Delhi High Court
New India Assurance Co. Ltd. vs Kanahiya Lal & Ors. on 17 May, 2012
Author: G.P. Mittal
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:17th May, 2012
+ MAC. No.1152/2011
NEW INDIA ASSURANCE CO. LTD.
..... Appellant
Through: Mr. Sameer Nandwani,
Advocate
Versus
KANAHIYA LAL & ORS. ..... Respondents
Through: Mr. M.K. Sinha, Advocate for
Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of ` 15,07,318/-
awarded by the Claims Tribunal in favour of the First
Respondent for having suffered injuries in an accident which
occurred on 09.01.2009.
2. The contentions raised on behalf of the Appellant are:
(i) This was a head-on collision, thus there was
contributory negligence on the part of the First
Respondent. The compensation awarded should
be reduced by 50%.
(ii) The First Respondent suffered 80% disability on
account of amputation of his right leg below knee.
The Claims Tribunal did not give any finding as to
the actual loss of earning capacity and simply
reduced it on surmises to 50%. It should have
been taken as less than 40%.
3. The Claims Tribunal dealt with the issue of negligence as
under:
"6. Since the present claim petition has been
instituted under the provisions of Section 166 MV
Act, it was incumbent upon the petitioner to
establish on record the negligence attributed to R-1,
driver while plying the RTV. The petitioner has
clearly stated the circumstances leading to the
accident. In the FIR initially and in the claim
petition, it is averred that R-1 was plying the RTV in
rash and negligent manner resulting in the accident.
The FIR, Ex.PW1/2 is the first statement made by
the petitioner against the respondent for the rash
and negligent act. On the basis of the FIR, the IO
has proceeded with the investigation and has
prepared the site plan. The site plan clearly reflects
that the accident has occurred in the lane where the
petitioner was going as the respondent was plying
his RTV in the wrong side. The site plan besides the
mechanical inspection report, EX.PW1/7 relied
upon in the charge-sheet, also shows the
involvement of the offending vehicle....."
4. I have perused the certified copy of the site plan placed on the
record of the Claims Tribunal. It shows that the RTV driver
(Respondent No.2) was coming from wrong side, but the
accident took place at the blind turning. The First Respondent
could not have expected or anticipated anybody coming from
the wrong side. Since it is established that the Second
Respondent while driving RTV No. DL 1V A-3091 in a rash
and negligent manner came from the wrong side, the
negligence on the part of the Second Respondent was writ
large. The Claims Tribunal finding on this aspect is logical and
well-reasoned. The same is confirmed.
5. 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 in the loss of
earning capacity. It was laid down that the compensation on
account of loss of earning capacity has to be granted in
accordance to the nature of job undertaken by the victim of
motor accident and the disability suffered by him. 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
terns 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
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."
6. In this case, the First Respondent was running a travel agency.
Most of the time, he would be required to be at the desk for his
work; at the same time, he has to carry out some outdoor
activities also in connection with his business. In the
circumstances, it would be just and fair to take the loss of
earning capacity to 40% in respect of the whole body. The
compensation on account of loss of earning capacity comes to `
9,21,400/- (` 1,35,500/- X 40% X 17)
7. The compensation is thus reduced by ` 2,30,792/-. The excess
compensation of ` 2,30,792/- along with proportionate interest
and the interest earned during the pendency of the Appeal shall
be returned to the Appellant Insurance Company.
8. Rest of the amount shall be disbursed in terms of order passed
by the Claims Tribunal.
9. The Statutory amount of ` 25,000/- shall be released to the
Appellant Insurance Company.
10. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 17, 2012
pst
