Delhi High Court
Dinesh Kumar vs Hari Shankar & Anr on 8 May, 2014
S-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC APP. 908/2013
DINESH KUMAR ..... Appellant
Through: S.N. Parashar, Advocate.
versus
HARI SHANKAR & ANR ..... Respondents
Through: Mr. R.C. Mahajan, Advocate
for R-2.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 08.05.2014
1. The appellant on 7th March, 2004 boarded the Indigo Car
bearing no. DL-1YA-0431 from Palam as a passenger for
proceeding towards Najafgarh. The driver of the car was
driving it at a very high speed and in a very rash and negligible
manner. At about 6.40 pm, when the car reached Hanuman
Mandir on Chhawla Road, the driver lost control over it and
caused accident. The appellant suffered grievous injuries and
was immediately removed to RTRM hospital, Jafarpur Kalan in
PCR Van. He was shifted to Indian Spinal Injuries Centre,
Vasant Kunj, where he remained admitted from 07.03.2004 to
07.04.2004. He was then taken to Apollo Hospital where his
treatment continued from 16th April, 2004 to 19th April, 2004.
On 20th April, 2004, he was admitted in GB Panth Hospital
where he remained admitted till 1st May, 2004. He was treated
at All India Institute of Medical Sciences, Delhi from 20th
June, 2004 to 07 July, 2004 and then at Krishna Hospital,
Haldwani from 22nd April, 2005 to 26th April, 2005.
2. In the accident, the appellant suffered multiple injuries
with left brachial plexus, fracture dislocation of left hip & right
ankle, pelvis fracture, head injury, fracture of shaft humerus,
fracture of left hemimandible, fracture of both nasal bones,
fracture of left clavicle, fracture of left scapula, injury on face
and teeth were also broken. He also underwent hip replacement.
He had suffered permanent disability of 90% in respect of left
lower and upper limb. He was a driver by profession and due to
this disability he became incapable of driving. He was aged 29
years at the time of accident.
3. On these aspects, the learned tribunal considered the
evidences of record and found that the appellant was a driver by
profession. The tribunal has further held that according to the
doctor, the patient was not able to perform his duties as a driver
at all because of his disability. The tribunal has granted a sum
of Rs. 5,03,135/- towards medicine and treatment, a sum of Rs.
7,84,517/- towards loss of earning on account of disability, a
sum of Rs. 50,000/- towards pain and sufferings, a sum of Rs.
25,000/- towards special diets and conveyance, a sum of Rs
2,00,000/- for future medical treatment, a sum of Rs. 45,000/-
towards attendant charges and Rs. 25,000/- towards loss of
amenities and thus awarded total sum of Rs. 16,32,652/- along
with interest at the rate of 7.5% from the date of filing of the
petition till its realisation.
4. The factum that the accident was the result of the rash
and negligent driving by the driver of the offending vehicle is
not disputed. The contesting respondent has also not disputed
his liability to pay. The finding of the Ld. Tribunal to this
effect, therefore, attains finality.
5. The appellant has stated that as per the doctor's
statement, which fact is not disputed, he requires replacement
of the hips after 15-20 years. His age was 29 at the time of the
accident and therefore, he requires minimum two hip implants
during his lifetime.
It is argued that although the learned tribunal has, on the
basis of evidence of Dr. Naveen Talwar, Delhi Osteopors
Foundation & Orthopaedic Clinic, Zor Bagh, New Delhi
agreed that the future estimate of the implant of artificial hip
would be Rs. 2,00,000/- in each case, yet, only a sum of Rs.
1,20,000/- has been awarded for future expenses for purchase
and change of artificial hip.
6. It is contended on behalf of the Insurance Company that
the learned trial court has taken into consideration all the facts
and circumstances while awarding the sum of Rs. 2 lacs as
compensation towards the future medical expenses inclusive of
expenses incurred for the first implant.
7. The evidence of PW-13, Dr. Naveen Talwar, clearly
shows that each implant of artificial hip would need Rs. 2 lacs.
There is nothing on record to doubt the testimony of Dr.
Naveen Talwar, who is an expert in this field. The age of the
injured was 29 years. He, therefore, requires two hip
transplant. In view of this, I award a sum of Rs. 4 lacs towards
future medical expenses for hip transplant.
8. It is also argued by the appellant that the learned tribunal
has not taken into consideration the future prospects while
calculating his income for the purpose of grant of loss of future
earnings. Learned counsel for the Insurance Company has
stated that no such addition towards future increment is to be
added in the salary and has relied upon the judgment of Hon'ble
Apex Court in the case of M.K. Gopinathan Vs. J. Krishna &
Ors., 2014(5) SCALE.
9. I have given careful consideration to the rival contentions
and have gone through the case law relied upon. In the case of
M.K. Gopinathan (supra), the Apex Court has not discussed the
proposition of grant or non-grant of the future increments while
calculating the future loss of earning. The Hon'ble Supreme
Court has simply used the formula and calculated the amount of
compensation in the backdrop of the facts and circumstance of
the case. However, in the case of Neerupam Mohan Mathur Vs.
New India Assurance Company, 2013 (8) SCALE 360 the
learned Apex court of three-Judge Bench has clearly laid down
the proposition and the formula to be followed while
calculating the loss of future earnings in injury cases.
Relevant para is reproduced hereunder:-
"6. In the appeal preferred by the claimant the High
Court taken a loss of earning capacity to 70% in
view of permanent disability of right hand. Based
on salary of Rs. 3,000/- per month as claimed by the
claimant adding 50% on the same for future
prospects of increase and applying multiplier of 16,
compensation amount was raised to Rs.4,500/- with
interest at 6% from the date of petition. The High
Court made the following observation while
granting compensation against different heads:
"4. In my view, the issue relating to death or injury
would have no serious difference in the choice of
multiplicand or the multiplier. If at all, case of
injury that completely disables a person for life is
more poignant than a case of death and that is why
Courts do not always provide for deductions for
personal expenses in case claims for injuries.
