Sandeep Mishra vs Vijay Kumar Yadav & Ors
2012 Latest Caselaw 5258 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 4th September, 2012
+       MAC APP. 215/2010

        SANDEEP MISHRA                                     ..... Appellant
                     Through:           Mr. Adv.

                    versus

        VIJAY KUMAR YADAV & ORS.         ..... Respondents
                     Through: Mr. D.K.Sharma, Adv. for R-3.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                                JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appeal is for enhancement of compensation of `1,00,230/- awarded in favour of the Appellant for having suffered injuries in a motor vehicle accident which occurred on 21.12.1998.

2. On 21.12.1998 at about 8:45 A.M. the Appellant was riding his two wheeler No.DL-3SK-0997. When he reached near Kalindi Kunj, Noida turning, truck No.HR-38-3836 being driven in a rash and negligent manner came from behind and hit the two wheeler.

3. The Appellant fell down and suffered grievous injuries. He was removed to AIIMS where he remained admitted from 21.12.1998 to 29.12.1998. The Appellant was working as an officer with M/s. Flex Industries Ltd. He had to take leave from 21.12.1998 to September, 1999. Leave for the period from March, 1999 to September, 1999 was without pay, whereas

he was paid salary for the earlier period. Appellant remained as an outdoor patient in AIIMS and the Kailash Hospital & Research Centre, Noida. He was issued a disability certificate which shows that he (the Appellant) suffered fracture of both bones right leg, fracture right lateral malleolus, fracture right calcaneum, IMN right tibia with ankle stiffness. He was declared to be disabled to the extent of 26% in relation to his right lower limb. The Claims Tribunal as stated earlier awarded a total compensation of ` 1,00,230/- which is tabulated hereunder:-

Sl. Compensation under various heads Awarded by the Claims Tribunal No.

         1.        Treatment Expenses                                          `12,800/-

         2.        Pain and Suffering Etc.                                    ` 30,000/-

         3.        Special Diet                                                ` 1,000/-

         4.        Conveyance                                                  ` 1,000/-

         5.        Loss of Income                                            ` 55,430/-

                                                            Total         ` 1,00,230/-

4. In the absence of any Appeal by the driver, owner or the Insurer, the finding on negligence has attained finality.

5. The following contentions are raised on behalf of the Appellant:-

(i) No compensation was awarded towards the loss of future earning capacity inspite of the fact that the Appellant suffered 26% disability in respect of his right lower limb.

(ii) The Appellant had to take nine months leave out of which only three months were paid leave. No compensation was awarded to him for the loss of leave of six months.

(iii) The Appellant was a young boy, aged 34 years. Because of the disability, he was unable to get any suitable match. No compensation was awarded to him for loss of marriage prospects, loss of amenities in life and disfigurement, etc.

(iv) The compensation awarded towards pain and suffering, special diet and conveyance is meagre.

6. Section 166 of the Motor Vehicles Act, 1988(the Act) enjoins payment of just compensation. In General Manager, Kerala Road Transport Corporation, Trivandrum v. Susamma Thomas & Ors., (1994) 2 SCC 176, the Supreme Court held as under: -

"5......The determination of the quantum must answer what contemporary society "would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing". The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales'. All this means that the sum awarded must be fair and reasonable by accepted legal standards."

7. 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."

8. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka & Ors., (2009) 6 SCC 1, the Supreme Court emphasized that cases of serious injuries in motor vehicle accident are worse than the death cases because the victim and his family suffers throughout life. Para 90 of the report is extracted hereunder:-

"90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."

LOSS OF EARNING CAPACITY:-

9. In order to prove the disability certificate Ex.PW-1/F, the Appellant examined Dr. Shishir Rastogi, Professor Orthopaedics, AIIMS. In cross- examination, a question was put to the witness whether the disability of 26% in respect of the right lower limb would be less than 5% in respect of the whole body. The witness was unable to give any specific reply and stated that the disability had been determined as per the guidelines issued

by the Govt. of India. Unfortunately, no material was elicited from this witness as to the functional disability in relation to his job.

