Delhi High Court
Ashwani Sharma vs Upender Nayyar & Anr on 5 November, 2012
Author: G.P. Mittal
$~ 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 5th November, 2012
+ MAC. APP. 58/2010
ASHWANI SHARMA ..... Appellant
Through Mr.Suneet Nagpal, Advocate
versus
UPENDER NAYYAR & ANR ..... Respondents
Through None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `59,276/- awarded in
favour of the Appellant by the Motor Accident Claims Tribunal(the
Claims Tribunal) for having suffered injuries in a motor vehicle accident
which occurred on 26.06.1991.
2. In the absence of any Appeal by the driver, owner or the insurer, the
finding on negligence has attained finality.
3. Immediately after the accident, the Appellant was removed to Dr. R.M.L.
Hospital. He was found to have suffered lacerated wound on the left
upper arm, left elbow and on the left hand. After treatment, the Appellant
was discharged from the hospital on 29.06.1991. He did not recover from
the injury and was admitted in Safdarjang Hospital on 24.08.1991. There
was restriction of mobility of his fingers and hypertrophied scar on the
dorsum of left hand and a diffuse tender swelling over proximate part of
the index finger. The Appellant underwent surgery and was discharged
from the hospital after two days on 26.08.1991. He remained an outdoor
patient in the Safdarjang Hospital till September, 1991. According to the
Appellant, he also remained under treatment of some private doctors.
The Appellant claimed that he was working with Overnite Express and
was earning a salary of `4,500/- per month(including perks). The Claims
Tribunal was not satisfied with the evidence with regard to the
Appellant's income. The Appellant suffered permanent disability to the
extent of 10% in relation to his left hand on account of scar over dorsum
of hand and malunited fracture of index finger. The Claims Tribunal, as
stated earlier, awarded a compensation of `59,276/-, which is tabulated
hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Pain and Suffering `15,000/-
2. Medicines, Medical ` 5,700/-
Treatment,
Conveyance and Special
` 5,000/-
Diet
3. Loss of Leave ` 18,576/-
4. Permanent Disfigurement ` 10,000/-
5. Loss of Enjoyment and ` 5,000/-
Amenities of Life
Total ` 59,276/-
4. The following conditions are raised on behalf of the Appellant:
(i) The Claims Tribunal erred in awarding compensation on
account of loss of earning capacity on the basis of the minimum
wages of an unskilled worker. The Appellant's testimony with
regard to his income was not challenged which was proved by a
copy of the Income Tax Return placed on record.
(ii) The Appellant had to take leave for a period of more than two
months. No compensation was awarded on account of loss of
leave.
(iii) The compensation awarded towards permanent disfigurement
and loss of amenities and conveyance and special diet as also
on account of pain and suffering is on the lower side.
LOSS OF EARNING CAPACITY:
5. I have before me the Appellant's testimony who examined himself as
PW1. It is not in dispute that the Appellant was aged 26 years on the date
of the accident. He testified that he was working as a Branch Manager
with Overnite Express Ltd., 11098-B, East Park Road, Vivekanand Gali,
New Delhi and was drawing a salary of `3,500/- and allowance of
`1,000/- per month. This fact was also stated in the Claim Petition. The
Appellant also sought to summon PW7 Yashpal Sharma, Personnel
Manager of Overnite Express. This witness deposed that he was
employed with Overnite Express for the last about six years. He deposed
that the service record of the Appellant(Ashwani Sharma) who was
alleged to be working with Overnite Express till the year 1991 is not
available as the record is destroyed after a period of seven years. The
Appellant also placed on record the Income Tax Return for the A.Y.
1991-92 along with computation of income (Mark H). This shows that
the Appellant received a gross salary of `36,900/- from Overnite Express.
He had an income of `250/- from interest and income of `4,350/- from
tuitions. There was a liability of tax to the extent of `372/- which was
duly paid. There is no rebuttal to the Appellant's testimony and the
documentary evidence produced.
6. In his cross-examination, the Appellant deposed that on the date of the
recording his statement, that is, 09.02.2004 he was working as a
Management Consultant of D.T.A. Consulting, 4-D White House, 10,
Bhagwan Dass Road, New Delhi and was getting salary and perks of
`1,00,000/- per month. It is important to note that the Appellant did not
conceal his income after the accident. He left his job with M/s. Overnite
Express in the year 1991 itself. It is true that the Appellant's future
income has not decreased on account of permanent disability. The
disability certificate issued by the Medical Board of DDU Hospital
clearly shows that the Appellant suffered 10% permanent disability in
relation to his left hand, on account of scar over dorsum of hand and
malunited fracture of index finger. The index finger plays an important
role in the movement of a hand. The Claims Tribunal took loss of
earning capacity to be 10%. No expert evidence was produced by the
Appellant to show the effect of the disability on his earning capacity,
apart from the Appellant's testimony that movement of his left hand is
restricted on account of disability coupled with the fact that the disability
certificate was not challenged in cross-examination. The Appellant was
in private employment and continues to be so. In the circumstances, I
would take the loss of earning capacity on account of disability to be only
5% as against permanent disability of 10%. The Appellant would be
entitled to an addition of 30% on account of inflation in view of the
judgment of the Supreme Court in Santosh Devi v. National Insurance
Company Ltd. & Ors., 2012 (4) SCALE 559, relied on and discussed by
this Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011)
decided on 16.07.2012. Loss of earning capacity thus comes to `45,170/-
(`41,250/- - 372/- (Income Tax) x 17 x 5% + 30%) as against the sum of
`18,576/- awarded by the Claims Tribunal.
LOSS OF LEAVE:
7. It is borne out from the record that after the accident the Appellant was
removed to Dr. R.M.L. Hospital. He was discharged from the Hospital
after three days. He was discharged from the Safdarjang Hospital after
the surgery and plaster of his left hand. After two weeks of removal of
the plaster, Dr. A.C. Malik advised to remove the affected finger to avoid
any future infection. The Appellant was operated upon in Safdarjang
Hospital on 24.08.1991. In view of this, it would be reasonable to hold
that the Appellant must not have been able to attend to his work for a
period of about two months. He is, therefore, entitled to a compensation
of `41,000 x 2 ÷ 12 (`6850/- rounded off) on account of loss of leave.
8. Keeping in view the circumstances detailed above, the compensation on
account of disfigurement and loss of amenities (`10,000/- + `5,000/-) is
enhanced to `20,000/-. The compensation towards pain and suffering is
enhanced from `15,000/- to `25,000/- and towards conveyance and
special diet is enhanced from a lumpsum amount of `5,000/- to `5,000/-
each. The overall compensation is recomputed as under:
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Pain and Suffering `15,000/- `25,000/-
2. Medicines & Medical ` 5,700/- ` 5,700/-
Treatment
3. Conveyance and Special ` 5,000/- `10,000/-
Diet (`5,000/- +
`5000/-)
4. Loss of Earning Capacity ` 18,576/- `45,170/-
5. Loss of Leave - `6,850/-
6. Permanent Disfigurement ` 10,000/- ` 20,000/-
Loss of Enjoyment and ` 5,000/-
Amenities of Life
Total ` 59,276/- ` 1,12,720/-
9. The enhanced compensation of `53,444/- shall carry interest @ 7.5% per
annum from the date of the filing of the Petition till its payment.
10. The Respondent No.2 New India Assurance Company Ltd. is directed to
deposit the enhanced compensation of `53,444/- along with interest with
the Claims Tribunal within six weeks which shall be released on deposit.
11. The Appeal is allowed in above terms.
12. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 05, 2012
pst
