Delhi High Court
United India Insurance Company ... vs Babita & Ors. on 9 October, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th October, 2012
+ MAC. APP. 967/2011
UNITED INDIA INSURANCE COMPANY LTD...... Appellant
Through: Mr. Ravinder Nath Zadoo, Adv.
versus
BABITA & ORS. .... Respondents
Through Mr. Anshuman Bal, Adv. for R-1.
+ MAC. APP. 764/2012
BABITA ...... Appellant
Through: Mr. Anshuman Bal, Adv
versus
UNITED INDIA INSURANCE COMPANY LTD & ORS.
.... Respondents
Through: Mr. Ravinder Nath Zadoo, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals arise out of a common judgment dated 05.07.2011
passed by the Motor Accident Claims Tribunal (the Claims Tribunal) in
MACT Suit No.408/2008 whereby a compensation of `3,59,200/- was
awarded in favour of Babita (the Claimant) for having suffered injuries in
a motor vehicle accident which occurred on 18.03.2008.
2. The finding on negligence has not been challenged by the Appellant (the
Insurance Company). Thus, the same has attained finality.
3. Immediately after the accident, the Claimant Babita was removed to GTB
hospital. For lack of appropriate treatment, she was shifted to Safdarjung
Hospital on 18.03.2008 itself, where she remained admitted for 19 days.
The Claimant suffered crush injury on right foot. On the date of the
admission in the Safdarjung Hospital, amputation of the big toe of right
foot was carried out. Debridement was done on 07.04.2008. On
07.07.2008, the Claimant was referred to rehabilitation department of the
hospital for physiotherapy. She could not recover from the injuries fully
and suffered 39% locomotor impairment in relation to her right lower
limb.
4. During inquiry before the Claims Tribunal it was claimed that the
Claimant was in private service and was earning `4,000/- per month. The
Claimant as PW-1 also testified to the same. She also deposed that on
account of the injuries suffered in the accident she was unable to carry
out the household work for a period of about one year and was unable to
pursue her employment. She deposed that she would find it difficult to
carry out the household work because of the permanent disability.
5. The Claims Tribunal, in the absence of any evidence with regard to the
Claimant's employment disbelieved that she was engaged in any private
service. She was taken to a be a housewife and was awarded
compensation taking the value of gratuitous services rendered by a
housewife to be `3,000/- per month. The Claims Tribunal came to the
conclusion that on account of 39% locomotor impairment in relation to
the right lower limb, there would be loss in rendering gratuitous services
to the extent of 20%. The Claims Tribunal, thus awarded a sum of
`1,22,400/- towards the loss of future earning/gratuitous services;
`13,500/- towards loss of earning for 4½ months; `5759/- towards
purchase of medicines and treatment; `7,500/- towards conveyance and
`10,000/- towards special diet. A further sum of `1,50,000/- was awarded
towards pain and suffering and `50,000/- towards loss of expectations of
life.
6. It is urged by the learned counsel for the Appellant Insurance Company
that the compensation awarded is exorbitant and excessive. It was no
where the case of the Claimant that she was a housewife and thus, she
could not have been awarded compensation for loss of gratuitous services
rendered by a housewife. Moreover, deduction of one-third towards
personal and living expenses ought to have been made by the Claims
Tribunal.;
7. It is submitted that the compensation of `1,50,000/- awarded towards
pain and suffering and `50,000/- towards loss of expectations of life is
exorbitant and excessive.
8. On the other hand, learned counsel for the Claimant argues that the
Claimant's testimony that she was unable to carry out household work
was not challenged in cross-examination. The Claims Tribunal rightly
granted compensation for loss of gratuitous services rendered by a
housewife, but at the same time, the Claims Tribunal erred in awarding
the compensation on assuming the value of gratuitous services as
`3,000/- per month which ought to have been awarded on the basis of
minimum wages of non-Matriculate with addition of 25% in view of the
judgment of this Court in Royal Sundaram Alliance Insurance Co. Ltd. v.
Master Manmeet Singh & Ors.; 2012 ACJ 721. It is stated that no
compensation has been awarded towards attendant charges.
