Delhi High Court
Shankar Paswan vs Shyam Lal & Ors. on 17 September, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th September, 2012
+ MAC. APP. 833/2011
SHANKAR PASWAN ..... Appellant
Through: Mr. S.N. Parashar, Adv.
versus
SHYAM LAL & ORS. ..... Respondents
Through Mr. J.P.N. Shahi, 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 `8,88,999.88P/-
awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in
favour of the Appellant for having suffered injuries resulting in
permanent disability to the extent of 85%.
2. On appreciation of evidence, the Claims Tribunal found that the accident
was caused on account of rash and negligent driving of bus No.DL-1PA-
4935 by the First Respondent. While dealing with the quantum of
compensation, the Claims Tribunal dealt with the various heads and
awarded a compensation which is tabulated hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Loss of Income `39,262.80/-
2. Loss of Earning Capacity due to Disability ` 5,33,974.08/-
3. Medicines & Medical Treatment ` 1,35,763/-
4. Pain and Suffering ` 50,000/-
5. Loss of Marriage Prospects ` 50,000/-
6. Conveyance, Special Diet & Attendant ` 30,000/-
7. Loss of Amenities of Life ` 50,000/-
Total ` 8,88,999.88P/-
3. In the absence of any Appeal by the driver, owner or the Insurer, the
finding on negligence has attained finality.
4. The following contentions are raised on behalf of the Appellant:-
(i) On account of the disability suffered by the Appellant he was
entitled to compensation on the basis of 100% loss of earning
capacity with addition of 30% on account of inflation on the basis
of Supreme Court report in Santosh Devi v. National Insurance
Company Ltd. & Ors., 2012 (4) SCALE 559.
(ii) No compensation was awarded to the Appellant towards Attendant
Charges although, it was established that the Appellant would be
unable to move of his own.
(iii) The compensation awarded towards non pecuniary damages and
towards conveyance and special diet is on the lower side.
5. Section 168 of the Motor Vehicles Act, 1988 (the Act) enjoins a Claims
Tribunal to determine the amount of compensation which is just and
reasonable.
6. 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. The trend of the 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 and 6 of the report
are 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."
8. In Kavita v. Deepak & Ors., Civil Appeal No.5945/2012 decided on
22.08.2012, the Supreme Court laid down that an attempt should always
be made to award adequate compensation not only for physical injury and
treatment but also for the loss of earning and inability to lead a normal
life and enjoy the amenities, which would have been enjoyed but for the
disability caused due to the accident.
LOSS OF EARNING CAPACITY
9. While dealing with the question of loss of earning capacity due to
disability, the Claims Tribunal held as under:-
"49. The petitioner has produced the permanent disability
certificate, Ex.PW1/27 which shows that he has 85 % disability to
substantiate his claim. This certificate has not been disputed by the
respondents. PW4 has also deposed that the petitioner has suffered
post accidental deformity of both lower limbs, not able to stand,
right eye corneal opacity with thysis bulbil and will always need
and attendant.
50. In the judgment reported as New India Assurance Company
Limited v. Shanti Pathak, III (2007) ACC 505 (SC), it was held that
the multiplier to be adopted is to be determined on the basis of the
age of the claimant. As the age of the petitioner at the time of
accident was 32 at the time of accident, the appropriate multiplier
should be 16. Therefore, the total compensation to be awarded
under this heading is the annual income multiplied by the
appropriate multiplier multiplied by the percentage of disability.
51. Accordingly, the compensation is Rs.3,271.90 x 12 x 17 x 85 %
which totals to Rs.5,33,974.08 is awarded under this head."
10. I have before me the testimony of Dr. Rajesh Kumar Singh, PW-4 who
apart from deposing about the Appellant's disability, testified that on
account of the deformity of both the lower limbs, the Appellant will not
be able to stand. Thus, it is evident that the Appellant is unable to carry
out any work at all.
11. 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."
