Delhi High Court
Oriental Insurance Company Ltd vs Arun Kumar & Ors. on 23 November, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd November, 2012
+ MAC.APP. 225/2010
ORIENTAL INSURANCE COMPANY LTD ....... Appellant
Through: Mr. D.K. Sharma, Adv.
versus
ARUN KUMAR & ORS. ..... Respondents
Through: Mr. Munish Kumar Sharma, Adv. for
R-1.
+ MAC.APP. 1216/2012
ARUN KUMAR ....... Appellant
Through: Mr. Munish Kumar Sharma, Adv.
versus
ORIENTAL INSURANCE COMPANY LTD & ORS...... Respondents
Through: Mr. D.K. Sharma, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This Appeal (MAC APP.225/2010) is for reduction of compensation of
`6,70,792/- awarded by the Motor Accident Claims Tribunal (the Claims
Tribunal) in favour of the First Respondent who suffered injuries in a
motor vehicle accident which occurred on 18.12.2005.
2. The finding on negligence reached by the Claims Tribunal is not
challenged by the Appellant Insurance Company. Thus, the same has
attained finality.
3. On account of the accident the First respondent suffered grievous injuries
on his right leg. He remained admitted in the hospital from 19.12.2005 to
20.01.2006. In spite of the best efforts, the First Respondent's right leg
could not be saved and had to be amputated above knee.
4. During inquiry before the Claims Tribunal it was claimed that the
deceased was working as a Fitter with M/s. Lakshmi Engineering Works,
G.T. Road, Shahdara, Delhi-95. No documentary or oral evidence was
produced from the employer with regard to the First Respondent's
employment with M/s. Lakshmi Engineering Works or his salary @
`6,000/- per month. The Claims Tribunal, therefore, took the minimum
wages of a Non Matriculate and computed the loss of future income on
85% loss of earning capacity. The compensation awarded is tabulated
hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Reimbursement on Medical Expenses `15,000/-
2. Loss of Earning ` 33058.90/-
3. Disability ` 5,82,433.26/-
4. Pain and Suffering ` 35,000/-
5. Loss of Amenities of Life ` 35,000/-
Total ` 6,70,792.16/-
5. The following contentions are raised on behalf of the Appellant Insurance
Company:-
(i) First Respondent (the injured) himself contributed to the accident
as there was overloading of the TSR.
(ii) No expert evidence was produced to assess and determine the
functional disability and loss of earning capacity.
(iii) Award of compensation on 85% loss of earning capacity was
excessive and exorbitant.
6. The First Respondent filed Cross Objections which were registered as
MAC APP.1216/2012. The First Respondent took the plea that the
compensation awarded towards non pecuniary damages as also towards
special diet and conveyance and loss of income was on the lower side.
7. For the sake of convenience, the Appellant shall be referred to as the
Insurance Company and the First Respondent as the Claimant.
8. Section 168 of the Motor Vehicles Act, 1988 (the Act) enjoins a Claims
Tribunal to determine the amount of compensation which is just and
reasonable.
9. 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. Of late, the trend of the Superior Courts is to award full and fair
compensation. In the case of Raj Kumar v. Ajay Kumar & Anr., 2011 (1)
SCC 343, the Supreme Court observed that the object of awarding
damages is to make good the loss suffered as a result of the wrong done
as far as money can do in a fair, reasonable and equitable manner. Paras
5 and 6 of the report are extracted hereunder:-
"5. The provision of the Motor Vehicles Act, 1988 ('the Act' for
short) makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately
restore the claimant to the position prior to the accident. The
object of awarding damages is to make good the loss suffered as a
result of wrong done as far as money can do so, in a fair,
reasonable and equitable manner. The court or tribunal shall have
to assess the damages objectively and exclude from consideration
any speculation or fancy, though some conjecture with reference to
the nature of disability and its consequences, is inevitable. A
person is not only to be compensated for the physical injury, but
also for the loss which he suffered as a result of such injury. This
means that he is to be compensated for his inability to lead a full
life, his inability to enjoy those normal amenities which he would
have enjoyed but for the injuries, and his inability to earn as much
as he used to earn or could have earned. [See C.K. Subramonia
Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v.
Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v.
