Naresh Kumar vs National Insurance Co Ltd & Ors.
2013 Latest Caselaw 2006 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         MAC.APP. 1097/2011

%                       Judgment reserved on: 11th April, 2013
                       Judgment delivered on: 2nd May, 2013

NARESH KUMAR                                          ..... Appellant
            Through:            Mr.Sushil Kumar, Advocate.

              Versus

NATIONAL INSURANCE CO LTD & ORS.              ..... Respondents
             Through: Mr.Soumik Mazumdar, Advocate for
                      Respondent No.1/Insurance
                      Company.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

1. The present appeal has been preferred against the impugned award dated 04.08.2011, whereby the learned Tribunal has granted the compensation as under:-

"1. Compensation for pain & sufferings : 1,00,000/-

2. Compensation for expenses incurred on : 3,10,819/ medical treatment, special diet, conveyance and attendant charges :

3. Compensation on account of loss of Income : Nil.

4. Compensation on account of future loss of : Nil.

earning capacity due to disability.

5. Compensation on account of loss of : 80,000/-

Enjoyment of amenities of life.

6. Compensation on account of inconvenience, : 70,000/-

hardship, discomfort, disappointment, frustration and mental stress in life.

____________ Total Rs. 5,60,819/-

____________

2. The appellant is seeking enhancement of the compensation amount mainly on the ground that the appellant has suffered 80% permanent physical disability and to this effect, disability certificate was issued by Hindu Rao Government Hospital, Delhi by Board of Doctors. In spite of that, the learned Tribunal has failed to grant any compensation for permanent disability occurred to appellant due to the accident.

3. Learned counsel appearing on behalf of the appellant has submitted that PW2 Dr. Arun Kumar was examined before the Trial Court to prove the disability and same was proved by the said doctor. He was one of the members of the Board of Doctors, who had issued the disability certificate to the appellant. However, the learned Tribunal has completely ignored the said disability certificate with unreasonable reasoning that the appellant was doing business regularly and continuously through his staff members and there was no loss of income during the treatment. Moreover, income of the appellant has been increasing year to year. Learned counsel submits that above noted observation of the tribunal was on assumption and presumption and without any base or ground.

4. Learned counsel further submitted that the learned Tribunal has considered and recorded in its impugned judgment that the appellant has

sustained 80% permanent disability in relation to right lower limb. Permanent Disability Certificate Ex. PW1/8 has been proved by Dr. Arun Yadav. The age of petitioner was about 54 years at the time of the accident. There is amputation above knee in right leg. The learned Tribunal has observed that because of permanent disability, the appellant would not be able to run and walk properly. He would also face difficulties in proper sitting and thereby would not enjoy all kinds of amenities of life in which right leg would be required.

5. He submitted that though the learned Tribunal has recorded the physical condition and difficulties which would occur in future to the appellant, however, it has granted compensation for a sum of Rs.80,000/- only on account of loss of enjoyment of amenities of life.

6. He further submitted that compensation of said Rs.80,000/- has been granted by the learned Tribunal without any basis. Whereas the settled law is that the learned Tribunal has to grant compensation under the head of 'Permanent Disability', keeping in view the income, age of the appellant and percentage of the disability suffered. However, the learned Tribunal has failed to apply the aforesaid formula applicable to assess the loss of income due to permanent disability.

7. Learned counsel for the appellant has drawn the attention of this Court to the observations made by the learned Tribunal regarding compensation on account of loss of Income that the appellant was running his own workshop at Kanhiya Nagar, Delhi and was earning Rs. 10,000/- per month and was an income tax payee at the time of the accident, which occurred on 31.12.2007. He has relied upon ITRs Ex. PW 1/9A, B and C

pertaining to the assessment years 2005-06, 2006-07 and 2007-08. As per ITR Ex. PW 1/9A, net income of the appellant for the period 01.04.2004 to 31.03.2005 was Rs. 97,587/-. This income was entirely from business of the appellant. ITR Ex. PW 1/9B shows that income of the appellant was Rs.1,09,056/- for the period 01.04.2005 to 31.03.2006. ITR Ex. PW1/9C shows income of appellant for the period 01.04.2006 to 31.03.2007 as Rs. 1,10,147/- and the income of the appellant during the period 01.04.2007 to 31.03.2008 was Rs. 1,55,048/-.

