Delhi High Court
Cholamandalam Ms General ... vs Smt. Joginder Singh & Ors on 15 October, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 15th October, 2012
+ MAC.APP. 738/2011
CHOLAMANDALAM MS GENERAL INSURANCE COMPANY
LTD. ..... Appellant
Through Ms. Suman Bagga, Adv.
versus
SMT. JOGINDER SINGH & ORS ..... Respondents
Through Mr. Bhupesh Narula, Adv.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `10,20,200/- awarded in
favour of the First Respondent for having suffered injuries in a motor
vehicle accident which occurred on 19.02.2010.
2. The finding on negligence is not challenged by the Appellant Insurance
Company; thus, the same has attained finality.
3. The extent of the injuries is described on page 6 of the impugned
judgment which is extracted hereunder:-
".....As per MLC petitioner had suffered injuries on the right leg
(thigh), right hand and chin. Petitioner was admitted in Maharishi
Balmiki Hospital on 20/02/10 discharged on 30/03/10 with
fracture of neck of femur bone of the right leg. Petitioner was
again admitted on 03/07/10 with report of failed fixation of femur
bone (right). Implant was removed, bone graft was carried out on
14/07/10 and petitioner was discharged on 21/07/10. On 30/07/10
DHS removal and screw was carried out. On 28/08/10 it is
reported that the implant was in proper condition but bone had not
united. On 22/09/10 right leg was reoperated, implant removed
and the fracture was reported to have been united. There is no
further treatment record. As per disability certificate Ex. PW1/30
petitioner has suffered 50% permanent disability of the whole body
due to malunion of neck of the femur, stiffness of hip and pain and
shortening of right lower limb......"
4. The Claims Tribunal awarded a compensation of `10,20,200/-, which is
tabulated hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Medical Expenses `34,400/-
2. Special Diet & Conveyance ` 21,000/-
3. Attendant Charges ` 5,000/-
4. Loss of Income ` 35,300/-
5. Loss of Future Income ` 7,24,500/-
6. Pain and Suffering ` 1,00,000/-
7. Loss of Amenities of Life/
Disfigurement and Loss of Expectation of ` 1,00,000/-
Life
Total ` 10,20,200/-
5. The award towards medical expenses, special diet, conveyance and
attendant charges is not disputed. The Appellant Insurance Company
disputes Respondent No.1's income and the extent of disability. It is
urged that the compensation awarded towards loss of income, loss of
future income and the compensation awarded towards non-pecuniary
damages is exorbitant and excessive.
6. During inquiry before the Claims Tribunal, it was claimed that the
deceased was working as a tractor driver at Hissar and was earning
`8,000/- per month. The Claims Tribunal, in the absence of any cogent
evidence with regard to deceased's income took the Minimum Wages of
an unskilled worker applicable in the State of Haryana to compute the
loss of income and the loss of future earning capacity.
7. In his examination-in-chief, the First Respondent testified that he used to
drive a tractor in the fields of various farmers and was earning `8,000/-
per month from the said work at the time of the accident. In cross-
examination, the witness deposed that he used to drive a tractor in the
fields in village Sishana, Sonipat. Normally, he was working daily but he
had no work on certain days. He stated that he was employed with Satbir
Singh, who was owner of the tractor.
8. Admittedly, the First Respondent did not file any documentary evidence
with regard to his income nor did he produce anybody from the fields or
the owner of the fields where he was employed. But, at the same time, it
was not disputed that the First Respondent was working as a tractor
driver. The Minimum Wages of a skilled worker in the State of Haryana
as per the Notification issued by the Haryana Govt. were `187/- per day.
On 26 working days, the same would come to `4862/- per month.
9. Otherwise also, since it was not disputed that the First Respondent was
working as a tractor driver, it would be reasonable to hold that the First
Respondent would be earning at least `5,000/- per month from his
profession as a tractor driver. Thus, the compensation of `35,214/- for
loss of income for seven months cannot be faulted.
10. As far as loss of future income is concerned, the Claims Tribunal granted
loss of earning capacity to the extent of 50% and also made an addition
of 50% on account of inflation.
11. Learned counsel for the Respondent Claimant urges that the loss of
earning capacity should have been taken as 75% as it was proved by the
examination of PW-2 Dr. S.P. Sharma that the First Respondent would
not be able to drive any vehicle in future due to disability. Reliance is
placed on Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343 where in
the loss of earning capacity on account of amputation of the hand of a
driver was taken as 75%.
12. While awarding loss of earning capacity, the Court has to see the
possibility of alternative employment. In the instant case, the injured was
working in the fields. He suffered permanent disability in respect of his
right lower limb on account of malunion of shaft femur with stiffness of
right hip and shortening of his right lower limb. In the circumstances,
considering the chances of alternative employment and the age of the
First Respondent the loss of future earning capacity was rightly taken as
50% by the Claims Tribunal.
13. Admittedly, there was no evidence with regard to the First Respondent's
future prospects. Thus, an addition of 50% in his (the First Respondent's)
income was not justified. In view of the judgment of Santosh Devi v.
National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 an
increase of 30% could have been given on account of inflation.
14. The loss of future earning capacity thus comes to `6,24,000/- (5,000/- +
30% x 12 x 16 x 50%).
15. The Claims Tribunal awarded a compensation of `1,00,000/- towards
pain and suffering and `50,000/- each towards loss of amenities,
disfigurement and loss of expectations in life.
16. Keeping in view the long duration of treatment, successive surgeries
underwent by the First Respondent and the period of recovery and the
fact that there was malunion of fracture of shaft femur and the First
Respondent suffered permanent stiffness in right hip and shortening of his
right lower limb, the compensation of `1,00,000/- awarded towards pain
and suffering and `1,00,000/- (`50,000/- each towards loss of amenities,
disfigurement and loss of expectations in life) seems to be just and
reasonable.
17. The compensation awarded is re-computed as under:-
Sl. Compensation under various Awarded by Awarded by
heads the Claims this Court
No. Tribunal
1. Medical Expenses `34,400/- `34,400/-
2. Special Diet & Conveyance ` 21,000/- ` 21,000/-
3. Attendant Charges ` 5,000/- ` 5,000/-
4. Loss of Income ` 35,300/- ` 35,300/-
5. Loss of Future Income ` 7,24,500/- ` 6,24,000/-
6. Pain and Suffering ` 1,00,000/- ` 1,00,000/-
7. Loss of Amenities of Life/
Disfigurement and Loss of ` 1,00,000/- ` 1,00,000/-
Expectation of Life
Total ` 10,20,200/- ` 9,19,700/-
18. The overall compensation is reduced from `10,20,200/- to ` 9,19,700/-.
19. The excess amount of `1,00,500/- along with proportionate interest and
the interest accrued, if any, during the pendency of the Appeal shall be
refunded to the Appellant Insurance Company.
20. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
21. The compensation awarded shall be payable to the First Respondent in
terms of the order passed by the Claims Tribunal.
22. The Appeal is allowed in above terms.
23. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
OCTOBER 15, 2012
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