Delhi High Court
Aman vs Sanjay Pandey & Ors on 23 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23nd May, 2012
+ MAC.APP. 779/2010
AMAN ..... Appellant
Through: Mr. S.N. Parashar, Advocate
versus
SANJAY PANDEY & ORS ..... Respondent
Through: Ms. Suman Bagga, Advocate
for R-3.
+ MAC.APP. 813/2010
ICICI LOMBARD GENERAL INSURANCE CO LTD..
..... Appellant
Through: Ms. Suman Bagga, Advocate
versus
AMAN & ORS ..... Respondents
Through: Mr. S.N.Parashar, Advocate for
R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals MAC APP.779/2010 and MAC
APP.813/2010 arise out of a common judgment dated 26.7.2010
passed by the Motor Accident Claims Tribunal (the Claims
Tribunal) whereby a compensation of `5,69,600/- (including the
interim compensation of `25,000/- was awarded in favour of the
Appellant Aman (in MAC APP.779/2010) for having suffered
injuries in a motor accident which occurred on 26.10.2007.
2. For the sake of convenience, Aman Appellant in MAC
APP.779/2010 shall be referred to as the Claimant and the
Appellant ICICI Lombard General Insurance Company Limited
in MAC APP.813/2010 shall be referred to as the Insurer.
3. The facts of the case are not disputed. On 26.10.2007 at about
4:30 A.M., the Claimant was returning to Subzi Mandi,
Shahdara after purchasing vegetables from Subzi Mandi,
Gazipur. He was travelling in tempo No.DL-1LH-7715 along
with vegetables. When the tempo reached Keshav Chowk,
Shahdara, the tempo driver (the First Respondent) took a sharp
turn while driving the tempo at a high speed. As a result of this,
the driver lost control of the tempo which capsized. The
Claimant suffered serious crush injury of his left foot. He was
immediately removed to GTB hospital. The doctors were unable
to save his left leg. The same had to be amputated below knee.
He was discharged from the hospital on 31.10.2007.
4. It was claimed that the deceased was earning `6,000/- per
month from selling vegetables. He became totally disabled on
account of permanent disability in respect of the left lower limb
to the extent of 60% suffered by him. His marriage prospects
diminished because of the disfigurement.
5. The Claims Tribunal awarded the compensation which is
tabulated hereunder:-
Sl. Compensation under various Awarded by the
heads Claims Tribunal
No.
1. Reimbursement on Medical `4,000/-
Expenses
2. Loss of Earning for 9 months ` 36,000/-
presuming income of `4,000/-
per month.
3. Disability 60% ` 4,89,600/-
4. Pain & Suffering and other ` 40,000/-
Allied Expenses including Loss
of Amenities of Life.
Total ` 5,69,600/-
6. The Claimant's grievance is that in view of the injuries suffered,
he should have been granted loss of earning capacity to the
extent of 100% as he is unable to work at all. Addition on
account of future prospects ought to have been made. The
compensation towards pain and suffering, loss of amenities in
life is too meager. No compensation has been awarded to him
for loss of marriage prospects.
7. On the other hand, learned counsel for the Insurer urges that
60% disability suffered by the Claimant was in respect of the
left lower limb only on account of amputation below knee. This
could not result into loss of earning capacity to the extent of
60%. At the most, it could be taken to be 25% to 30% in
respect of the whole body.
8. 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."
9. The minimum wages of an unskilled worker on the date of the
accident were `3516/- per month. The Claims Tribunal on
making assessment held the Claimant's income to be `4,000/-
per month as against his claimed income of `6,000/- per month.
In the absence of any cogent evidence with regard to the
income, the Claims Tribunal's finding with regard to the
income cannot be faulted. In the absence of any evidence with
regard to the future prospects, the Claimant was not entitled to
any addition on account of future prospects. (Sarla Verma
(Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6
SCC 121).
10. 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."
11. Thus, the same disability may have a different impact on the
earning capacity of an injured following a different vocation.
12. In the instant case, the Claimant was a vegetable seller. It is
evident that in connection with his business he used to visit
Subzi Mandi, Gazipur. The Claimant was not doing any desk
work. Even if, he would be sitting while selling the vegetables,
it would require active movement of his hand and legs in
attending to the customers. Even for purchasing vegetables his
movement would be restricted by loss of left lower limb below
knee.
13. In the circumstances, I would assess the extent of permanent
disability affecting loss of his earning capacity to the extent of
40%. The compensation payable under this head comes to
`3,45,600/- (4,000/- x 12 x 18 (age being 25 years) x 40%).
14. The Claimant suffered crush injury on his left foot. He remained
admitted in GTB hospital from 26.10.2007 to 31.10.2007. As
stated earlier, there was amputation of left leg below knee
resulting into 60% disability in respect of left lower limb.
15. 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.
16. In this case, the Claimant was aged 25 years on the date of the
accident. In the circumstances of the case, I would award a sum
of `75,000/- towards pain and suffering and `1,50,000/-
towards loss of amenities and expectations in life, disfigurement
and loss of marriage prospects.
17. The Claimant was treated in the govt. hospital and the treatment
was free. In the absence of any evidence, the Claims Tribunal
awarded a sum of `4,000/- towards expenditure on treatment.
The same cannot be faulted. Some provision ought to have
been made towards special diet and conveyance. I would award
a sum of `5,000/- each towards special diet and conveyance.
18. The compensation awarded is re-computed as under:-
Sl.No. Compensation under various Awarded by
heads this Court
1. Reimbursement on Medical `4,000/-
Expenses
2. Loss of Earning for 9 months ` 36,000/-
presuming income of `4,000/- per
month.
3. Disability 40% ` 3,45,600/-
4. Pain & Suffering ` 75,000/-
5. Loss of Amenities and ` 1,50,000/-
Expectations in Life,
Disfigurement & Loss of Marriage
Prospects
6. Special Diet ` 5,000/-
7. Conveyance ` 5,000/-
Total ` 6,20,600/-
19. The compensation is thus enhanced from `5,69,600/- to
`6,20,600/-.
20. The enhanced compensation of `51,000/- shall carry interest @
7.5% per annum from the date of filing of the Petition till the
date of its payment.
21. The enhanced compensation along with interest shall be
deposited in the name of the Claimant in UCO Bank, Delhi
High Court Branch, New Delhi and shall be held in fixed
deposit for a period of one year.
22. Insurer, ICICI Lombard General Insurance Company Limited is
directed to deposit the enhanced compensation along with
interest with UCO Bank, Delhi High Court, New Delhi within
six weeks.
23. The statutory amount of `25,000/- shall be refunded to the
Insurance Company after proof of deposit of the enhanced
compensation is filed with the Registrar of this Court by the
Insurer.
24. Both the Appeals are allowed in above terms.
25. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
MAY 23, 2012
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