Delhi High Court
Amrik Prasad vs Sunil Kumar & Ors. on 30 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21st March, 2012
Pronounced on: 30th March, 2012
+ MAC APP. 855/2010
AMRIK PRASAD .... Appellant
Through: Mr. S.K. Parashar, Adv.
versus
SUNIL KUMAR & ORS. .... Respondents
Through: Mr. Sameer Nandwani, Adv.
for Mr. K.L. Nandwani, Adv.
for R-3.
+ MAC APP. 726/2010
NEW INDIA ASSURANCE CO. LTD. .... Appellant
Through: Mr. Sameer Nandwani, Adv.
for Mr. K.L. Nandwani, Adv.
versus
AMRIK PARSHAD & ORS. .... Respondents
Through: Mr. S. K. Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. These two Cross Appeals arise out of a judgment dated
12.08.2010 whereby a compensation of `5,85,942/- was
awarded to Amrik Prasad, a tailor by profession, for having
suffered amputation of his right leg below knee, in a motor
accident which occurred on 20.10.2006.
2. MAC APP.726/2010 is by New India Assurance Company
Limited for reduction of the compensation while MAC
APP.855/2010 is for enhancement of compensation.
3. For the sake of convenience Amrik Prasad, the Appellant in
MAC 855/2010 shall be referred to as the Claimant and New
India Assurance Company Limited shall be referred to as the
Insurance Company.
4. Finding on the negligence is not disputed by the Insurance
Company, therefore, my task is simply to judge whether the
compensation awarded is just and fair or whether it calls for any
interference.
5. It is not disputed that immediately after the accident on
20.10.2006, the Claimant was removed to Safdarjung Hospital
where an amputation of the right leg had to be carried out
because of a serious crush injury. The Claimant was discharged
from the hospital on 26.10.2006. A Disability Certificate
Ex.PW-1/33 was issued by the Board of Doctors, Safdarjung
Hospital to the effect that the Claimant had suffered 60%
permanent disability in respect of his right lower limb.
6. During inquiry before the Motor Accident Claims Tribunal (the
Claims Tribunal) the Claimant averred that he was working as a
tailor with Nirmal Textiles Building No.5, Sector 14, Gurgaon.
He was getting a salary of `10,000/- per month. He spent `
40,000/- on his medical treatment, `10,000/- on conveyance and
` 10,000/- on special diet. The Claimant deposed that but for
the permanent disability suffered by him, he would have earned
much more and his income would have doubled with the
passage of time.
7. The Claims Tribunal found that the Claimant had produced bills
in respect of his medicines and treatment for about `12,000/-,
the Claims Tribunal, therefore, awarded a sum of `20,000/- for
the same. The Claims Tribunal believed the Claimant's version
regarding his expenditure on special diet and conveyance and
awarded a sum of `10,000/- each under these heads. It further
awarded a sum of `50,000/- each towards pain and suffering
and loss of amenities. Apart from a sum of ` 98,985/- and `
2,96,956/- towards loss of future earning capacity; a sum of `
50,000/- was also awarded towards future treatment.
8. The contention raised on behalf of the Claimant is that his
income should not have been taken as per minimum wages of a
semi-skilled worker. Some provision towards inflation ought to
have been made while awarding compensation towards loss of
earning capacity. It is contended that compensation awarded
towards pain and suffering and loss of amenities is too meager
and that compensation for disfigurement and for artificial limb
was not granted.
9. On the other hand, on behalf of the Insurance Company, it is
contended that with an amputation of the right leg below knee,
the loss of earning capacity for a tailor should not have been
taken to be 60%, at the most it could result in loss of earning
capacity to the extent of 15-20%.
10. Section 168 of the Motor Vehicles Act (the Act) envisages grant
of just and fair compensation to a victim of a motor accident.
11. 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,
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.
12. The Claimant sought to prove that he was working as a tailor
and was earning ` 10,000/- per month as an employee with
Nirmal Textiles Building. The Claimant was cross-examined at
length with respect to his employment with Nirmal Textiles
Building. He did not file any proof of his salary or any proof of
his employment with Nirmal Textiles. The Claims Tribunal,
therefore, rightly disbelieved the Claimant's income to be
`10,000/-.
