Delhi High Court
Master Rahul vs Shailender Sharma & Ors. on 17 July, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th July, 2012
+ MAC.APP. 230/2011
MASTER RAHUL ..... Appellant
Through: Mr. Navneet Goel, Adv. with
Ms. Suman N. Rawat, Adv.
versus
SHAILENDER SHARMA & ORS. ..... Respondents
Through: Mr. Sameer Nandwani, Adv. for
R-4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `1,13,672/-
awarded to the Appellant for having suffered injuries in a motor
vehicle accident which occurred on 13.10.2007.
2. The finding on negligence is not challenged by the Respondents
and has thus become final between the parties.
3. At the time of the accident, the deceased was aged 12 years and
was a student of 7th standard. Apart from other injuries, he
suffered crush injury on his left hand resulting into amputation
of fourth finger. The Medical Board of Babu Jagjivan Ram
Memorial Hospital gave a Disability Certificate Ex.PW-1/28
opining the Appellant to be suffering from 25% permanent
physical impairment in relation to left hand because of
amputation of fourth finger of left hand with stiff hand.
4. The Claims Tribunal dealt with the aspect of permanent
disability as under:-
"One finger of the left hand of the petitioner has been
amputated whereas another finger is not properly
working due to stiffness. In the certificate Ex.PW-1/28,
the extent of disability qua the whole body is not
described. After relying upon the above mentioned cited
case, I am of the view that the permanent disability qua
the whole body has to be treated at 10% because the 25%
disability is only in respect of the left hand. Accordingly,
the earning capacity of the petitioner is to be treated as
having been reduced to an extent of 10%.
Petitioner was a student aged about 12 years at the time
of accident. He was not earning anything, so in that
situation a notional income of 15,000/- p.a. has to be
calculated as per Schedule of Section 163A of Motor
Vehicle Act and multiplier of 15 has to be applied."
5. The compensation awarded is tabulated hereunder:-
Sl. Compensation under various Awarded by the
heads Claims Tribunal
No.
1. Loss of Notional Income `22,500/-
2. Medical Expenses ` 31,172/-
3. Special Diet & Conveyance ` 10,000/-
Charges
4. Pain and Sufferings, ` 50,000/-
Inconvenience, Disfigurement
of the hand
Total ` 1,13,672/-
6. Following contentions are raised on behalf of the Appellant:-
(i) The Claims Tribunal erred in taking the notional income
of `15,000/-. The Appellant was still studying and would
have studied further before seeking employment and his
potential income should have been taken into
consideration to award the loss of future earning capacity.
(ii) As per the Disability Certificate Ex.PW-1/28, the
Appellant suffered 25% permanent disability in respect of
his left hand. The Claims Tribunal erred in awarding the
loss of earning capacity only to the extent of 10% instead
of 25%.
(iii) No compensation was awarded towards the loss of
amenities and the compensation awarded towards pain
and suffering and disfigurement amount of `50,000/- is
on the lower side.
7. The Appellant was a student of 7th standard and this disability
was only in left hand. In the circumstances and in the absence
of any specific evidence, the Claims Tribunal was justified in
taking the loss of earning capacity to be 10% vis-à-vis the
whole body. The Claims Tribunal, however, fell into error in
awarding the loss of earning capacity on notional income of
`15,000/-. The Appellant was a student of 7th standard. Even
if, he was not from well off family, he would have studied at
least for a few years before taking employment. The loss of
earning capacity, therefore, ought to have been granted on the
wages at least of a Non Matriculate. He was also entitled to
addition of 30% on the notional income of a Non-Matriculate
on the basis of the judgment in Santosh Devi v. National
Insurance Company Ltd. & Ors., 2012 (4) SCALE 559.
8. The compensation on account of loss of earning capacity thus
would come to `1,02,857/- (3663/- + 30% x 12 x 18 x 10%).
9. It is difficult to measure in terms of money the pain and
suffering which has been suffered by the claimant on account of
serious injuries caused to him in a motor accident. Since the
compensation is required to be paid for pain and suffering an
attempt must be made to award compensation which may have
some objective relation with the pain and suffering underwent
by the victim of a motor accident. For this purpose, the Claims
Tribunal and the Courts normally consider the nature of injury;
the parts of the body where the injuries were sustained;
surgeries (if any) underwent by the victim; confinement in the
hospital and the duration of the treatment.
10. The Claims Tribunal awarded a lumpsum compensation of
`50,000/- towards the pain and suffering, inconvenience and
disfigurement. The Appellant remained admitted in Anand
Maya Hospital, Jahangirpuri form 3.10.207 to 23.10.207. He
was operated on 3.10.2007. He was advised rest for a period of
six weeks w.e.f. 3.10.2007. In the circumstances, I would award
a compensation of `40,000/- towards pain and suffering.
11. The Appellant would have difficulty in holding heavy things.
His marriage prospects are also affected. I separately award a
compensation of `75,000/- towards the loss of amenities,
inconvenience, disfigurement and diminishing marriage
prospects.
12. No evidence was led by the Appellant that any future treatment
would be needed. Considering the nature of injuries,
particularly, stiffness in the left hand, he would need some
physiotherapy. I award him lumpsum compensation of `5,000/-
towards physiotherapy and future treatment.
13. The Appellant was unable to attend to his studies for at least a
couple of months. I award a compensation of `5,000/- towards
loss of studies.
14. The compensation awarded by this Court is tabulated
hereunder:-
Sl. Compensation under various Awarded by
heads this Court
No.
1. Loss of Notional Income `1,02,857/-
2. Medical Expenses ` 31,172/-
3. Special Diet & Conveyance ` 10,000/-
Charges
4. Pain and Sufferings, Inconvenience, `40,000/-
Disfigurement of the hand
5. Loss of Amenities, Inconvenience, `75,000/-
Disfigurement & Diminishing
Marriage Prospects.
6. Physiotherapy & Future Treatment. `5,000/-
7. Loss of Studies `5,000/-
Total ` 2,69,029/-
15. The compensation is thus enhanced from `1,13,672/- to
`2,69,029/-.
16. The enhanced compensation of `1,55,357/- shall carry interest
@ 7.5 % per annum from the date of filing of the Petition till its
payment.
17. Respondent No.4 United India Insurance Company is directed
to deposit the enhanced compensation along with interest with
the Claims Tribunal within six weeks.
18. On deposit, 80% of the enhanced compensation shall be held in
fixed deposit for a period of five years. Rest shall be released to
the Appellant immediately.
19. The Appellant shall be entitled to apply to the Claims Tribunal
for premature release of the amount if needed for his studies or
otherwise.
20. The Appeal is allowed in above terms.
21. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JULY 17, 2012
vk
