Delhi High Court
Ramesh Chand vs Arjun & Ors on 26 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th March, 2012
Pronounced on: 26th March, 2012
+ MAC. APP. No.154/2010
RAMESH CHAND ..... Appellant
Through: Mr.Rajput, Advocate
Versus
ARJUN & ORS .... Respondents
Through: Mr. Kanwal Choudhary,
Advocate for the Respondent
No.3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appeal is for enhancement of compensation of ` 2,41,861/-
awarded in favour of the Appellant for having suffered injuries
in a motor accident which took place on 07.04.1995.
2. The Claims Tribunal by the impugned judgment found that the
accident was caused on account of rash and negligent driving
of the offending truck by the First Respondent, which was
owned by the Second Respondent and was insured with the
Respondent No.3. During inquiry it was claimed that the
Appellant was running an Atta Chakki and had an income of `
3000/- per month. In the absence of any documentary evidence
as to the Appellant's income, the Claims Tribunal took
minimum wages as the Appellant's income and factored 30%
of the Appellant's income to be his loss on account of injuries.
The compensation awarded can be tabulated hereunder:-
Loss of Income ` 1,41,861/-
Medical expenses ` 10,000/-
Pain & Suffering ` 30,000/-
Loss of future amenities ` 50,000/-
Special Diet ` 5,000/-
Conveyance ` 5,000/-
Total ` 2,41,861/-
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3. In the absence of any Appeal by the driver, the owner or the
insurer, I am not to go into the finding of negligence reached
by the Claims Tribunal.
4. Section 166 envisages grant of just and fair compensation to the
victims of the motor accident.
5. 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 the
misfortune that has befallen them.
6. 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 into loss of earning
capacity. Thus, compensation on account of loss of earning
capacity has to be granted in accordance to the nature of the job
undertaken by the victim of road accident. In this case, the
Appellant's statement that he was running an Atta Chakki was
not disputed in cross-examination. It was only the income
from the business of Atta Chakki which was challenged (to
which I would advert to a little later). An owner of a small
Atta Chakki has to perform minimal jobs of lifting small gunny
bags, Kanastars for pouring the same into the Chakki. He has
to climb on the Chakki for adjusting the quality of Atta as per
the requirement of the customers. Thus an amputation of his
right lower limb below knee disabled him in performing all
these jobs for which he would have to employ a person. In any
case, he could only perform the accounting and supervisory
work after having suffered amputation of his right lower limb.
Therefore, the loss of earning capacity to my mind, would be at
least 40%.
7. Coming to the Appellant's income; in his affidavit the
Appellant testified that at the time of filing the petition he had
an income of ` 3000/- per month. It is true that at the time of
his cross-examination in the Court he admitted that he was
earning ` 4000-5000/- from the same business of Atta Chakki
yet it cannot be lost sight of that during the course of these 12
years his income would have substantially increased if he had
not suffered an amputation of his right leg. Thus, it cannot be
said that there was no loss of earning capacity on account of
amputation of his right leg. In the absence of any rebuttal and
even otherwise it can be assumed that a person running an Atta
Chakki in the year 1995 would earn at least ` 3000/- per month.
Taking his annual income to be ` 36,000/-. The loss of earning
capacity comes to ` 2,44,800/- (` 3000x12x40%x14).
8. In the case of an amputation of the leg above the knee in Govind
Yadav v. The New India Insurance Co. Ltd. (2011)10 SCC 683,
the Hon'ble Supreme Court granted a sum of ` 1.5 lac towards
pain and suffering and ` 1.5 lac towards loss of amenities in
life and loss of marriage prospects. In Govind Yadav (supra)
the accident took place in the year 2004. In the instant case,
the accident took place in the year 1995. Moreover, in Govind
Yadav (supra) the injured was a bachelor. Thus compensation
towards pain and suffering is enhanced from ` 30,000/- to `
50,000/- and loss of amenities is enhanced from ` 50,000/- to `
75,000/-. The Appellant obtained his treatment from the
Government hospital. In the absence of any bills being
produced, the Claims Tribunal awarded a compensation of `
10,000/- on account of expenses incurred on medical,
treatment, accessories implants etc., which I would maintain.
Although, no evidence was produced by the Appellant, yet I
would award him a compensation of ` 25,000/- for purchasing
of an artificial limb considering that he was aged 26 years at
the time of the accident. The compensation awarded by this
Court is tabulated hereunder:-
Loss of Earning capacity ` 2,44,800/-
Medical expenses ` 10,000/-
Artificial limb ` 25,000/-
Pain & Suffering ` 50,000/-
Loss of future amenities ` 75,000/-
Special Diet ` 5,000/-
Conveyance ` 5,000/-
Total ` 4,14,800/-
9. The overall compensation is enhanced from `2,41,861/- to
`4,14,800/-. The enhanced compensation of `1,72,939/- shall
carry interest @7.5% per annum from the date of filing of the
petition till the date of deposit of the enhanced amount in this
Court.
10. The Respondent No.3 is directed to deposit the compensation
with the Registrar General of this Court within six weeks from
today.
11. Since the accident took place in the year 1995, hence the
compensation awarded should be released to the
Appellant/Claimant forthwith on deposit.
12. Statutory amount shall also be refunded.
13. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MARCH 26, 2012
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