10. 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."

11. The Appellant was working as an officer with M/s. Flex Industries. It is true that the Appellant did not lose his job on account of the injuries suffered by him. At the same time, one cannot be oblivious to the fact that the Appellant suffered multiple fractures, i.e. fracture of both bones right leg, fracture right lateral malleolus, fracture right calcaneum and IMN right tibia with ankle stiffness. It goes without saying that the Appellant would have difficulty in walking and running. His working capacity and efficiency is definitely affected. In the circumstances and in the absence of any specific evidence, I would make a guess work to say that the loss of future earning capacity would be about 10% as against the disability of 26% in respect of the Appellant's right lower limb.

12. The Appellant's salary of `9237/- per month at the time of the accident was established. In the absence of any evidence with regard to his future prospects, the Appellant would be entitled to an addition of 30% on the basis of the Supreme Court report in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559.

13. The loss of future earning capacity would thus come to `2,30,555/-

(9237/- + 30% x 12 x 16 x 10%).

14. It is difficult to measure in terms of money the pain and suffering which is 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.

15. In the instant case, the Appellant suffered multiple fractures in respect of his right lower limb. He had to be operated upon in AIIMS and then remained under treatment as an OPD patient in AIIMS, Kailash Hospital, and Tripathi Hospital. He had to take leave for nine months. The compensation of `30,000/- towards pain and suffering was wholly inadequate. The same is raised to `50,000/-.

LOSS OF INCOME:-

16. The Appellant had to take nine months leave. Even for paid leaves he is entitled to full compensation as he (the Appellant) lost leaves to his credit, which he could have encashed or enjoyed later on. Thus, he is entitled to compensation of `83,133/- (9237/- x 9) instead of `55,430/-.

LOSS OF AMENITIES/DISFIGUREMENT & LOSS OF MARRIAGE PROSPECTS:-

17. The Claims Tribunal awarded a compensation of `30,000/- towards pain and suffering as also towards loss of matrimonial prospects as the Appellant had become lame. The compensation towards pain and

suffering has already been enhanced above. I would make a provision of `50,000/- towards loss of amenities, disfigurement and loss of marriage prospects.

18. The compensation of `1,000/- each awarded towards special diet and conveyance was very low. Keeping in view the prolonged treatment and the nature of injuries, I award a sum of `5,000/- each towards special diet and conveyance.

19. The compensation awarded is re-computed as under:-

Sl. Compensation under various Awarded by Awarded heads the Claims by this No. Tribunal Court

1. Treatment Expenses `12,800/- `12,800/-

2. Pain and Suffering Etc. ` 30,000/- ` 50,000/-

         3.        Special Diet                              ` 1,000/-         ` 5,000/-

         4.        Conveyance                                ` 1,000/-         ` 5,000/-

         5.        Loss of Income                           ` 55,430/-        ` 83,133/-

         6.        Loss of Future Earning Capacity                   --    ` 2,30,555/-

         6.        Loss of Amenities, Disfigurement                  --       ` 50,000/-
                   & Loss of Marriage Prospects

                                              Total       ` 1,00,230/-     ` 4,36,488/-

20. The compensation is thus enhanced from `1,00,230/- to `4,36,488/-.

21. The enhanced compensation of `3,36,258/- shall carry interest @ 7.5% per annum from the date of filing of the petition till its deposit.

22. Respondent No.3 National Insurance Company Limited is directed to deposit the enhanced compensation along with interest in the name of the Appellant with the UCO Bank, Delhi High Court Branch, New Delhi within six weeks.

23. Seventy five percent of the enhanced compensation shall be held in fixed deposit for a period of two years. Rest shall be released to the Appellant on deposit.

24. The Appeal is allowed in above terms.

25. Pending Applications also stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 04, 2012 vk