8. In view of the above, learned counsel for the appellant has submitted that the learned Tribunal has come to the conclusion that income and expenditure account filed with the ITRs shows that the appellant was having staff and was paying salaries to them to the tune of Rs. 42,000/- in the accounting year of 31.03.2006 and Rs. 57,000/- has been paid in the accounting year ended on 31.03.2008. Therefore, the learned Tribunal opined that the appellant was doing his business regularly and continuously through his staff and was earning more than previous years.

9. He further submitted that the learned Tribunal has wrongly observed that the business of the appellant was increasing and there was no effect on his business due to the disability caused to him in the said accident.

10. Ld. Counsel submitted that the accident took place on 31.12.2007. By considering the ITR for the period 01.04.2007 to 31.12.2008 and while coming to the conclusion regarding increase of the income of the appellant, the learned Tribunal has wrongly relied upon the same as after the accident, only three months period has been calculated in the said ITR, wherein the net income of the appellant has been shown as Rs.1,55,048/-. Therefore,

while considering the income, the learned Tribunal should have considered the income of the whole year.

11. Moreover, after the accident, there is no ITR on record produced before the learned Tribunal, whereby it can come to the conclusion that he was earning from the same business more than what he was earning previously before the accident. In addition, after the accident, the appellant could not file any ITR for the reason that his business totally collapsed thereafter. Accordingly, the appellant in his evidence filed by way of affidavit has stated that he had suffered total loss of future income as Rs.10,000 x 12 x 11 which comes to Rs.13,20,000/-.

12. Other ground taken by the appellant is that owing to the accident in question, his right leg was amputated due to which he is not able to walk or run properly. The doctor has advised him for artificial limb for which approximately a sum of Rs.2,74,000/- is required. To this effect, the appellant has produced a copy of the estimate Ex.PW1/10 of Endolite Prosthetic & Orthotic Centre. Despite that, the learned Tribunal has failed to grant any amount of compensation for the cost of artificial limb.

13. To support his arguments, learned counsel for the appellant has relied upon a case of Kavita Vs. Deepak & Ors. 2012 (4) RCR (Civil) 273 decided by the Apex Court in Civil Appeal No. 5945/2012 on 22.08.2012, wherein it has been observed as under:-

"17. In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited, 2011 (4) R.C.R. (Civil) 107 : 2011 (4) Recent Apex Judgments (R.A.J.) 504 : (2011) 13 SCC 236, the Court observed:

"8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.

9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case."

"18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses."

14. Learned counsel submitted that in the aforecited case, while applying the multiplier of 17, the Apex Court has granted a sum of Rs.3,67,200/- for loss of future earning on account of 90% permanent disability suffered by the appellant.

15. He submitted that keeping in view the formula adopted by the Apex Court, in the case in hand, the appellant is at least entitled for a sum of Rs.10,000 x 12 x 11 x 80/100 = 10,56,000/- towards future loss of earning on account of 80% permanent disability suffered by him.

16. On the other hand, learned counsel appearing on behalf of the respondent/Insurance Company has submitted that the appellant was running his own workshop in Kanhiya Nagar, Delhi and he was doing this business through his staff and the same continued even after the accident, therefore, there was no loss of income due to the said accident.

17. Learned counsel further submitted that he has not produced any document or witness to prove that he has suffered any financial loss due to the said accident. Moreover, the learned Tribunal has assessed the income for the year 2007-08 and even his income during that period increased to Rs.1,55,.048/- from Rs.1,10,147/-. Therefore, the learned Tribunal has rightly not granted any compensation due to the disability suffered by the appellant.

18. As regards the artificial limb, learned counsel submitted that he has not produced any advise/estimate given by the doctor advising him artificial limb. More so, what is the age of that limb and even the bill for the same

has not been produced by the appellant. Therefore, in the absence of the same, no amount could be granted for the cost of artificial limb and so the learned Tribunal has rightly not granted any compensation on this aspect.

