Delhi High Court
New India Assurance Company Ltd vs Deepak Kumar & Ors. on 10 October, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th October, 2012
+ MAC. APP. 675/2011
NEW INDIA ASSURANCE COMPANY LTD. ..... Appellant
Through: Mr. K.L.Nandwani, Adv.
versus
DEEPAK KUMAR & ORS. .... Respondents
Through Mr. K.K. Dubey, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Company Limited impugns a
judgment dated 03.05.2011 passed by the Motor Accident Claims
Tribunal (the Claims Tribunal) in MACT Suit No.541/09/2008 whereby a
compensation of `4,66,800/- was awarded in favour of the First
Respondent for having suffered injuries in a motor vehicle accident which
occurred on 19.08.2008.
2. On 19.08.2008 at about 8:30 A.M. the First Respondent was proceeding
to his place of work at Gandhi Nagar. When the First Respondent
reached near 4th Pusta, Pusta Road, Usmanpur, Delhi a TSR was
proceeding ahead of him. The said TSR suddenly applied the brakes. He
(the First Respondent) therefore stopped his bicycle and got dis-balanced.
In the meanwhile, a RTV No.DL-IV-7976 which was driven by the
Second Respondent in a rash and negligent manner came from behind
and ran over his right leg. The First Respondent suffered crush injury on
his right foot. He was immediately removed to GTB hospital where he
remained admitted from 19.08.2008 to 25.08.2008. An external fixator
was applied on 20.08.2008. He (the First Respondent) remained under
treatment for nine months.
3. The First Respondent claimed that he spent a sum of `50,000/- towards
his treatment. He proved some of the bills Exs.PW-1/9 to PW-1/18. He
deposed that rest of the bills were misplaced. He could not attend to his
work for a period of about one year and suffered loss of income @
`6,000/- per month.
4. On account of the injuries, the First Respondent suffered 44% permanent
locomotor impairment in relation to his right lower limb as stated in
disability certificate Ex.PW-1/19, which was issued by the Medical Board
of GTB hospital on the directions of the Claims Tribunal.
5. The Claims Tribunal awarded compensation of `4,66,800/- which is
tabulated hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Future Earning Capacity `2,18,800/-
2. Medical Expenses ` 6924/-
3. Special Diet `5,000/-
4. Attendant Charges `9,000/-
5. Conveyance Charges `7,000/-
6. Pain and Suffering `50,000/-
7. Loss of Amenities of Life ` 1,00,000/-
8. Loss of Marriage Prospects ` 20,000/-
9. Permanent Disability `50,000/-
Total ` 4,66,724/-
Rounded off ` 4,66,800/-
6. The following contentions are raised on behalf of the Appellant:-
(i) There was contributory negligence on the part of the First
Respondent. The compensation awarded is liable to be
proportionately deducted.
(ii) The Disability certificate has not been proved and loss of earning
capacity has been wrongly assessed.
NEGLIGENCE
7. The First Respondent in his Affidavit Ex.PW-1/X testified that on
19.08.2008 at about 8:30 A.M. while riding on his cycle he reached 4th
Pusta, Pusta Road, Usmanpur, he had to stop his bicycle on account of the
sudden stoppage of the TSR going ahead of him. He was ran over by a
speeding RTV No.DL-IV-7976 driven by the Second Respondent in a
rash and negligent manner. In cross-examination, the manner of the
accident was not disputed. The First Respondent denied the suggestion
that he suffered injuries as he had fallen down because of sudden
application of brakes by the TSR. A criminal case bearing FIR
No.190/2008, Police Station New Usmanpur was registered against the
Second Respondent. The Second Respondent did not come forward to
rebut the First Respondent's testimony. In the circumstances, an
inference of culpable negligence can be drawn against the Second
Respondent on the touchstone of preponderance of probability.
8. In Bimla Devi and Ors. v. Himachal Road Transport Corporation and
Ors., (2009) 13 SC 530, while holding that in a petition under Section 166
of the Act for award of compensation, the negligence has to be proved on
the touchstone of preponderance of probability, in para 15, it was
observed as under:-
"15. In a situation of this nature, the Tribunal has rightly taken a
holistic view of the matter. It was necessary to be borne in mind
that strict proof of an accident caused by a particular bus in a
particular manner may not be possible to be done by the claimants.
The claimants were merely to establish their case on the
touchstone of preponderance of probability. The standard of proof
beyond reasonable doubt could not have been applied. For the
said purpose, the High Court should have taken into consideration
the respective stories set forth by both the parties."
9. The observations of the Supreme Court in Bimla Devi (supra) were
referred with approval in later judgment in Parmeshwari Devi v. Amir
Chand and Ors., (2011) 11 SCC 635.
10. Thus, negligence is amply proved for the purpose of a Claim Petition
under Section 166 of the Motor Vehicles Act, 1988 (the Act).
QUANTUM
11. Coming to the quantum of compensation, the First Respondent claimed
that he was working in a cloth merchant's shop and getting a salary of
`6,000/- per month. The First Respondent had studied upto 9 th standard.
