Delhi High Court
Mohd Kashim @ Salman vs Anil Kumar & Ors. on 30 November, 2012
Author: G.P. Mittal
$ 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th November, 2012
+ MAC. APP. 1041/2011
MOHD KASHIM @ SALMAN ..... Appellant
Through: Mr. Navneet Goyal with Ms. Suman N.
Rawat, Advocates.
Versus
ANIL KUMAR & ORS. ..... Respondents
Through: Mr. D.K. Sharma with Mr. Neeraj
Sharma, Advocates 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 `2,40,216/- awarded
by the Motor Accident Claims Tribunal(the Claims Tribunal)in favour of
the Appellant for having suffered grievous injuries in a motor vehicle
accident which occurred on 23.12.2005.
2. In the absence of any Appeal by the driver, owner or the Insurance
Company, the finding of negligence has attained finality.
3. The Appellant who was aged about 14 years at the time of the accident
suffered crush injury on his left leg. Immediately after the accident, he
was removed to Jeevan Hospital, Modi Nagar, Ghaziabad where he
remained admitted from 23.12.2005 to 03.01.2006. The Appellant
remained under treatment for about a year in GTB Hospital, Shahdara and
then in Swami Dayanand Hospital, Shandara (Exs.PW3/2 to Exs.
PW3/23). The Appellant suffered permanent disability to the extent of
41% locomotor impairment in respect of his left lower limb as per the
disability certificate Ex.PW3/68 issued by the Medical Board of GTB
Hospital. The Claims Tribunal awarded a compensation of `2,40,216/-
along with interest @ 7.5% per annum, which is tabulated hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Pain & Suffering `50,000/-
2. Loss of amenities, ` 50,000/-
enjoyment and
disfiguration
3. Loss of Earning Capacity ` 56,250/-
4. Loss of Marriage ` 45,000/-
Prospects
5. Special Diet and ` 10,000/-
Conveyance
6. Expenses towards R` 28,966/-
Medical Bills
Total ` 2,40,216/-
4. The following contentions are raised on behalf of the Appellant:
(i) The Appellant was working as a book binder and earning a
salary of `6,280/- per month. The Claims Tribunal erred in
granting him future loss of earning capacity on notional income
of `15,000/-.
(ii) The compensation towards pain and suffering and loss of
amenities and loss of marriage prospects is on the lower side.
(iii) The lumpsum compensation of `10,000/- awarded towards
special diet and conveyance is very low.
5. On the other hand, the learned counsel for Respondent Insurance
Company argues that the Claims Tribunal had rightly disbelieved the
salary certificate Ex.PW3/69 filed by the Appellant. Since the Appellant
was aged 14 years, the Claims Tribunal rightly granted compensation on
the basis of notional income of `15,000/- per month.
LOSS OF EARNING CAPACITY:
6. In personal injury cases, the trend of the Claims Tribunals and 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 of the report is 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.
7. As per the Appellant's case, he was aged 14 years at the time of the
accident. In his cross-examination recorded on 03.11.2010, the Appellant
deposed that he was working with his employer (as book binder) for a
period of 7-8 years before the accident. This would mean that the
Appellant was working with M/s. Malik Book Binder since he was aged
6-7 years. The Claims Tribunal also found other infirmities in the
Appellant's claim that he was working as a book binder. Thus, the
Claims Tribunal rightly discarded the salary certificate Ex.PW3/69, but at
the same time, it has to be borne in mind that the Appellant was to grow
in age and was to work. He would have worked at least as an unskilled
worker and earned appropriate wages for the same. Thus, the Claims
Tribunal ought to have taken into consideration the minimum wages of an
unskilled worker to award compensation towards loss of earning capacity.
Moreover, the Appellant would also be entitled to an addition of 30% in
the minimum wages on the basis of the Report of the Supreme Court in
Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4)
SCALE 559.
8. As per the disability certificate, the Appellant suffered locomotor
impairment in respect of his left lower limb to the extent of 41%. The
locomotor disability is a person's inability to execute distinctive activities
associated with moving himself and moving the objects from place to
place. Thus, the Appellant would have difficulty in moving, walking,
climbing and sitting which would definitely affect his earning capacity.
9. At the same time, no expert evidence has been produced by the Appellant
to show the exact loss of earning capacity. The Claims Tribunal made an
assessment that the 41% locomotor impairment would result in about
25% loss of earning capacity. I would agree with the assessment made by
the Claims Tribunal and would award him a compensation of `2,22,183/-
( `3165/- + 30% x 12 x 18 x 25%) towards loss of future earning capacity
as against an award of `56,250/- granted by the Claims Tribunal.
PAIN AND SUFFERING, LOSS OF AMENITIES, LOSS OF MARRIAGE
PROSPECTS:
10. 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.
11. I have before me the Trial Court record. As stated earlier, immediately
after the accident, the Appellant was removed to Jeevan Hospital, Modi
Nagar, Ghaziabad where debridement of the wound was done. He was
discharged from the Hospital on 31.01.2006, that is, after ten days.
There are OPD slips Ex.PW3/2 to Ex.PW3/17 which show that the
Appellant was constantly visiting Guru Teg Bahadur Hospital. He had
healed ulcer which was not improving in spite of repeated antibiotics.
For full one year(year 2006), the Appellant remained under treatment in
Guru Teg Bahadur Hospital. Then in the year 2009-2010, he was again
under treatment in Swami Dayanand Hospital, Shahdara and GTB
Hospital. It is difficult to imagine pain and suffering suffered by the
Appellant on account of the continued ulcer with pus and locomotor
impairment. In the circumstances, I would enhance the compensation
awarded towards pain and suffering from `50,000/- to `1,00,000/-, for
loss of amenities from `50,000/- to `75,000/- and for loss of marriage
prospects from `45,000/- to `75,000/-.
12. Similarly, a lumpsum compensation of `10,000/- towards special diet
and conveyance is raised to `20,000/- each because of long duration of
treatment and continuous follow-up in GTB Hospital, Swami Dayanand
Hospital.
13. The compensation awarded is recomputed hereunder:
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Pain & Suffering `50,000/- `1,00,000/-
2. Loss of amenities, ` 50,000/- `75,000/-
enjoyment and
disfiguration
3. Loss of Earning Capacity ` 56,250/- `2,22,183/-
4. Loss of Marriage ` 45,000/- `75,000/-
Prospects
5. Special Diet and ` 10,000/- `40,000/-
Conveyance (`20,000/-
each)
6. Expenses towards ` 28,966/- ` 28,966/-
Medical Bills
Total ` 2,40,216/- ` 5,41,149/-
14. The enhanced compensation of `3,00,933/- shall carry interest @ 7.5%
per annum from the date of filing of the Petition till its deposit. 75% of
the compensation shall be held in fixed deposit in a nationalized bank as
per choice of the Appellant for a period of five years and ten years in
equal proportion on which the Appellant shall be entitled to quarterly
interest. Rest of the amount shall be released to him on deposit.
15. The Respondent No.3 Insurance Company is directed to deposit the
enhanced amount of `3,00,933/- along with interest with the Claims
Tribunal within six weeks.
16. The Appeal is allowed in above terms.
17. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 30, 2012
pst
