Delhi High Court
National Insurance Company Ltd vs Sanjeev Sherawat & Ors on 22 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22nd May, 2012
+ MAC.APP. 915/2011
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Ms. Nanita Sharma, Advocate
versus
SANJEEV SHERAWAT & ORS ..... Respondents
Through: Mr. D.V. Goyal, Advocate for
R-1.
+ MAC.APP. 1162/2011
SANJEEV SHERAWAT ..... Appellant
Through: Mr. D.V. Goyal, Advocate
versus
NATIONAL INSURANCE COMPANY LTD. & ORS.
..... Respondents
Through: Ms. Nanita Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM APP.23369/2011 (delay) in MAC APP1162/2011
1. This is Cross Appeal to MAC APP.915/2011. There is a delay
of 122 days in filing the Appeal. For the reasons as stated in the
Application, the delay of 122 days in filing the Appeal is
condoned. The Application is allowed.
MAC APP.915/2011 and MAC APP1162/2011
2. These two Appeals arise out of a common judgment dated
25.06.2011 passed in Suit No.80/10/07 whereby a compensation
of `11,66,718/- was awarded in favour of Sanjeev Sherawat
(First Respondent in MAC APP.915/2011 and the Appellant in
MAC APP.1162/2011) for having suffered injuries in a motor
accident which occurred on 26.06.2007.
3. For the sake of convenience, the Appellant in MAC
APP.915/2011 shall be referred to as the Insurer and the
Appellant in MAC APP.1162/2011 shall be referred to as the
Claimant.
4. The Claimant who was a student of 10th standard on the date of
the accident was proceeding on his two wheeler No. HPK-7200
from Delhi University to Shivaji College. When he reached
near traffic booth in front of ESI Hospital, Ring Road, he was
hit by a Tata-407 crane No.DL-1LE-5535. Due to the forceful
impact, the Claimant suffered grievous injuries. His foot got
separated from the ankle. He was removed to DDU Hospital
and thereafter shifted to Jaipur Golden Hospital. To save the
Claimant's life his left leg had to be amputated below knee
resulting into permanent disablement in respect of the left lower
limb to the extent of 60%.
5. The Claims Tribunal on appreciation of evidence found that
60% disability in respect of left lower limb on account of
amputation would be treated as 60% functional disability
resulting into loss of earning capacity to that extent.
6. The Claims Tribunal took the minimum wages, added 50%
towards inflation and awarded a compensation of `7,77,600/-
towards loss of earning capacity. It is this award which is being
challenged by the Appellant Insurance Company being
excessive and exorbitant.
7. The compensation awarded under various heads is extracted
hereunder:-
Sl. Compensation under various heads Awarded by
the Claims
No. Tribunal
1. Compensation for the expenses incurred `1,71,818/-
on medical treatment
2. Compensation for Special Diet, `37,300/-
Conveyance and Attendant Charges
3. Compensation on account of Loss of `20,000/-
Studies
4. Compensation for Loss of Income `20,000/-
5. Compensation for Pain & Suffering `50,000/-
6. Compensation for Loss of Amenities of `40,000/-
Life
7. Compensation for Loss of Earning `7,77,600/-
Capacity
8. Compensation for Physical `50,000/-
Disfigurement due to Permanent
Disability
Total ` 11,66,718/-
8. On the other hand, the contention raised on behalf of the
Claimant is that the compensation awarded towards loss of one
year and loss of studies amounting to `20,000/-; the
compensation awarded towards pain and suffering amounting to
`50,000/- and compensation for loss of amenities in life and
physical disfigurement amounting to `40,000/- and `50,000/-
respectively was on the lower side. The compensation awarded
towards loss of earning capacity, argues the learned counsel for
the Claimant, cannot be said to be excessive or exorbitant in
view of the fact that the Claimant would not be able to carry out
any work at all with the loss of one leg.
9. It may be noticed that at the relevant time, the Claimant was a
student of 10th standard. It has come in evidence that the
Claimant lost 15 months in his studies as he was recovering
from the serious injuries suffered by him. At the time of
disposal of the Petition, the Claimant was pursuing BA after
having passed his 12th examination.