19. While concluding his arguments, learned counsel submitted that the settled law is that if the routine of the injured is not disturbed due to the accident suffered and he is doing his each and every work including the heavy work regularly as was doing before the accident occurred, then in that eventuality, the injured/appellant is not entitled to any compensation

20. I have heard ld. Counsels for the parties.

21. Appellant, who was running the workshop met with an accident at the age of 54 and as a result of the same his right leg got amputed above knee. Permanent disability has been assessed as 80%, he is seeking the enhancement of the compensation amount, specifically on the ground that the ld tribunal has not assessed the compensation on account of loss in future earning capacity, and the amount which would incur for the artificial limb.

22. It is important to note that the stand of respondent / insurance company is that the income of the appellant is not affected due to the disability. Significantly, the insurance company has not produced any material on record. Further, the workshop of the appellant has been managed by the employees who were appointed by the appellant. This relevant fact reflects upon the aspect that the appellant/claimant is not in a position to look after or manage the workshop by him as he was managing prior to the accident. In turn, the management of the workshop is dependent

on the employees. Therefore, the above fact leads to the presumption that the efficiency of the appellant and the administration of the workshop have been affected.

23. The apex court in Raj Kumar vs Ajay Kumar 2011(1) SCC 343 has prescribed the parameters to be followed in assessing the compensation in injury cases. In accordance with the principles, in injury cases, that the impact of the disability on the life of the injured is more important than the nature of the injury. It is to be noted that all injuries do not result in loss of earning capacity of the inured. It is an undisputed fact that the disability is permanent in nature, and the gravity of the same can be perceived on the basis of the percentage of disability, which has been assessed by the duly constituted medical board as 80%. Considering the gravity and nature of the disability, I am of the view that the appellant is entitled to get compensation on account of loss of earning capacity due to disability.

24. In order to ascertain the loss of earning capacity of the injured person the following factors are relevant: - (1) the age of the injured for ascertain the multiplier, (2) annual income of the injured for ascertaining the multiplicand and (3) functional disability of the injured for assessing the actual loss.

25. Firstly, the age of the appellant is 52. Therefore, the multiplier would

be 11.

26. Secondly, with respect to the income, the appellant has produced the income tax returns filed in the year of 2004 to 2005, 2005 to 2006, which

has been filed prior to the date of the accident, i.e., 31.12.2007. Moreover, the appellant has pleaded the monthly income as Rs 10,000/. It is pertinent to note that the appellant claimant has produced the income tax return filed for the financial year of 2007 to 2008, the period subsequent to the date of the accident. Therefore, considering the material on record and the pleadings, the annual income of the appellant is assessed as Rs 100,000 for the purpose of calculating the compensation.

27. Thirdly, the assessment of the functional disability is an important aspect which needs to be analysed and appreciated for arriving to the point of just and proper compensation in injury cases. Having regard to the effect of the permanent disability on the earning capacity, the age and nature of the injury, the functional disability of the appellant is assessed as 30%.

28. Thus, the loss of earning capacity of the appellant on account of disability comes to Rs 3,30,000 (1, 00,000 x 11x 30%).

29. Regarding compensation on account of the cost of artificial limb, the appellant/claimant has not produced proper medical evidence which could suggest the cost and effect. Therefore, the compensation on account of the same is rejected.

30. Resultantly, the compensation amount is enhanced to Rs.3,30,000/.

31. The appellant is entitled to get the enhanced compensation amount of Rs.3,30,000/ with 7.5% interest from the date of filing of the petition before the Trial Court till the payment.

32. The respondent insurance company is directed to deposit the entire amount with interest with Registrar General of this court within four weeks from the date of receipt of this order.

33. The Registrar General of this court is further directed to release the interest amount in favour of the appellant and the balance amount shall be kept in the form of FDR for three years

34. The appeal is allowed in the above terms.

35. No order as to costs.

SURESH KAIT, J

MAY 02, 2013 Sb/jg