Indeed, the deduction itself will be meaningless for
unlike a case of death, we need to make provision
for his own living as well as the living of persons,
who are dependent on injured person. The loss in
case of injury where there is an amputation and
there is a high percentage of loss of earning
capacity, in my view, the principle laid down in
Sarla Verma providing for a prospect of future
increase in salary cannot be ruled out. I would,
therefore, take the multiplicand to be Rs. 4,500/-
which is the salary of Rs. 3000/- per month plus 50%
of the same for future prospects of increase.".
10. Although, both the judgments were pronounced by three-
Judges Bench of Apex Court but since in the case of Neerupam
Mohan Mathur (supra), the Hon'ble Apex court has discussed
the law and the principles governing the calculation of future
income in the case of disabilities, and since Neerupam Mohan
(supra) is an earlier Judgment, following the principles laid
down in Neerupam Mathur (Supra), the appellant is entitled for
the future prospects.
11. Before the tribunal, since the appellant could not produce
any evidence to prove his salary and since the learned tribunal
reached to the conclusion that he was working as a driver, the
learned tribunal had taken the minimum wages of the skilled
person i.e. Rs. 3286.90/- as on 01.02.2004. On the basis of
evidence, ld. tribunal has also opined that the injured/claimant
was unable to drive and thus added 30% towards future earning
capacity which he had lost due to this accident. Admittedly, the
age of the claimant was 29 years at the time of the accident and
50% of his last drawn wages were required to be added as loss
of future income (as per Neerupam Case supra).
12. Loss of future Income -
50% of Rs. 3286.90 + 3286.90 = Rs. 4930.35/- .
13. There is no dispute regarding use of the multiplier. The
learned tribunal has used the multiplier of 17.
14. From the disability certificate Ex. PW 1/1, it is apparent
that the claimant had suffered permanent disability of 90% in
relation to his left upper and left lower limb. Doctor R.K.
Wadhwa of Safdarjung Hospital, New Delhi has been examined
and he has clearly stated that due to this permanent disability,
the patient would be unable to run or climb stairs or drive any
vehicle and such like other acts and also opined that there was
no possibility of improvement in the condition of the patient.
He has also further opined that since injured was the driver by
profession at the time of the accident, his disability is total.
15. The principle of assessing the loss of future income due
to disability has been discussed by the Apex court in the case
Raj Kumar Vs. Ajay Kumar & Ors . (para 8).
"8. Where the claimant suffers a permanent disability as a result
of injuries, the assessment of compensation under the head of loss
of future earnings, would depend upon the effect and impact of
such permanent disability on his earning capacity. The Tribunal
should not mechanically apply the percentage of permanent
disability as the percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of economic loss,
that is, percentage of loss of earning capacity, arising from a
permanent disability will be different from the percentage of
permanent disability. Some Tribunals wrongly assume that in all
cases, a particular extent (percentage) of permanent disability
would result in a corresponding loss of earning capacity, and
consequently, if the evidence produced show 45% as the
permanent disability, will hold that there is 45% loss of future
earning capacity. In most of the cases, equating the extent
(percentage) of loss of earning capacity to the extent (percentage)
of permanent disability will result in award of either too low or
too high a compensation. 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) SCALE 298 and Yadava Kumar v. D.M., National
Insurance Co. Ltd. - 2010 (8) SCALE 567)."
16. In another case K. Janardhan Vs. United India Insurance
Co. Ltd. and Another 2008 ACJ 2039, the Apex court has
assessed the loss of earning capacity as 100%. In this case, the
injured was the driver and due to the disability suffered by him
(which was 60% in respect of a particular limb), was
disqualified from getting a driving license and since he was
unable to drive due to the injuries, his loss of earning capacity
was assessed as 100%.
17. In the present case also, due to the disability which was
assessed by the doctor as 90%, the appellant had become unable
to follow his profession, which was of a driver and thus lost his
vocation and therefore, is incapable of earning his livelihood as
a driver. His loss, therefore, is total and for the purpose of loss
of future income, it has to be assessed as 100% functional
disability.
18. Loss of earning due to disability = Rs. 4930.35 X 12 X
17 X 100/100 = Rs. 10,057,91.4/- .
19. The following amount of compensation is awarded to the
appellant.
1. Medicine and treatment : Rs. 5,03,135/-
2. Loss of earning on account : Rs. 10,057,91.4/-
of disability
3. Pain and Suffering : Rs. 50,000/-
4. Special Diet & Conveyance : Rs. 25,000/-
5. Attendant Charges : Rs. 45,000/-
6. Loss of amenities : Rs. 25,000/-
7. For future medical treatment : Rs. 4,00,000/-
Total : Rs. 20,53,926.4/-
20. It is prayed by the respondent/Insurance Company that
no interest should be awarded on the amount of compensation
towards future hip replacement. Accordingly, while an interest
of 7.5% is awarded on the enhanced amount of compensation
from the date of petition till its realisation, no interest is
awarded on the sum of Rs 4 lacs which has been granted
towards the future expenses to be incurred by the appellant for
his hip replacement in future. This amount shall also be kept by
the appellant in FD which is to be released with the permission
of the court at the time of his hip replacement.
21. The insurance company is directed to pay the amount
within eight weeks, in default of which, it shall be liable to pay
the interest of 12% per annum on the entire amount from the
date of default till its realisation.
22. With the above observation, this petitions stands
disposed of.
DEEPA SHARMA, J
MAY 08, 2014
sapna
