Delhi High Court
Oriental Insurance Company Ltd. vs Anuj Bajaj & Ors. on 18 September, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th September, 2012
+ MAC.APP. 262/2004
ORIENTAL INSURANCE COMPANY LTD. ...... Appellant
Through: Mr. Ram N. Sharma, Adv.
versus
ANUJ BAJAJ & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for reduction of compensation of `9,84,522/- awarded by
the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of
First Respondent for having suffered injuries in a motor vehicle accident
which occurred on 26.10.1996.
2. The finding on negligence is not challenged by the Appellant Insurance
Company.
3. The compensation awarded is tabulated hereunder:-
Sl.No. Compensation under various heads Awarded by the
Claims
Tribunal
1. Compensation for having suffered 100% `4,05,000/-
permanent disability and loss of future
earning
2. Expenses incurred on Purchase of ` 2,79,522/-
Medicines
3. Expenses Incurred on Conveyance and ` 25,000/-
Special Diet and keeping an Attendant
4. Compensation towards Pain and Sufferings ` 25,000/-
& Loss of Amenities of the Life
5. Compensation towards purchase of ` 2,50,000/-
Artificial Limb
Total ` 9,84,522/-
4. The only ground of challenge raised by the Appellant Insurance Company
is that the First Respondent was a housewife. She suffered permanent
disability to the extent of 80% on account of amputation of her left leg
below knee. The Claims Tribunal erred in taking the loss of earning
capacity as 100%. Although, it should have been taken as 40% in respect
of the whole body. It is stated that the compensation of `2,50,000/-
awarded towards purchase of artificial limb was not justified.
5. 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."
6. Admittedly, the First Respondent was a housewife. With her amputated
leg, she would hardly be able to carry out day to day household activities.
She may be able to carry out small work while sitting. Thus, the loss of
gratuitous services rendered by a housewife with an amputated leg would
be about 80%.
7. This Court in Royal Sundaram Alliance Insurance Co. Ltd. v. Master
Manmeet Singh & Ors. MAC. APP. 590/2011, decided on 30.01.2012.
this Court dealt with the question of value of gratuitous services rendered
by a housewife. 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."
8. There was no evidence with regard to the First Respondent's
qualification. Thus, the minimum wages of a non-Matriculate have to be
taken to determine the loss of gratuitous services. Following Master
Manmeet Singh, the loss of value of gratuitous services rendered by the
Claimant comes to `3,81,480/- (1870/- + 25% x 12 x 17 x 80%) as
against an award of `4,05,000/- made by the Claims Tribunal under this
head.
9. The compensation of `2,50,000/- awarded towards purchase of artificial
limb was granted on the basis of the estimate proved on record by the
First Respondent. The same, therefore, cannot be faulted.
10. A perusal of the impugned order reveals that no compensation was
awarded towards loss of amenities and the compensation of `25,000/-
awarded towards pain and suffering in case of an amputation is on the
lower side. Thus, though the compensation awarded by the Claims
Tribunal towards loss of gratuitous services is in excess of about `
24,000/- but, for the reasons as stated above, it cannot be said that the
compensation awarded is excessive or exorbitant. On the other hand, the
compensation awarded is just and reasonable.
11. The Appeal is devoid of any merit; the same is accordingly dismissed.
12. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
13. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 18, 2012
vk