9. It is further argued on behalf of the Claimant that there should not be any
deduction towards personal and living expenses as has been held by the
Supreme Court in Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343,
that in case of injured/Claimant with a disability what is calculated is the
future loss of earning of the Claimant payable to him/her and therefore,
there is no need to deduct one-third or any other percentage from out of
the income towards personal and living expenses.
10. The Claimant produced her evidence by way of Affidavit Ex.PW-1/A.
She testified that she was in private service and could not attend to the
same for one year on account of the injuries suffered in the accident. She
stated that she was unable to carry out the household work after the
accident and had to engage a servant and was paying him `2,000/- per
month. As stated earlier, the Claims Tribunal declined to believe the
Claimant's testimony that she was in private service and was earning
`4,000/- per month. A perusal of the Claimant's evidence would reveal
that she did not give any detail of employment, the nature of job carried
out by her and thus, the Claims Tribunal's finding that the Claimant
failed to prove that she was in private service cannot be faulted. The
Claimant also testified that she was unable to carry out the household
work because of the injuries sustained in the accident. Although, the
Claims Tribunal disbelieved the Claimant's version that she had to
engage a servant to carry out the household work, yet the Claimant's
testimony that she was doing household work was not challenged in
cross-examination.
11. Thus, the Claimant was to be awarded compensation for loss of income
for the period in which she could not attend to the work and also towards
the loss of earning on account of the loss of gratuitous services rendered
by a house wife on the principles as laid down in Master Manmeet Singh.
12. In Master Manmeet Singh this Court noticed following judgments of the
Supreme Court:-
(i) General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC
176,
(ii) National Insurance Company Limited v. Deepika & Ors., 2010 (4)
ACJ 2221,
(iii) Amar Singh Thukral v. Sandeed Chhatwal, ILR (2004) 2 Del 1,
(iv) Lata Wadhwa & Ors. v. State of Bihar & Ors., (2001) 8 SCC 197,
(v) Gobald Motor Service Ltd. & Anr. v. R.M.K. Veluswami & Ors.,
AIR 1962 SC 1,
(vi) A. Rajam v. M. Manikya Reddy & Anr., MANU/AP/0303/1988,
(vii) Morris v. Rigby (1966) 110 Sol Jo 834 and
(viii) Regan v. Williamson 1977 ACJ 331 (QBD England),
and laid down the principle for determination of loss of dependency on
account of gratuitous services rendered by a housewife. Para 34 of the
judgment in Master Manmeet Singh (supra) is extracted hereunder:-
"34. To sum up, the loss of dependency on account of gratuitous
services rendered by a housewife shall be:-
(i) Minimum salary of a Graduate where she is a Graduate.
(ii) Minimum salary of a Matriculate where she is a
Matriculate.
(iii) Minimum salary of a non-Matriculate in other cases.
(iv) There will be an addition of 25% in the assumed income in
(i), (ii) and (iii) where the age of the homemaker is upto 40
years; the increase will be restricted to 15% where her age
is above 40 years but less than 50 years; there will not be
any addition in the assumed salary where the age is more
than 50 years.
(v) When the deceased home maker is above 55 years but less
than 60 years; there will be deduction of 25%; and when the
deceased home maker is above 60 years there will be
deduction of 50% in the assumed income as the services
rendered decrease substantially. Normally, the value of
gratuitous services rendered will be NIL (unless there is
evidence to the contrary) when the home maker is above 65
years.
(vi) If a housewife dies issueless, the contribution towards the
gratuitous services is much less, as there are greater
chances of the husband's re-marriage. In such cases, the
loss of dependency shall be 50% of the income as per the
qualification stated in (i), (ii) and (iii) above and addition
and deduction thereon as per (iv) and (v) above.
(vii) There shall not be any deduction towards the personal and
living expenses.
(viii) As an attempt has been made to compensate the loss of
dependency, only a notional sum which may be upto `
25,000/- (on present scale of the money value) towards loss
of love and affection and ` 10,000/- towards loss of
consortium, if the husband is alive, may be awarded.
(ix) Since a homemaker is not working and thus not earning, no
amount should be awarded towards loss of estate."
