Delhi High Court
New India Assurance Co. Ltd. vs Pradeep Kumar & Ors. on 19 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th March, 2012
Pronounced on: 19th March, 2012
+ MAC APP. 1011/2011
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. K.L. Nandwani, Adv.
versus
PRADEEP KUMAR & ORS. ..... Respondents
Through: Mr. Peeush Sharma, Adv. for
R-1.
+ MAC APP. 265/2012
PRADEEP KUMAR ..... Appellant
Through: Mr. Peeush Sharma, Adv.
versus
NEW INDIA ASSURANCE CO. LTD. ..... Respondent
Through: Mr. K.L. Nandwani, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
CM APPL.20729/2011 (delay) in MAC APP. 1011/2011
1. There is a delay of 30 days in filing the Appeal.
2. For the reasons stated in the application, the same is allowed.
Delay of 30 days in filing the Appeal is condoned.
3. The application stands disposed of.
MAC APP. 1011/2011 and MAC APP. 265/2012
4. These are two cross Appeals.
5. MAC APP.1011/2011 is filed by the Appellant New India
Assurance Company Limited (the Insurer) on the ground that
there was contributory negligence on the part of the first
Respondent (the Claimant) and that the compensation awarded
is exorbitant and excessive.
6. The first Respondent has filed the Cross Objections being MAC
APP. 265/2012 on the ground that the Motor Accident Claims
Tribunal (the Claims Tribunal) erred in taking the Appellant's
notional income of `15,000/- per annum only. The Claims
Tribunal ought to have been taken atleast the minimum wages
of a Graduate as the potential income of the first Respondent.
The Claims Tribunal also reduced the functional disability to
20% when the actual disability was 40% in respect of the right
lower limb. The Claimant thus seeks enhancement of
compensation to ` 10,00,000/-.
NEGLIGENCE
7. In order to prove the negligence, the Claimant filed his
Affidavit Ex.PW-1/A testifying the manner of the accident. He
deposed that on 15.04.2006 at about 9:30 A.M. while he was
proceeding to his College a Canter bearing registration No.UP-
14Z-9422 driven by the third Respondent in a rash and
negligent manner came on the wrong side of the road and
dashed against him. This part of the Claimant's testimony was
not challenged in cross-examination. The driver of the
offending vehicle (the third Respondent) was not produced to
rebut the Claimant's testimony. In the circumstances, the
Claims Tribunal's finding that the accident occurred on account
of rash and negligent driving by the third Respondent cannot be
said to be erroneous. I agree with the conclusion reached by the
Claims Tribunal that the third Respondent was responsible for
causing the accident.
QUANTUM OF COMPENSATION
8. By the impugned judgment, the Claims Tribunal awarded a
compensation of ` 4,08,000/- under the following heads:-
Sl. Compensation under various heads Awarded by
No. the Claims
Tribunal
1. Special Diet `15,000/-
2. Conveyance Allowance ` 15,000/-
3. Loss of study year, mental pain, agony, Loss ` 3,00,000/-
of Enjoyment of life, Loss of Prospectus of
marriage, disfigurement and Disability
4. Functional Disability ` 54,000/-
5. Medical Expenses ` 24,000/-
Total ` 4,08,000/-
9. The Claimant suffered multiple fracture on his right leg i.e.
fracture of right femur with fracture both bone right leg with
fracture patella right. He was admitted in GTB Hospital,
Dilshad Garden, Delhi immediately after the accident on
15.04.2006 and was discharged on 02.05.2006 (Ex.PW-1/3).
Debridement of wound was done. Stabilization was done with
Ilizarov ring fixator. The bones could not unite and the
Claimant was readmitted in GTB hospital on 07.12.2006. He
underwent surgery on 12.12.2006 and bone grafting was also
done. He was discharged from the hospital on 19.12.2006. The
Claimant was again admitted in the hospital on 04.03.2008 for
removal of implant and was discharged on 20.03.2008. On
account of serious multiple fractures in the right leg and femur
bone, the Claimant could not fully recover resulting in
permanent disability to the extent of 40% in respect of the right
lower limb (Ex.PW-1/2) even after 2½ years of the accident.
