Delhi High Court
Oriental Insurance Co Ltd vs Ashok Sen Gupta & Ors on 24 December, 2014
$~A-31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:24.12.2014
+ MAC.APP. 1150/2014 & CM No.20819/2014
ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr.Pankaj Seth, Advocate
versus
ASHOK SEN GUPTA & ORS ..... Respondents
Through Mr.S.N.Parashar, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. The present appeal is filed seeking to impugn the Award dated
4.9.2014. The brief facts are that on 16.7.2008 the respondent No.1
alongwith his friend Pankaj Beri reached Pankha Road, Janakapuri. There he
was hit from the backside by an RTV bus said to be driven in a rash and
negligent manner. Respondent No.1 suffered injuries and was hospitalised.
2. The controversy centres around the compensation awarded to
respondent No.1 by the Tribunal. Based on the evidence on record the
Tribunal awarded the following compensation:-
Treatment expenses Rs.51,236/-
Pain and sufferings Rs.1,00,000/-
Conveyance, attendant Rs.55,000/-
charges and special diet
Loss of future earning Rs.6,24,393/-
capacity due to disability
Loss of enjoyment of life Rs.50,000/-
Loss of income during Rs.36,729/-
treatment
Loss of marriage prospects Rs.50,000/-
Total Rs.9,67,358/-
3. The Tribunal noted that respondent No.1 has suffered 19% permanent
disability in relation to his right upper limb. The Tribunal noted the
evidence of PW-3 Dr.Navneet Rustagi, MS(Specialist Ortho), Guru Gobind
Singh Govt. Hospital, Delhi. The Tribunal also noted that respondent No.1
was a self employed computer hardware mechanic stated to be earning
Rs.10,000/- per month. The Tribunal assessed the functional disability at
50%. As no evidence was filed about the income, the Tribunal took the
minimum wages for a matriculate which at the relevant time was Rs.4081/-
per month. The Tribunal noting the age of respondent No.1 as 27 years
enhanced the said amount by 50% for future prospects for the purpose of
computation of loss of future earnings. A sum of Rs.6,24,393/- was awarded
using a multiplier of 17 for loss of future earning.
4. Learned counsel appearing for the appellant submits that the
compensation awarded is on the higher side. He submits that the disability is
not of a nature which would severally hamper the functioning of respondent
No.1 and hence the Tribunal has wrongly assessed the functional disability
at 50%. It is urged that given the nature of disability the appropriate
functional disability would be much less. It is further urged that the
Tribunal has after having assessed the income based on minimum wages
wrongly enhanced the same for future prospects for the purpose of
computation of loss of future earning. Further 1/3 rd was not deducted from
the said amount for the purpose of computing loss of future income.
5. Coming to the evidence on record the Disability Certificate of
respondent No.1/Ex.PW1/4 reads as follows:-
"This is to certify that Sh.Ashok Sengupta, Age 32
Years/Male, S/o D.K.Sengupta, R/o RZ-224, Raghu
Nagar, Shiv Block, New Delhi-110045 is a case of Post
traumatic stiffness right elbow and wrist following
malunited fracture both bone forearm. He is physical
disabled and has 19% (nineteen percent) Permanent
physical disability in relation to his right upper limb."
6. PW-3 Dr.Navneet Rustagi (Specialist) Guru Gobind Singh Hospital,
Delhi in his affidavit states that respondent No.1 is suffering from 19%
permanent physical disability in relation to right upper limb. He also states
that due to this disability respondent No.1 will not be able to do work in his
full capacity. Respondent No.1 in his affidavit by way of evidence as PW-1
states that he is a computer hardware mechanic and is self employed. He
further states that due to the accident he could not work for one year and his
working and earning capacity has been reduced. He further states that had
he not suffered the accident he could have started earning Rs.25,000/- per
month in future. He states his educational qualifications is 12 th Class pass
and he also states that he has completed a Computer Hardware Course. A
perusal of his Certificate Ex.PW1/16 which is issued by Datacraft shows
that he has done a two months course in PC assembling and troubleshooting.
7. From the evidence it is clear that the respondent No.1 has failed to
give full details of the effect the disability had on his ability to complete his
professional duties. Keeping into account the nature of disability suffered
which is akin to stiffness of his right upper limb, in my opinion the
functional disability would be appropriately assessed at 40%. I modify the
award accordingly.
8. The loss of future earnings would now be Rs.4,99,514.4 [(4,081 +
50%) x 12 x 17 x 40/100].
9. The total compensation would now reads as under:-
Treatment expenses Rs.51,236/-
Pain and sufferings Rs.1,00,000/-
Conveyance, attendant Rs.55,000/-
charges and special diet
Loss of future earning Rs.5,00,000/-
capacity due to disability
Loss of enjoyment of life Rs.50,000/-
Loss of income during Rs.36,729/-
treatment
Loss of marriage prospects Rs.50,000/-
Total Rs.8,42,965/-
10. As far as future prospects are concerned, I can take judicial note of
the fact that minimum wages for a matriculate in 2002 were Rs.3115.4/-
P.M. and in 2012 were Rs.8528/- P.M. It is obvious that the prescribed
minimum wages have more than doubled in ten years.
11. In case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54
the Supreme Court held that in the case of self employed or those on fixed
wages, when the victim is below 40 years an addition of 50% should be
made in the wages for the purpose of computing loss of future earnings.
12. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the
Supreme Court in the case of injury to a student who was studying in Class
XI aged 16 years had awarded 50% increase for future prospects.
13. The last submission of learned counsel for the appellants, is about
deduction of 1/3rd income for assessing loss of future earnings. In my
opinion, there are no grounds made out for deduction of 1/3rd of the
compensation amount.
14. The appeal is accordingly disposed of. The statutory amount
deposited by the appellant at the time of filing the appeal be released to the
appellant/insurance company. The appellant may comply with the Award as
modified by this order within six weeks from today.
15. Dasti.
JAYANT NATH, J
DECEMBER 24, 2014
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