12. Thus, in the instant case, the Appellant is entitled to compensation on the
basis of 100% loss of earning capacity and an addition of 30% on account
of inflation on the basis of Supreme Court judgment in Santosh Devi v.
National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559. The loss
of earning capacity comes to `8,26,675/- (`3312/- + 30% x 12 x 16) as
against a compensation of `5,33,974.08P awarded by the Claims
Tribunal.
ATTENDANT CHARGES
13. I have observed earlier that the Appellant is unable to stand of his own.
Thus, he would always need assistance of an Attendant to carry out his
day to day activities.
14. 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 family
members for the benefit of the tortfeasor. In the circumstances, I award a
compensation of ` 1,000/- per month towards Attendant charges. On
applying the multiplier of 16, the Attendant Charges comes to `1,92,000/-
(`1000/- x 12 x 16).
15. Immediately after the accident, the Appellant was removed to Safdarjung
Hospital with fracture of pelvis and fracture of sit bone right. He
underwent successive surgeries. After his admission in the hospital, skin
grafting with external fixator was done. The external fixator was removed
on 11.08.2006 by another surgery. Thereafter, the Appellant remained
under treatment of Dr. Anand Shanker in Life Line Nursing Home, Gaya.
Taking into account the period of hospitalization and the long duration of
the treatment, the compensation of `50,000/- awarded towards pain and
suffering was on the lower side, the same is enhanced to `75,000/-.
16. The Claims Tribunal awarded compensation of `30,000/- towards
conveyance, special diet and Attendant charges. I have already
hereinabove awarded a compensation of `1,92,000/- towards the
Attendant Charges. I would make a provision of `15,000/- each towards
special diet and conveyance.
17. The Claims Tribunal awarded a sum of `50,000/- towards loss of
amenities in life and `50,000/- towards loss of marriage prospects. In Raj
Kumar it was held as under:-
"15. It may be noted that when compensation is awarded by
treating the loss of future earning capacity as 100% (or even
anything more than 50%), the need to award compensation
separately under the head of loss of amenities or loss of
expectation of life may disappear and as a result, only a token or
nominal amount may have to be awarded under the head of loss of
amenities or loss of expectation of life, as otherwise there may be a
duplication in the award of compensation. Be that as it may."
18. In the circumstances, the award of `50,000/- awarded towards loss of
amenities is reduced to `25,000/- and the compensation of `50,000/-
awarded towards marriage prospects is enhanced to `75,000/-.
19. Since the Appellant has been granted compensation towards loss of
earning capacity to the extent of 100%, the compensation of `39,262.80P
(there is some clerical mistake) awarded towards loss of income for the
period of three months would be duplication in the award. The same is
therefore excluded from the total amount of compensation.
20. The compensation awarded is re-computed as under:-
Sl.No. Compensation under various heads Awarded by
this Court
1. Loss of Earning Capacity due to Disability `8,26,675/-
2. Medicines & Medical Treatment ` 1,35,763/-
3. Pain and Suffering `75,000/-
4. Loss of Marriage Prospects ` 75,000/-
5. Loss of Amenities of Life ` 25,000/-
6. Attendant Charges `1,92,000/-
7. Special Diet `15,000/-
8. Conveyance `15,000/-
Total ` 13,59,438/-
21. The overall compensation is thus enhanced from `8,88,999.88P/- to
`13,59,438/-.
22. The enhanced compensation of ` 4,70,438.12P/- shall carry interest @
7.5% per annum from the date of filing of the Petition till its payment.
23. The enhanced compensation along with interest shall be deposited with
the UCO Bank, Delhi High Court Branch, New Delhi within six weeks in
the name of the Appellant.
24. Eighty percent of the enhanced compensation shall be held in fixed
deposit for a period of three years, six years, nine years, twelve years and
fifteen years in equal proportion. Rest 20% shall be released on deposit.
25. The Appeal is allowed in above terms.
26. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 17, 2012
vk
