Delhi High Court
Khyali Ram vs Rajender Singh & Ors on 27 November, 2012
Author: G.P. Mittal
$ 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27th November, 2012
+ MAC. APP. 550/2012
KHYALI RAM ..... Appellant
Through: Mr. S.N. Parashar, Advocate.
Versus
RAJENDER SINGH & ORS. ..... Respondents
Through: Mr. J.P.N. Shahi, Advocate for the
Respondent No.3 Insurance Company.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `3,02,000/- awarded
by the Motor Accident Claims Tribunal(the Claims Tribunal) in favour of
the Appellant for having suffered injuries in a motor vehicle accident
which occurred on 22.01.2006.
2. During inquiry before the Claims Tribunal, it was claimed that on
22.01.2006 at about 9:00 pm, the Appellant was hit by a Tata Sumo
No.HR-38-K-6714 which was driven by the First Respondent in a rash
and negligent manner. It was stated that the deceased was working as a
farmer and was earning `6,000/- per month. It was the Appellant's case
that immediately after the accident, he was removed to All India Institute
of Medical Sciences(AIIMS). He was found to have suffered head injury
with Traumatic Subarachnoid Hemorrhage with Soft Tissue injury on
right leg and fracture on neck of fibula right. The Appellant remained
admitted in AIIMS from 23.01.2006 to 28.01.2006. On account of brain
injury, the Appellant suffered Hemiparesis with right facial Nerve Palsy.
He was declared to have suffered 49% injury in relation to his upper right
and lower limb with right side of face.
3. On appreciation of evidence, the Claims Tribunal held that the Appellant
was working as a farmer. In the absence of any proof of his income, the
Claims Tribunal took the minimum wages of a semi-skilled worker to
award loss of earning capacity for six months. The Claims Tribunal held
that although the disability in respect of right upper and lower limb was
49%, yet the functional disability could be taken to be only 30%.
4. The compensation awarded is tabulated hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Medical Expenses `10,000/-
2. Pain & Suffering & ` 30,000/-
Enjoyment of Life
3. Special Diet & ` 25,000/-
Conveyance Charges
4. Loss of Income ` 20,000/-
5. Future Loss of Income ` 1,92,000/-
6. Loss of Amenities R` 25,000/-
Total ` 3,02,000/-
5. The following contentions are raised on behalf of the Appellant:
(i) The Appellant suffered very serious head injury. Since he was
working as a farmer, his working capacity was substantially
affected. The Claims Tribunal erred in reducing the loss of
earning capacity to 30%.
(ii) While awarding loss of future earning capacity, addition of 30%
towards inflation was not made. Reliance is placed on Santosh
Devi v. National Insurance Company Ltd. & Ors., 2012 (4)
SCALE 559.
(iii) The compensation awarded towards pain and suffering and loss
of amenities is on the lower side.
6. On the other hand, the learned counsel for the Respondent Insurance
Company urges that the compensation awarded is just and reasonable and
does not call for any interference.
7. Section 168 of the Act enjoins a Claims Tribunal to determine the amount
of compensation which is just and reasonable. It can neither be a source
of profit nor should it be a pittance. In State of Haryana v. Jasbir Kaur,
(2003) 7 SCC 484, the Supreme Court held as under:
"7. It has to be kept in view that the Tribunal constituted under the
Act as provided in Section 168 is required to make an award
determining the amount of compensation which is to be in the real
sense „damages‟ which in turn appears to it to be „just and
reasonable‟. It has to be borne in mind that compensation for loss
of limbs or life can hardly be weighed in golden scales. But at the
same time it has to be borne in mind that the compensation is not
expected to be a windfall for the victim. Statutory provisions
clearly indicate that the compensation must be „just and it cannot
be a bonanza; not a source of profit; but the same should not be a
pittance. The courts and tribunals have a duty to weigh the
various factors and quantify the amount of compensation, which
should be just. What would be „just‟ compensation is a vexed
question. There can be no golden rule applicable to all cases for
measuring the value of human life or a limb. Measure of damages
cannot be arrived at by precise mathematical calculations. It
would depend upon the particular facts and circumstances, and
attending peculiar or special features, if any. Every method or
mode adopted for assessing compensation has to be considered in
the background of „just‟ compensation which is the pivotal
consideration. Though by use of the expression „which appears to
it to be just‟ a wide discretion is vested in the Tribunal, the
determination has to be rational, to be done by a judicious
approach and not the outcome of whims, wild guesses and
arbitrariness. The expression „just‟ denotes equitability, fairness
and reasonableness, and non-arbitrary. If it is not so it cannot be
just."
8. In Arvind Kumar Mishra v. New India Assurance Company Limited,
(2010) 10 SCC 254, the Supreme Court dealt with the case of disability of
an engineering student. The Supreme Court observed that while
awarding compensation in personal injury cases, an attempt should be
made to put the injured in the same position as he was as far as money is
concerned. In para 9 of the report, the Supreme Court held as under:
"9. We do not intend to review in detail state of authorities in
relation to assessment of all damages for personal injury. Suffice
it to say that the basis of assessment of all damages for personal
injury is compensation. The whole idea is to put the claimant in
the same position as he was insofar as money can. Perfect
compensation is hardly possible but one has to keep in mind that
the victim has done no wrong; he has suffered at the hands of the
wrongdoer and the court must take care to give him full and fair
compensation for that he had suffered."