13. At the same time, it is important to note that the Claimant's
testimony that he was working as a tailor was not challenged in
the cross-examination. In the year 2006, it would be reasonable
to assume that a tailor must be earning over ` 150/- per day. The
minimum wages of a skilled worker on the date of the accident
were ` 3736/- per month. Thus, I would venture to make a guess
work and hold the Claimant's income to be about ` 4500/- per
month. In the absence of any evidence with regard to the future
prospects, I would not make any addition while awarding
compensation for loss of earning capacity.
14. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343 the
Supreme Court dealt with in detail the effect of permanent
disability on the earning capacity of the injured. 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 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."
15. Thus, the same disability may have different impact on the
earning capacity of an injured following a different vocation.
The Claimant here was working as a tailor. It is not his case
that he is totally incapacitated to work as a tailor because of the
injuries suffered by him. It cannot be lost sight that now most
of the tailors work with an electric sewing machine.
16. Unfortunately, no evidence has been led by the Claimant as to
how his earning capacity has been affected. The Claims
Tribunal made a guess work and accepted 60% disability in
respect of his right lower limb to compute his loss of his earning
capacity. I am not inclined to follow the same. Some attempt
ought to have been made by the Claims Tribunal to at least go
into the nature of work undertaken by a tailor. For a long time,
a tailor has to remain standing for cutting the cloth. With an
artificial limb it would be difficult to stand for such a long
duration. The Claimant would have difficulty in picking up
various things needed for discharging his duties as a tailor. I
would, therefore, hold that there was a loss of earning capacity
to the extent of 30%.
17. The Claimant was aged about 35 years on the date of the
accident. The compensation payable under the head of loss of
earning capacity would come to ` 2,59,200/- (4500/- x 12 x 16 x
30%).
18. While awarding the compensation under non-pecuniary heads,
an attempt has to be made to award similar compensation, of
course, after adjusting the inflation.
19. In Govind Yadav v. The New India Insurance Co. Ltd. (2011)10
SCC 683, the accident occurred in the year 2004. The injured
Govind Yadav was a bachelor and was aged 24 years on the
date of the accident. The Hon'ble Supreme Court granted a
sum of ` 1,50,000/- towards pain and suffering and another sum
of ` 1,50,000/- towards loss of amenities in life and loss of
marriage prospects.
20. No compensation is claimed in this case on account of loss of
marriage prospects as the Claimant must be married. Here the
accident took place in the year 2006, thus in the facts and
circumstances of the case, I would award a sum of `1,50,000/-
towards pain and suffering and `1,00,000/- towards loss of
amenities in life and disfigurement.
21. The Claims Tribunal awarded a sum of ` 50,000/- towards
future treatment. A grievance is made by the Insurance
Company that there was no evidence with regard to the future
treatment. I would agree with the learned counsel for the
Insurance Company that no evidence was led that the Claimant
needed any future treatment. At the same time, the Claimant
proved receipt Ex.PW-1/32 for making an advance payment of `
875/- for the purchase of an artificial foot S-2 25 cm right leg
though the total cost of the artificial limb has not been given. As
the life of the Claimant would be easier with an artificial limb,
seeing his interest, I would award him a sum of ` 50,000/-
which was awarded by the Claims Tribunal towards future
treatment as the cost for the purchase of an artificial limb. The
overall compensation is recomputed as under:-
Sl. Compensation under various heads Awarded by
No. this Court
1. Loss of Earning Capacity 2,59,200/-
2. Pain and Suffering `1,50,000/-
3. Loss of Amenities and Disfigurement ` 1,00,000/-
4. Future Treatment / ` 50,000/-
Cost for Artificial Limb.
5. Special diet (as awarded by the ` 10,000/-
Claims Tribunal)
6. Conveyance (as awarded by the ` 10,000/-
Claims Tribunal)
7. For Medicines (as awarded by the ` 20,000/-
Claims Tribunal)
Total ` 5,99,200/-
22. Since a compensation of ` 5,88,942/- has been awarded by the
Claims Tribunal, it cannot be said that the same is not just and
fair. In the circumstances, I would not like to interfere with the
award made by the Claims Tribunal.
23. Both the Appeals are accordingly dismissed.
24. No costs.
25. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
MARCH 30, 2012
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