Delhi High Court
Dtc & Anr. vs Veena Kapoor & Ors. on 22 November, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 7th November, 2012
Pronounced on: 22nd November, 2012
+ MAC.APP. 550/2005
DTC & ANR. ...... Appellants
Through: Mr. J.N. Aggarwal, Adv.
versus
VEENA KAPOOR & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Delhi Transport Corporation (DTC) impugns a judgment
dated 21.02.2005 passed by the Motor Accident Claims Tribunal (the
Claims Tribunal) whereby a compensation of `4,10,100/- was awarded in
favour of the First Respondent for having suffered injuries in a motor
vehicle accident which occurred on 30.04.1996.
2. As per the case set up by the First Respondent, on 30.04.1996 she was
travelling in a TSR No.DL-1RA-7004 from ISBT, Kashmere Gate to her
house at Vikaspuri. At about 4:30 A.M. the autorickshaw reached near
MIG flats, Rajouri Garden. A DTC bus No.DL-1P-9234 came from
behind; overtook the autorickshaw and without giving any signal abruptly
stopped the vehicle resulting in the TSR colliding against the rear of the
bus. The First Respondent suffered multiple fractures in the right foot,
patella right, clavicle and injuries on various parts of her body. She was
initially removed to DDU hospital where MLC Ex.PW-2/B was prepared.
She then received treatment from Dr. N.C. Joshi Memorial Hospital. She
suffered 15% disability in respect of the right lower limb on account of
restriction of knee movement and slight limp in walking.
3. On appreciation of evidence, the Claims Tribunal found that the accident
was caused on account of rash and negligent driving of the driver of DTC
bus and awarded a compensation of `4,10,100/- which is tabulated
hereunder:-
Sl. Compensation under various heads Awarded by the
No. Claims
Tribunal
1. Medical Expenses, Conveyance & Special `30,000/-
Diet
2. Permanent Disability ` 2,98,944/-
3. Loss of Income ` 51,150/-
4. Pain & Suffering, Loss of Amenities of Life, ` 30,000/-
Mental Shock & Pain
Total ` 4,10,094/-
Rounded off ` 4,10,100/-
4. The following contentions are raised on behalf of the Appellants:-
(i) There was no negligence on the part of the driver of the DTC bus.
The accident was caused on account of the sole negligence of TSR
driver who collided with the rear of the bus. In any case, it was a
case of composite negligence on the part of the drivers of the two
vehicles involved in the accident.
(ii) The compensation awarded is excessive and exorbitant. The First
Respondent was working as a Teacher in Kulachi Hansraj Model
School. Her income was not affected on account of the injuries
suffered in the accident, rather the same increased in due course.
The Claims Tribunal ought not to have awarded her any
compensation on account of loss of earning capacity.
NEGLIGENCE
5. Elaborating his arguments, the learned counsel for the Appellants urges
that FIR No.334/1996 was recorded on the basis of the First Respondent's
statement recorded by the police. The First Respondent attributed the
negligence only on the part of TSR driver. Her claim in the Petition that
the accident was caused on account of rash and negligence of the DTC
bus driver was an afterthought to claim compensation from the DTC.
6. It is pleaded that the driver of the DTC examined himself as RW-1 and
deposed about the manner of the accident.
7. On the other hand, the TSR driver was not produced by the First
Respondent. Thus, argues the learned counsel, the Claims Tribunal fell
into error in returning the finding on negligence against the Appellant's
driver.
8. In the Claim Petition it was categorically stated that the DTC bus No.DL-
1P-9234 came from behind at a very fast speed and overtook the auto
rickshaw. It was stated that the driver of the DTC bus suddenly applied
the brakes after overtaking the TSR.
9. A joint written statement was filed by the Appellant and its driver
Joginder Singh wherein it was stated that the TSR driver was solely
negligent as he hit against a stationary DTC bus.
10. The First Respondent entered the witness box as PW-6 and testified to the
version stated in the Claim Petition. In cross-examination, the First
Respondent stuck to her guns that the accident took place as the DTC bus
stopped abruptly after overtaking the TSR. No suggestion was given to
PW-6 that the bus did not overtake the TSR.
11. Joginder Singh, driver of the DTC bus entered the witness box as RW-1.
He stated that on 30.04.1996 he took out the bus from Mayapuri Depot at
4:30 A.M. for going to Najafgarh. At about 5:00 A.M. he reached
Tatarpur bus stand. He stopped the bus on getting a signal from a staff
member for boarding the bus. In the meanwhile, a TSR came from
behind and hit against the bus. In cross-examination, the DTC bus driver
deposed that within half a second on stopping the bus, it was hit by a
TSR. Thus, the DTC bus driver's testimony corroborates the First
Respondent's version at least to the extent that the DTC bus had stopped
abruptly. It is clear from the driver's (RW-1's) testimony that a staff
member of the DTC gave a signal, the driver stopped the bus and within
half a second, the TSR collided against the bus.
