Delhi High Court
Wing Commander (Retd) O.P. Verma vs Dharam Singh & Ors on 24 May, 2012
Author: G.P. Mittal
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:24th May 2012
+ FAO. No.576/1999
WING COMMANDER (RETD) O.P. VERMA
..... Appellants
Through: Mr. Deepak Goel with
Ms. S. Janani, Advocates
Versus
DHARAM SINGH & ORS. ..... Respondents
Through: Mr. Kanwal Chaudhary,
Advocate for the Respondent
No.3 Insurance Company
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant Wing Commander (Retd.) O.P. Verma
(Squadron Leader at the time of the accident) seeks
enhancement of compensation of ` 2,88,000/- awarded to him
for having suffered injuries in a motor accident which occurred
on 08.01.1988.
2. On the fateful day i.e. 08.01.1988, the Appellant was in the
process of boarding a bus DEP 4483 Route No.610 at Central
Secretariat. The bus driver (the First Respondent) suddenly
started the bus. On account of the jerk, the Appellant fell down
and suffered multiple fractures on his right leg. He was
admitted in the Army Hospital from 08.01.1988 to 16.02.1988,
15.03.1988 to 9.05.1988 and from 20.06.1988 to 25.06.1988.
He was operated on 25.03.1988. On account of the restriction
of movements in his right lower limb, the Appellant was put in
permanent low medical category with effect from 01.12.1990.
3. At the time of the accident, the Appellant was getting a salary of
`10,495/-. Although, he got promotion as Wing Commander;
the Appellant's case is that as he could not have been promoted
as Group Captain due to him being placed in permanent low
medical category, he took voluntary retirement in the year 1997
at the age of 46 years.
4. The Motor Accidents Claims Tribunal (the Claims Tribunal)
assessed the loss of earning capacity after the age of his
superannuation to be 25% vis-a-vis his whole body, adopted a
multiplier of 5 after the age of retirement, to grant him
compensation towards loss of earning capacity.
5. The compensation awarded is tabulated hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Pain, Shock and `25,000/-
Suffering
2. Loss of Leave ` 63,000/-
3. Loss of Future Earning ` 1,50,000/-
Capacity
4. Conveyance and ` 8,000/-
Transport
+ ` 40,000/-
Total ` 2,88,000/-
6. The contentions raised on behalf of the Appellant is that the
compensation awarded towards pain and suffering, loss of
future earning capacity and loss of amenities in life is low. No
compensation has been awarded towards disfigurement and
future medical treatment.
7. The sum of `40,000/- was not counted by the Claims Tribunal
while totaling the amount, thus a compensation of `2,48,000/-
was awarded to the Appellant.
8. On the other hand, the learned counsel for the Respondent
Insurance Company argues that the Appellant took voluntary
retirement of his own without any compulsion. The
compensation awarded is just and reasonable. As far as
mistake in totaling a compensation of `40,000/- which as
awarded by the Claims Tribunal towards inconvenience, loss of
expectation of life is concerned, it may be granted to him.
9. Section 168 of the Motor Vehicles Act, 1988 (the Act) enjoins
the Claims Tribunal and the Courts to award compensation
which is just and reasonable. 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."
10. At the time of the accident, the Appellant was a young Air
Force Officer aged 37 years. After the accident, he got
promoted as Wing Commander. It is established on record that
if found suitable, he could have been promoted to the rank of
Group Captain. However, him being placed in lower medical
category, he was not entitled to the said promotion.
11. It was Appellant's voluntary decision to seek premature
retirement. In normal course, he would have continued in
service till the age of 52 years. The Court can take judicial
notice of the fact that an Army/Air Force Officer gets suitable
employment in good private sector companies after their
retirement. The Claims Tribunal for this purpose took the
multiplier of 5 which at the age of 52 was very low. I would
assume the loss of earning capacity to be 25% in respect of the
whole body as taken by the Claims Tribunal, but would add
30% towards future prospects and adopt a multiplier of 11 at
the age of 52 years which was normal age of superannuation in
his case. The loss of future earning capacity comes to
`4,50,235/- (`10495/- x 12 + 30% x 25% x 11) instead of
`1,50,000/- as granted by the Claims Tribunal.
12. It is difficult to measure the pain and suffering in terms of
money which has been suffered by the claimant on account of
serious injuries caused to him in a motor accident. Since the
compensation is required to be paid for pain and suffering an
attempt must be made to award compensation which may have
some objective relation with the pain and suffering underwent
by the victim of a motor accident. For this purpose, the Claims
Tribunal and the Courts normally consider the nature of injury;
the parts of the body where the injuries were sustained;
surgeries (if any) underwent by the victim; confinement in the
hospital and the duration of the treatment. The Appellant has
been awarded a compensation of ` 25,000/- under this head.
On the scale of the value of money in the year 1988 when this
accident took place the compensation seems to be just and
reasonable.
13. The Appellant would have inconvenience throughout his life.
He would have difficulty in squatting, running and boarding a
public transport bus. The compensation of `40,000/- awarded
towards loss of amenities, disfigurement and loss of
expectation of life needs enhancement. The same is increased
to `60,000/-.
14. No specific evidence was produced in relation to future
treatment. Even as a retired Air Force Officer, the Appellant
shall be entitled to the facility of free treatment in
Government/Army Hospital where he got treatment in respect
of the injuries suffered in the accident. In the circumstances, I
am not inclined to award any compensation towards future
treatment.
15. The overall compensation is increased from ` 2,88,000/- to
`6,08,235/- which shall carry interest @ 12% per annum for a
period of six years up to the date of the award i.e. 07.09.1999.
The Appeal was dismissed in default on 07.03.2008 and then
again on 20.07.2011. In the circumstances, the Appellant
would be entitled to interest @ 7.5% for nine years from the
date of the filing of the Appeal till the judgment of this Court
and thereafter till the deposit of the enhanced amount by the
Respondent Insurance Company.
16. The enhanced compensation of ` 3,20,235/- along with interest
shall be deposited by the Respondent No.3 New India
Assurance Co. Ltd. in the name of the Appellant in UCO Bank,
Delhi High Court Branch within six weeks.
17. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 24, 2012
pst