LOSS OF FUTURE EARNING CAPACITY:
9. 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
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."
10. I have before me the disability certificate Ex.PW1/2 as also the discharge
summary from AIIMS. In the discharge summary, it was stated that "Pt.
will have cognitive defects in view of severe head injury and he has to
follow up in NS-OPD". The disability certificate clearly states that the
Appellant suffered residual right side of hemiparesis with right facial and
Nerve Palsy resulting in 49% permanent physical impairment in respect
of upper and lower limb. The Appellant was working as a farmer and had
to carry out a lot of manual work. In the circumstances, there was no
justification for reducing the loss of earning capacity to 30% when the
impairment in respect of the right upper and lower limb was to the extent
of 49%. I would hold that the Appellant suffered loss of earning capacity
to the extent of 49%.
11. This Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011)
decided on 16.07.2012, referred to the reports of the Supreme Court in
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176,
Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, Bijoy Kumar Dugar v.
Bidya Dhar Dutta & Ors, (2006) 3 SCC 242, Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr, (2009) 6 SCC 121 and Santosh Devi
v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and
held that as per Santosh Devi even in the absence of any evidence as to
future prospects an increase of 30% in the income has to be provided
where the victim had fixed income or was a self employed person.
Relevant portion of Santosh Devi is extracted hereunder:-
"14.....In our view, it will be naive to say that the wages or total
emoluments/income of a person who is self-employed or who is
employed on a fixed salary without provision for annual increment,
etc., would remain the same throughout his life. The rise in the cost
of living affects everyone across the board. It does not make any
distinction between rich and poor. As a matter of fact, the effect of
rise in prices which directly impacts the cost of living is minimal
on the rich and maximum on those who are self- employed or who
get fixed income/emoluments. They are the worst affected people.
Therefore, they put extra efforts to generate additional income
necessary for sustaining their families. The salaries of those
employed under the Central and State Governments and their
agencies/instrumentalities have been revised from time to time to
provide a cushion against the rising prices and provisions have
been made for providing security to the families of the deceased
employees. The salaries of those employed in private sectors have
also increased manifold. Till about two decades ago, nobody could
have imagined that salary of Class IV employee of the Government
would be in five figures and total emoluments of those in higher
echelons of service will cross the figure of rupees one lac.
Although, the wages/income of those employed in unorganized
sectors has not registered a corresponding increase and has not
kept pace with the increase in the salaries of the Government
employees and those employed in private sectors but it cannot be
denied that there has been incremental enhancement in the income
of those who are self-employed and even those engaged on daily
basis, monthly basis or even seasonal basis. We can take judicial
notice of the fact that with a view to meet the challenges posed by
high cost of living, the persons falling in the latter category
periodically increase the cost of their labour. In this context, it
may be useful to give an example of a tailor who earns his
livelihood by stitching cloths. If the cost of living increases and the
prices of essentials go up, it is but natural for him to increase the
cost of his labour. So will be the cases of ordinary skilled and
unskilled labour, like, barber, blacksmith, cobbler, mason etc.
Therefore, we do not think that while making the observations in
the last three lines of paragraph 24 of Sarla Verma‟s judgment, the
Court had intended to lay down an absolute rule that there will be
no addition in the income of a person who is self-employed or who
is paid fixed wages. Rather, it would be reasonable to say that a
person who is self-employed or is engaged on fixed wages will also
get 30 per cent increase in his total income over a period of time
and if he / she becomes victim of accident then the same formula
deserves to be applied for calculating the amount of
compensation."
12. The loss of earning capacity thus comes to `4,07,394/-(`3331/- + 30% x
12 x 16 x 49%).
13. The MLC and the discharge summary shows that the Appellant suffered
traumatic injury on the right leg, fracture on neck of fibula and serious
head injury. He remained admitted in the hospital for five days and was
on ventilator. 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 compensation of `30,000/-
awarded towards pain and suffering is enhanced to `50,000/-.
14. In view of the injuries suffered, the Appellant would have difficulty in
walking, running and squatting throughout his life. The compensation of
`25,000/- awarded towards loss of amenities and expectation of life is on
the lower side. The same is enhanced to `50,000/-.
15. The compensation is tabulated hereunder:
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Medical Expenses `10,000/- `10,000/-
2. Pain & Suffering & ` 30,000/- ` 50,000/-
Enjoyment of Life
3. Special Diet & ` 25,000/- ` 25,000/-
Conveyance Charges
4. Loss of Income ` 20,000/- ` 20,000/-
5. Future Loss of Income ` 1,92,000/- `4,07,394/-
6. Loss of Amenities R` 25,000/- ` 50,000/-
Total ` 3,02,000/- ` 5,62,394/-
16. The enhanced compensation of `2,60,394/- shall carry interest @ 7.5%
per annum as awarded by the Claims Tribunal. 75% of the amount
payable to the Appellant shall be held in fixed deposit for a period of four
years and eight years in equal proportion. Rest 25% shall be released on
deposit.
17. The Respondent No.3 Oriental Insurance Co. Ltd. is directed to deposit
the enhanced amount of `2,60,394/- along with interest with the Claims
Tribunal within six weeks.o
18. The Appeal is allowed in above terms.
19. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 27, 2012
pst