Even if, no evidence was adduced with regard to First Respondent's
income, the Minimum Wages of a non-Matriculate should have been
taken to compute the loss of income and the loss of earning capacity.
12. I have before me the Trial Court Record which shows that by order dated
15.10.2009 a direction was issued to the Medical Superintendent, GTB
Hospital to constitute a Medical Board and to examine the First
Respondent and to report about the disability, if any suffered by him (the
First Respondent). In pursuance to the said directions, a disability
certificate Ex.PW-1/19 was issued by the Medical Board headed by Dr.
U.C. Verma, Medical Superintendent, GTB Hospital. The Medical Board
declared that the First Respondent suffered 44% locomotor impairment in
relation to his right lower limb. Thus, there is no ground to suspect the
genuineness of the disability certificate. At the same time, the First
Respondent did not produce any expert evidence to show as to how 44%
permanent locomotor impairment in relation to his right lower limb
affected his earning capacity.
13. The First Respondent was content to state in his Affidavit that his entire
career and future has been jeopardized on account of the injuries suffered
in the accident and he would suffer from it throughout his life.
14. 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 First Respondent would have difficulty in
moving, walking, climbing and sitting which would definitely affect his
earning capacity.
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 specific evidence with regard to the exact functional
disability, I would take the functional disability to the extent of 22%
affecting the loss of First Respondent's earning capacity who admittedly
was a non-Matriculate and a Manual worker. The First Respondent
would be entitled to an addition of 30% only as against 50% granted by
the Claims Tribunal on the basis of the judgment of the Supreme Court in
Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4)
SCALE 559.
17. The loss of earning capacity thus comes to `2,39,382/- (3875/- + 30% x
12 x 18 x 22%).
18. The First Respondent claimed that he spent a sum of `50,000/- towards
his treatment. He was able to produce bills for `6,924/-. He deposed that
rest of the bills were misplaced. The Claims Tribunal in the absence of
any explanation for loss of some of the bills awarded a compensation of
`6,924/- only. I have no material to disturb this finding of the Claims
Tribunal.
19. The First Respondent's testimony that he was under treatment for a
period of about nine months was not challenged in the cross-examination.
Thus, the First Respondent would be entitled to a sum of `34,875/-
(3975/- x 9), towards loss of Income.
20. It is urged by the learned counsel for the Appellant that a sum of
`1,00,000/- awarded towards loss of amenities and `20,000/- awarded
towards marriage prospects is on the higher side.
21. 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 in its
discretion awarded a total sum of `1,20,000/- under this head, which
cannot be said to be exorbitant or excessive.
22. The Claims Tribunal awarded compensation of `50,000/- towards
permanent disability. The same is duplication of award of compensation
as he has already been granted compensation towards loss of earning
capacity and loss of amenities. There was no necessity for awarding
another sum of `50,000/- towards permanent disability.
23. The compensation awarded is re-computed as under:-
Sl. Compensation under various Awarded by Awarded
heads the Claims by this
No. Tribunal Court
1. Future Earning Capacity `2,18,800/- `2,39,382/-
2. Medical Expenses ` 6924/- ` 6,924/-
3. Special Diet `5,000/- `5,000/-
4. Attendant Charges `9,000/- `9,000/-
5. Conveyance Charges `7,000/- `7,000/-
6. Pain and Suffering `50,000/- `50,000/-
7. Loss of Amenities of Life ` 1,00,000/- ` 1,00,000/-
8. Loss of Marriage Prospects ` 20,000/- ` 20,000/-
9. Permanent Disability `50,000/- O--
10. Loss of Income -- ` 34,875/-
Total ` 4,66,724/- ` 4,72,181/-
Rounded off ` 4,66,800/-
24. The overall compensation of `4,66,800/- awarded by the Claims Tribunal
cannot be said to be niggardly. The same is just and reasonable.
25. The Appeal, therefore, has to fail; the same is accordingly dismissed.
26. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company.
27. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
OCTOBER 10, 2012
vk
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 675/2011
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Ms.Shivali Bansal, Advocate
versus
DEEPAK KUMAR & ORS ..... Respondent
Through: Mr.K.K.Dubey, Advocate for R-1
CORAM:
HON'BLE MR. JUSTICE G.P. MITTAL
ORDER
% 14.12.2012
CM APPL.20793/2012
1. There is a clerical mistake in para 24 of the judgment dated 10.10.2012.
The overall compensation of Rs. 4,66,800/- awarded by the Claims
Tribunal cannot be said to be excessive. The same is just and reasonable.
2. After correct, Para 24 of the judgment dated 10.10.2012, shall be read as
under:-
"24. The overall compensation of `4,66,800/- awarded by the
Claims Tribunal cannot be said to be excessive. The same is just
and reasonable."
3. The amount of compensation deposited by the Appellant Insurance
Company shall be released in favour of the Respondents (Claimants) in
terms of the order passed by the Claims Tribunal.
4. The Application stands disposed of.
G.P. MITTAL, J
DECEMBER 14, 2012
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