The Claimant could not stand without the help of crutch.
10. The Claimant was a student of B.A. Ist year on the date of the
accident. He remained confined to hospital for various periods
as stated earlier and was under treatment for 2½ years.
11. The Claimant deposed that on account of injuries suffered in the
accident, he could not continue his studies and became junior
amongst his classmates. He deposed that he could not
concentrate on his studies and on account of disability he might
not get a suitable employment. His future prospects have been
adversely affected; he would not be able to get a suitable match
for his marriage.
12. In the case of Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC
343, the Supreme Court brought out the distinction between
"permanent disability" and "functional disability" affecting
earning capacity. Para 10 and 14 of the report 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.
x 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."
13. The Claimant was aged about 22 years at the time of the
accident. After three years, he still continued with his studies.
It is not sure as to what profession he would follow. The nature
of injuries suffered by him would always be a handicap in his
mobility in standing, walking, running, etc. The Claims
Tribunal was, therefore, justified in making a guess work and
taking permanent disability vis-à-vis the whole body to the
extent of 20%. Although, the Claimant was not working at that
time, he being a student, but his earning capacity have been of a
Graduate, as he would have completed his studies after two
years of the accident. Thus, instead of taking the notional
income of `15,000/-, the Claims Tribunal ought to have
awarded him compensation on loss of earning capacity on the
minimum wages of a Graduate which was his potential
employment. He would be rather entitled to more compensation
if it is presumed that he would not be able to complete his
Graduation on account of the injuries suffered by him. I would,
thus, award him a compensation of ` 1,74,139/- (4031/- x 20% x
12 x 18) on account of loss of his earning capacity.
14. It is difficult to measure the pain and suffering in terms of the
money on account of serious injuries suffered 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 a 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.
15. Considering that the Claimant underwent successive surgeries
and remained under treatment for more than two years, he was
entitled to a compensation of ` 50,000/- towards pain and
suffering.
16. I have also mentioned about the loss of amenities and
inconvenience which he will suffer throughout his life. He
would be entitled to compensation of ` 1,00,000/- towards loss
of amenities in life and disfigurement. Claimant marriage
prospects would be serious affected on account of disfigurement
and permanent disability. Considering his young age, I would
award him a compensation of ` 50,000/- towards loss of
marriage prospects and ` 50,000/- towards loss of studies and
loss of two years in life.
17. The overall compensation is recomputed as under:-
Sl. Compensation under Awarded by Awarded by
No. various heads the Claims this Court
Tribunal
1. Special Diet `15,000/- `15,000/-
2. Conveyance Allowance ` 15,000/- ` 15,000/-
3. Loss of study year, mental ` 3,00,000/- Awarded
pain, agony, Loss of separately
Enjoyment of life, Loss of below
Prospectus of marriage,
disfigurement and
Disability
4. Functional Disability ` 54,000/- ` 1,74,139/-
affecting earning capacity
5. Medical Expenses ` 24,000/- ` 24,000/-
6. Pain and suffering ` 50,000/-
7. Loss of amenities in Life ` 1,00,000/-
and Disfigurement
8. Loss of marriage prospects ` 50,000/-
9. Loss of studies and loss of ` 50,000/-
two years in life
Total ` 4,08,000/- ` 4,78,139/-
18. The compensation is thus enhanced from `4,08,000/- to
`4,78,139/-. The enhanced compensation of ` 70,139/- shall
carry interest @ 8% per annum from the date of filing of the
petition till the date of payment, as awarded by the Claims
Tribunal.
19. Respondent New India Assurance Company Limited is directed
to deposit the enhanced amount along with upto date interest
within 30 days with Registrar General of this Court which shall
be released/held in fixed deposit in UCO Bank, Delhi High
Court, New Delhi as per the Claims Tribunal's order.
20. In view of the above, MAC APP.1011/2011 filed by the Insurer
is devoid of any merit. The same is accordingly dismissed.
21. MAC APP. 265/2012 filed by the Claimant is allowed in above
terms.
22. No costs.
23. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
MARCH 19, 2012
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