13. An Appeal being SLP (C) No.19711/2012 filed against the above referred
judgment as ICICI Lombard General Insurance Company Limited v. Shiv
Kumar & Ors., was dismissed by the Supreme Court by an order dated
24.07.2012.
14. The Claimant suffered 39% locomotor impairment in relation to her right
lower limb. PW-2 Dr. Lalit Kumar was examined to prove the disability.
He was unable to say as to what would be the percentage of the disability
in respect of the whole body. He stated that the certificate has been
prepared as per guidelines issued by Ministry of Social Justice and
Empowerment. Thus, no expert evidence was produced by the Claimant
to show as to how the permanent disability would affect the Claimant vis-
à-vis her work as a housewife.
15. 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 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."
16. In the absence of any evidence as to the exact effect on the loss of earning
capacity or working, the Claims Tribunal took 39% locomotor
impairment in relation to the right lower limb to be 20% for loss of
earning capacity. In the circumstances, and in the absence of any other
material, I am not inclined to interfere with the guess work made by the
Claims Tribunal. The loss of earning capacity on the principles of Master
Manmeet Singh thus comes to `1,95,126/- (3826/- + 25% x 12 x 17 x
20%).
17. The Claims Tribunal awarded a sum of `13,500/- as loss of income for
4½ months. I have taken the monthly value of gratuitous services to be
`3826 + 25% =4782/- per month. I would therefore award a sum of
`21,519/- for 4½ months as against a sum of `13,500/- awarded by the
Claims Tribunal.
18. Keeping in view the nature of injuries suffered by the Claimant and the
fact that she remained hospitalized for 19 days and she needed an
Attendant to look after her, the claimant was entitled to attendant charges.
In Delhi Transport Corporation and Anr. v. Lalita AIR 1981 Delhi 558, a
Division Bench of this Court held that a victim cannot be deprived of
compensation towards gratuitous services rendered by some of the family
members, for the benefit of the tortfeasor. In the circumstances, I would
award a sum of `12,000/- @ `3,000/- per month for a period of four
months as compensation towards Attendant charges.
19. The Claims Tribunal awarded a sum of `1,50,000/- towards pain and
suffering. In case of Govind Yadav v. New India Insurance Co. Ltd.
(2011) 10 SCC 683, relied on by the Claims Tribunal 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. Thus, in the instant case, the award of `1,50,000/-
towards pain and suffering is on the higher side; the same is reduced to
`75,000/-.
20. The compensation of `50,000/- awarded towards loss of expectations of
life is treated as compensation towards disfigurement, loss of amenities in
life and loss of expectations of life and is just and reasonable. The same
is accordingly maintained.
21. The Claimant remained as indoor patient for a period of about 19 days
and was a outdoor patient for a period of over four months. The
compensation of `7,500/- awarded towards conveyance charges and
`10,000/- awarded towards special diet is just and reasonable.
22. The compensation awarded is re-computed as under:-
Sl. Compensation under various Awarded by Awarded by
heads the Claims this Court
No. Tribunal
1. Loss of Future Earning `1,22,400/- `1,95,126/-
2. Loss of Earning for 4½ months ` 13,500/- ` 21,519/-
3. Conveyance Charges ` 7,500/- ` 7,500/-
4. Special Diet ` 10,000/- ` 10,000/-
5. Pain and Suffering ` 1,50,000/- ` 75,000/-
6. Loss of Expectation of Life/ ` 50,000/- ` 50,000/-
Disfigurement/Loss of Amenities
7. Medicines ` 5,759/- ` 5,759/-
8. Attendant Charges -- ` 12,000/-
Total ` 3,59,159/- ` 3,76,904/-
Rounded off ` 3,59,200/-
23. The compensation is thus enhanced from `3,59,200/- to `3,76,904/-.
24. The enhanced compensation of ` 17,704/- shall carry interest @ 7.5% per
annum from the date of filing of the petition till its deposit.
25. The Appellant United India Insurance Company Limited is directed to
deposit the enhanced compensation along with interest with the Claims
Tribunal within six weeks, which shall be released in favour of the
Claimant on deposit.
26. Both the Appeals stand disposed of in above terms.
27. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
OCTOBER 09, 2012
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