Willoughby, 1970 AC 467.
LOSS OF FUTURE EARNING CAPCAITY
11. It is admitted case of the parties that on account of amputation of right leg
above knee, the Claimant suffered 85% permanent disability in respect of
his right lower limb. The Claims Tribunal took this disability in respect
of right lower limb as 85% loss of earning capacity. A perusal of the
Trial Court reveals that no expert evidence was produced by the Claimant
to prove the loss of earning capacity. The First Respondent (the Claimant)
came up with the case that he was working as a Fitter with M/s. Lakshmi
Engineering Works. As stated above, he (the Claimant) did not produce
any corroborative evidence with regard to is employment. This accident
took place in the year 2005. Even if, the Claimant was working as a
Fitter or was carrying any other menial job, the loss of one limb would
definitely affect the earning capacity.
12. In the absence of any specific evidence in Raj Kumar v. Ajay Kumar &
Anr., 2011 (1) SCC 343, the Supreme Court took 45% disability in
respect of left lower limb as 20% loss of future earning capacity. In the
instant case, I would make a guess work and would take the loss of future
earning capacity as 45% instead of 85% taken by the Claims Tribunal.
13. The Claimant would be entitled to an addition of 30% towards inflation
on the basis of report of the Supreme Court in Santosh Devi v. National
Insurance Company Ltd. & Ors., 2012 (4) SCALE 559. The loss of future
earning capacity thus comes to `4,00743/- (3358/- + 30% x 12 x 17 x
45%) as against `5,82,433.26 awarded by the Claims Tribunal.
LOSS OF INCOME
14. The Claimant suffered grievous injuries. As stated above, he remained
admitted in GTB hospital for over a month. The Claims Tribunal
awarded him one month's wages as loss of income. Considering the
nature of injuries, I would make a provision of loss of income for six
months i.e. `20,148/- (3358/- x 6).
PAIN AND SUFFERING AND LOSS OF AMENITIES IN LIFE
15. In case of Govind Yadav v. New India Insurance Co. Ltd. (2011) 10 SCC
683, in case of amputation of one leg a compensation of `1.5 lacs each
was awarded towards pain and suffering and loss of amenities in life
including the loss of marriage prospects. The Claims Tribunal, however,
awarded a sum of `35,000/- each towards pain and suffering and loss of
amenities in life, which seems to be on the lower side. Considering the
nature of injuries, and relying on Govind Yadav, I would enhance the
same and make a provision of ` `1,50,000/- towards pain and suffering
and `1,50,000/-towards loss of amenities in life.
SPECIAL DIET & CONVEYANCE
16. The Claims Tribunal did not award any compensation towards special
diet and conveyance. The Appellant needed special diet to recover from
the injuries and needed conveyance to visit Hospital. His Attendants also
required conveyance to look after him in the Hospital. Keeping in view
the nature of injuries, I would award compensation of `10,000/- each
towards special diet and conveyance.
17. The compensation awarded is re-computed as under:-
Sl. Compensation under various heads Awarded by
this Court
No.
1. Loss of Future Earning Capacity ` 4,00,743/-
2. Loss of Income for six months `20,148/-
3. Pain and Suffering ` 1,50,000/-
4. Loss of Amenities in Life ` 1,50,000/-
5. Special Diet ` 10,000/-
6. Conveyance ` 10,000/-
7. Medical Expenses (as awarded by the Claims `15,000/-
Tribunal)
Total ` 7,55,891/-
18. The compensation is thus enhanced from `6,70,792/- to `7,55,891/-.
19. The enhanced compensation of `85,099/- shall carry interest @ 7.5% per
annum from the date of filing of the petition till its deposit.
20. Appellant Oriental Insurance Company is directed to deposit the
enhanced compensation along with interest with the Claims Tribunal
within six weeks.
21. Seventy five percent of the enhanced compensation shall be held in fixed
deposit for a period of five years and rest shall be released on deposit.
The Claimant would be entitled to quarterly interest on the amount held
in the fixed deposit.
22. The compensation awarded by the Claims Tribunal shall be released in
terms of the impugned judgment.
23. Both the Appeals are allowed in above terms.
24. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
25. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 23, 2012
vk