10. In General Manager, Kerala Road Transport Corporation,
Trivandrum v. Susamma Thomas & Ors., (1994) 2 SCC 176, the
Supreme Court held as under: -
"5......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'. All this means that the
sum awarded must be fair and reasonable by accepted
legal standards."
11. 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. 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."
12. The Claimant in his Affidavit Ex.PW-1/A testified that his
career and his future life is ruined as he was deprived of to join
Indian Army which was his desire.
13. Different disability may have different impact on the earning
capacity depending upon vocation or enterprise of the victim.
14. In this case, the Claimant was only a student on the date of the
accident. Thus, his profession had not yet crystallized. A person
losing left leg working as a driver may not be able to drive the
vehicle. There may not be much difficulty in carrying out the
professional duty, if the victim with lose of one leg is to do only
the desk work.
15. It is merely a speculation that the Claimant wanted to join
Indian Army. It is not known whether he would have been
selected or would have been really interested to join the Indian
Army in due course.
16. In the circumstances I am left with the option just to make a
guess work and would take the loss of earning capacity to be
40% in respect of the whole body as against 60% taken by the
Claims Tribunal. The potential income of `6,000/- (inclusive of
future prospects), in the absence of any good academic record
even for a Graduate was appropriately taken by the Claims
Tribunal (although the Claimant was only a student of 10 th
standard at the relevant time).
17. Thus, the loss of earning capacity would come to `5,18,400/-
(6,000/- x 12 x 18 x 40%).
18. In the case of Govind Yadav v. New India Assurance Co. Ltd.,
2011(10) SC 683, the Supreme Court had the occasion to deal
with the case of an amputation of leg above knee of a victim
aged 24 years in a motor accident which took place in the year
2004. The Hon'ble Supreme Court granted a sum of `1.5 lakhs
towards pain and suffering and `1.5 lakhs towards loss of
amenities in life and loss of marriage prospects.
19. In this case, the amputation is below knee and the Claimant is
aged 20 years. Here, the Claims Tribunal awarded the
compensation of `40,000/- towards the loss of amenities in life
and `50,000/- towards disfigurement. This compensation of
`90,000/- is raised to Rs.1.5 lacs and is awarded towards loss of
amenities in life, disfigurement and loss of marriage prospects.
The compensation of `50,000/- awarded towards pain and
suffering is enhanced to `75,000/-.
20. The Claims Tribunal awarded the compensation of `20,000/-
towards loss of studies. The Claimant's testimony that he lost
15 months in his studies was not challenged in cross-
examination. Thus, it is established that it was not only loss of
studies but there was loss of one year in life as well. The
compensation of `20,000/- awarded towards loss of studies is
enhanced to `50,000/-.
21.The compensation awarded is re-computed as under:-
Sl. Compensation under various heads Awarded by
this Court
No.
1. Loss of Amenities in Life, Disfigurement `1,50,000/-
and Loss of Marriage Prospects.
2. Pain and Suffering ` 75,000/-
3. Loss of Studies ` 50,000/-
4. Loss of Earning Capacity `5,18,400/-
5. Medical Treatment `1,71,818/-
(as awarded by the Claims Tribunal)
6. Special Diet, Conveyance & Attendant ` 37,300/-
Charges
(as awarded by the Claims Tribunal)
7. Loss of Income ` 20,000/-
(as awarded by the Claims Tribunal)
Total ` 10,22,518/-
22. The compensation is thus reduced from `11,66,718/- to
`10,22,518/-.
23. By order dated 19.12.2011, pending disposal of the Appeal a
sum of `2,00,000/- along with the proportionate interest was
ordered to be released in favour of the Claimant. Rest of the
amount payable along with proportionate interest shall be held
in fixed deposit for a period of one year, three years, five years,
seven years, nine years and eleven years in equal proportion.
24. By order dated 17.10.2011 execution of the award was ordered
to be stayed, subject to deposit of the 80% of the award amount
in UCO Bank, Delhi High Court Branch, New Delhi, the
deficiency in the deposit shall be made up within six weeks.
25. Insurer National Insurance Company Limited is directed to
deposit the balance awarded amount within six weeks in the
abovesaid Bank.
26. The Statutory amount of `25,000/- shall be refunded to the
Appellant Insurance Company in MAC APP.915/2011.
27. Both the Appeals are allowed in above terms.
28. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
MAY 22, 2012
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