12. It is noteworthy that this accident took place at 5:00 A.M. when the roads
are comparatively clear. The TSR driver could not have possibly stopped
the same on time even if this was being driven at a moderate speed, if all
of a sudden a heavy vehicle stops in the middle of the road. Thus,
negligence on the part of the bus driver was writ large. The finding
reached by the Claims Tribunal cannot be faulted. Even if, it is assumed
that there was composite negligence, the First Respondent was at liberty
to seek compensation from either of the tortfeasors. (See: T.O. Anthony v.
Karvarnan & Ors., (2008) 3 SCC 748).
13. Thus, the DTC was rightly held liable to pay the compensation.
QUANTUM OF COMPENSATION
14. Section 168 of the Motor Vehicles Act, 1988 (the Act) enjoins just
compensation. 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."
15. It is urged by the learned counsel for the Appellants that the First
Respondent is alleged to have suffered 15% disability in respect of her
right lower limb on account of stiffness and slight limp. This disability
did not affect the First Respondent's earning capacity. She was employed
as a Teacher with Kulachi Hansraj Model School and was getting a salary
of about `3500/- per month at the time of the accident. In the year 2004
when the statement of PW-5 (the employee of the school) was recorded
he proved salary slip Ex.PW-5/5 to show that she was getting a salary of
over `12,000/- per month. It is urged that the First Respondent did not
suffer any functional disability resulting into loss of earning capacity.
16. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme
Court brought out difference between permanent disability and functional
disability resulting into loss of earning capacity. The Supreme Court
observed that unless a person suffers functional disability, he would not
be entitled to any compensation. 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 terms 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."
17. Since the First Respondent did not suffer any functional disability, in
view of the ratio of Raj Kumar she is not entitled to any compensation on
account of loss of earning capacity.
18. It is urged by the learned counsel for the Appellants that the First
Respondent after this accident met with another accident on 03.02.1997.
It is not known whether the permanent disability was on account of the
injuries suffered in that accident. As stated earlier, immediately after the
accident the First Respondent was admitted to DDU hospital. She was
found to have suffered comminuted fracture Patella right with fracture
clavicle right and fracture shaft femur right apart from injuries on various
parts of her body. She had not recovered from the injuries by the time the
second accident took place after nine months. Thus, it is evident that the
injuries suffered were severe and serious. The First Respondent remained
admitted in the hospital from 03.04.1996 to 23.05.1996. She took
physiotherapy from Dr. N.C. Joshi Memorial Hospital. She suffered
second accident because she was unable to move on account of the
injuries already suffered by her in the right leg/knee.
19. The First Respondent remained under treatment for about 1½ years.
Initially, she remained admitted in DDU hospital for one month and 20
days. She continuously took physiotherapy from Dr. N.C. Joshi Memorial
Hospital for a period of about one year. She needed an attendant during
her admission in the hospital and thereafter to be taken to the hospital for
physiotherapy.
20. The minimum wages of an unskilled worker in the year 1996 were
`1677/- per month. Thus, I would award a compensation of ` 20,124/-
(1677/- x 12) towards Attendant charges for one year. I further award a
sum of `20,000/- each towards special diet and conveyance.
21. It is difficult to measure in terms of money the pain and suffering which
is suffered by the claimant on account of serious injuries caused to her 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.
22. Considering the facts and circumstances of the case, period of
hospitalization and surgery underwent, I award a sum of `40,000/-
towards pain and suffering.
23. The First Respondent is further entitled to a sum of `40,000/- towards
loss of amenities and expectations in life.
24. The compensation awarded is re-computed as under:-
Sl. Compensation under various heads Awarded by
No. this Court
1. Attendant Charges ` 20,124/-
2. Special Diet ` 20,000/-
3. Conveyance ` 20,000/-
4. Pain and Suffering ` 40,000/-
5. Loss of Amenities and Loss of Expectation in ` 40,000/-
life.
6. Medical Expenses (as awarded by the Claims `30,000/-
Tribunal)
7. Loss of Income (as awarded by the Claims ` 51,150/-
Tribunal)
Total ` 2,21,274/-
25. Thus the compensation stands reduced from `4,10,100/- to `2,21,274/-
which shall carry interest @ 7.5% per annum from the date of filing of
the Petition till its payment.
26. By an order dated 11.07.2005, on deposit of the award amount along with
interest, 50% thereof was ordered to be released in favour of the First
Respondent. Rest of the compensation was ordered to be kept in fixed
deposit with a nationalized bank. Thus, a principal sum of `2,05,050/-
was released to the First Respondent. Remaining amount of `16,224/-
along with proportionate interest shall be released in favour of
Respondent No.1. Rest of the amount deposited along with proportionate
interest and the interest accrued, if any, during the pendency of the
Appeal shall be refunded to the Appellant Insurance Company.
27. The Appeal is allowed in above terms.
28. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant.
29. Pending Applications stands disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 22, 2012
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