal erred in awarding a compensation of `20,80,800/-
towards the loss of earning capacity which was exorbitant and
excessive.
7. On the other hand, it is urged by the learned counsel for the
Claimant that it was proved during inquiry before the Claims
Tribunal that the deceased was a left hander and he was unable
to join his duties as he was unable to perform his duties of a
supervisor on account of the injuries suffered by him. Thus, he
should have been awarded compensation to the extent of 100%
of the loss of his earning capacity and not 80% as granted by the
Claims Tribunal.
8. It is contended that no compensation was awarded towards the
period during which the Claimant was totally confined to bed.
Some compensation ought to have been awarded towards the
loss of amenities.
9. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court brought out difference between permanent
disability and functional disability resulting in the loss of
earning capacity. It was laid down that the Claims Tribunal
must ascertain whether the victim was prevented or restricted
from discharging his previous activities and functions but could
carry on some other or lesser scale of activities/functions so that
he could earn his livelihood. Paras 10,11,13, 14 and 15 of the
report in Raj Kumar (supra) are extracted hereunder:-
"10. Where the claimant suffers a permanent disability
as a result of injuries, the assessment of compensation
under the head of loss of future earnings, would depend
upon the effect and impact of such permanent disability
on his earning capacity. The Tribunal should not
mechanically apply the percentage of permanent
disability as the percentage of economic loss or loss of
earning capacity. In most of the cases, the percentage of
economic loss, that is, percentage of loss of earning
capacity, arising from a permanent disability will be
different from the percentage of permanent disability.
Some Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent disability
would result in a corresponding loss of earning capacity,
and consequently, if the evidence produced show 45% as
the permanent disability, will hold that there is 45% loss
of future earning capacity. In most of the cases, equating
the extent (percentage) of loss of earning capacity to the
extent (percentage) of permanent disability will result in
award of either too low or too high a compensation.
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 x x x
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the permanent
disability and what he could not do as a result of the
permanent ability (this is also relevant for awarding
compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession
and nature of work before the accident, as also his age.
The third step is to find out whether (i) the claimant is
totally disabled from earning any kind of livelihood, or
(ii) whether in spite of the permanent disability, the
claimant could still effectively carry on the activities and
functions, which he was earlier carrying on, or (iii)
whether he was prevented or restricted from discharging
his previous activities and functions, but could carry on
some other or lesser scale of activities and functions so
that he continues to earn or can continue to earn his
livelihood.
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.
15. It may be noted that when compensation is awarded
by treating the loss of future earning capacity as 100%
(or even anything more than 50%), the need to award
compensation separately under the head of loss of
amenities or loss of expectation of life may disappear and
as a result, only a token or nominal amount may have to
be awarded under the head of loss of amenities or loss of
expectation of life, as otherwise there may be a
duplication in the award of compensation. Be that as it
may."
10. Turning to the facts of the instant case, the Claimant testified
that he was a left hander. PW-4 Mr. M. Pramod Kumar, Deputy
Manager, HR of Sinar Jernix (India) Pvt. Ltd. also testified that
the deceased was a left hander. Although, the Claimant did not
state that he went to join his duties, but at the same time, a
perusal of PW-4's testimony would show that the employer
would have been unable to give him employment as he could
not carry the job of Supervisor because of the amputation of his
left arm. Although, there was no documentary evidence that the
Claimant was a left hander perhaps there could be none except
oral evidence, which came in the shape of PW-4's testimony.
No evidence was produced by the Claimant to show that he
could not carry out any other activities because of amputation of
his left arm. Assuming that the Claimant was a left hander, but
with a little practice for a couple of months, he could write with
his right hand also which may not be with the same fluency, but
to some extent will be usable. Thus, as stated in Raj Kumar
(supra) extracted earlier, the Claims Tribunal ought to have
been considered his earning capacity with his right hand. The
Claimant was a Graduate and work on a computer. In the
circumstances, at the most, the loss of earning capacity could
have been taken as 60%.
11. Thus, the compensation on account of loss of earning capacity
would come to `15,60,600/- (8500 + 50% x 12 x 17 x 60%)
instead of `20,80,800/- awarded by the Claims Tribunal.
12. It is true that the Claimant was not awarded any compensation
towards the loss of amenities in life. The compensation of
`80,000/- was awarded towards disfigurement which was quite
liberal. In Para 15 of the report in Raj Kumar (supra) extracted
above, it was held that where any compensation more than 50%
is awarded, award of compensation separately under the head of
loss of amenities in life and expectations in life may disappear
and as a result only a token or nominal amount may have to be
awarded.
13. The award of compensation of `80,000/- towards disfigurement
is taken as award of compensation towards disfigurement as
well as loss of amenities in life.
14. The Claimant remained admitted initially in Safdarjang Hospital
from 22.02.2009 to 05.03.2009 and then in Santosh Medical
College from 04.04.2009 to 20.04.2009 where the amputation
was carried out. Thus, it can be stated that the Claimant must
have taken at least three months to recover from the injuries.
The Claimant is entitled to a sum of `25,500/- (8500/- x 3)
towards loss of income for three months.
15. I have observed above that the Claimant could have started
working with his right hand at least to the extent of 40% with a
little effort in a couple of months.
16. I hold that after practising by himself for three months, the
Claimant could have carried out his work at least to the extent
of 40%. Accordingly, I grant a compensation of `25,500/-
(8500/- x 3) for practice / training for a period of three months
to work with his right hand as the Claimant was a left hander.
17. The compensation awarded is extracted hereunder:-
Sl. Compensation under various Awarded by this
heads Court
No.
1. Medical Treatment `17,463/-
2. Loss of Income due to ` 15,60,600/-
Disability
3. Disfigurement & Loss of ` 80,000/-
Amenities in life
4. Loss of Income for three ` 25,500/-
months (8500/- x 3)
5. Practice/Training for three ` 25,500/-
months (8500/- x 3)
4. Pain & Suffering ` 80,000/-
5. Special Diet ` 30,000/-
6. Conveyance Expenses ` 12,000/-
Total ` 18,31,063/-
18. The compensation thus stands reduced from `23,00,263/- to
`18,31,063/- which shall carry interest @ 7.5% per annum from
the date of filing of the petition till its deposit.
19. The excess amount of `4,69,200/- along with proportionate
interest and the interest earned during the pendency of the
Appeal shall be refunded to the Insurance Company.
20. Rest of the compensation shall be released to the Claimant in
terms of the order passed by the Claims Tribunal.
21. Both the Appeals stand disposed in above terms.
22. The statutory deposit of ` 25,000/- be refunded to the Insurance
Company.
23. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 16, 2012
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