Delhi High Court
National Insurance Co Ltd vs As Kutty & on 28 November, 2014
$~A-3 and A-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28.11.2014
+ MAC.APP. 235/2005
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr.Nitesh, Adv.
versus
AS KUTTY & OTHERS ..... Respondent
Through Mr.S.N.Parashar, Adv.
+ MAC.APP. 419/2005
AS KUTTY ..... Appellant
Through Mr.S.N.Parashar, Adv.
versus
SACHIN KUMAR ..... Respondent
Through Mr.Nitesh, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. The present appeal impugns the Award passed by the Tribunal dated
20.12.2004. The Insurance Company has filed MAC.App.No.235/2005
seeking to challenge the compensation awarded. The claimant has filed
MAC.APP.No.419/2005 seeking to enhance the compensation awarded.
2. The background facts which led to filing of the claim petition filed by the
claimant Shri A.S.Kutty are that on 27.3.1999 the claimant was travelling on a
two wheeler scooter from Connaught Place to Rohini. The scooter was being
driven for one Mr.Pramod Kumar Pathak whereas the claimant was the pillion
rider. At Punjabi Bagh Chowk, their scooter was hit by a bus stated to be
driven at a fast speed rashly and negligently. The claimant fell down and
suffered grievous injuries.
3. The controversy revolves around the compensation awarded. The
Tribunal awarded the following compensation:-
On account of loss of income Rs.46,000/-
On account of medical expenses Rs.85,000/-
On account of conveyance charges Rs.10,000/-
and special diet
On account of permanent disability Rs.13,56,102/-
On account of pain and suffering, Rs. 25,000
loss of amenities of life, mental
shock and agony
Total Rs.15,22,102/-
4. The Tribunal noted that the claimant's four fingers and thumb were cut
off and were rejoined in the hospital. It also noted that as per Disability
Certificate the claimant had 45% disability of the right upper limb. The
Tribunal assessed the functional disability at 45%. The award also notes that
the claimant was working for Hindustan Lever Limited and was drawing a
monthly salary of Rs.16,742/-. The Tribunal used the appropriate multiplier of
15 and awarded Rs.30,56,102/- as compensation for loss of income due to
permanent disability.
5. Learned counsel appearing for the insurance company submits that the
Tribunal has wrongly assessed the functional disability. It is submitted that as
per the evidence on record, PW-1 in his cross-examination admits that there is
no loss of income suffered by him on account of the accident. Hence, he
submits that there is no reason to award him any loss of income for permanent
disability.
6. Learned counsel appearing for the claimant, however, submits that given
the nature of sufferings of the claimant the functional disability has been rightly
assessed. He further submits that after having assessed the income of the
claimant at RS. 16,742/- the Tribunal did not increase the said income on
account of future prospects while computing loss of income on account of
permanent disability. He further submits that the damages given for non
pecuniary heads is on the lower side.
MAC.APP.235/2005
7. I will first deal with the submissions of the insurance company in
MAC.APP.No.235/2005. A perusal of the evidence of PW-2 shows that he
does in his cross-examination states that he is still in service and getting a
salary without any reduction. He further states that there is no loss of earning to
the said extent.
8. The disability certificate reads as follows:-
"Degloving injury right upper limb with traction apophysitis
right. Thus with restricted painful mobility with right wrist and
with right ear and mouth. His disability is 45%. in right upper
limb. It is therefore recommended that he may be considered as
a candidate for the benefit of permanent handicapped person."
9. In his evidence PW-2 states that he has become permanently disabled in
respect of his right hand. His four fingers and thumb were cut off and were
rejoined in the hospital after eight days. He also states that he feels pain
towards his right chest due to fracture of ribs and he cannot work from his right
hand as the same had been crushed.
10. The Tribunal had examined PW-4 Dr.Anoop Jalota who has said that the
claimant's right thumb has been amputated and that he has decreased sensation
in his right hand, forearm and right arm. In his cross-examination he admits
that he does not have a degree in Orthopaedics. However, his evidence was not
believed by the Tribunal. The Tribunal held that it is doubtful whether PW-4
has examined the claimant on an earlier date.
11. However, in the light of evidence on record and keeping into account
the fact that the claimant was working with a private limited company, his
career is bound to get effected on account of the disability. In the private sector
his limitations to carry out operational work would certainly hamper his career
and his future employment.
12. In the light of the above facts, in my opinion, there are no reasons to
disagree with the findings recorded by the Tribunal holding functional
disability at 45%.
13. There is no merit in the appeal of the insurance company. Same is
dismissed. All interim orders including order dated 5.4.2005 stands vacated.
14. Statutory amount, if any, deposited by the appellant at the time of filing
the appeal be refunded to the appellant.
MAC.APP.419/2005
15. I will now deal with the contention of learned counsel for the claimant in
MAC.APP.No.419/2005.
16. Coming to the issue of future prospects raised by the claimant, this court
applying the ratio of the judgments of the Supreme Court in the cases of Rajesh
& Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54, Smt.Savita vs. Bindar
Singh & Ors., (2014) 4 SCC 505 and V.Mekala vs. M.Malathi & Anr., 2014
ACJ 1441 has in several judgments held that future prospects of 30% would be
applicable in the facts and circumstances like the present case where the
deceased is between 40-50 years.
17. After having assessed the income of the claimant at Rs.16,742/- per
month, the Tribunal ought to have enhanced it by future prospects of 30%.
Keeping into account the fact that the age of the claimant at the relevant time
was 45 years, compensation for loss of wages on account of permanent
disability will now work out to Rs.17,62,965/- [(16742+30%) x 12x 15 x 45
%].
18. On the issue of non pecuniary damages the Tribunal has awarded
Rs.25,000/- towards pain and suffering, loss of amenities of life, mental shock
and agony in its award based on an accident that has taken place in 1999. In
my opinion, the compensation is just and reasonable.
19. The compensation as per this order will now work out to be as follows:-
On account of loss of income Rs.46,000/-
On account of medical expenses
Rs.85,000/-
On account of conveyance charges and
special diet Rs.10,000/-
On account of permanent disability Rs.17,62,965/
On account of pain and suffering, loss of Rs. 25,000
amenities of life, mental shock and agony
Total Rs.19,28,965/
20. The enhanced compensation be deposited by the Respondent
No.2/National Insurance Company alongwith accumulated interest @ 6% per
annum from the date of filing the claim petition till deposit in Court with the
Registrar General of this Court within eight weeks.
21. It transpires that the claimant has expired during the pendency of this
appeal and his widow and son have been brought on record. Let 75% of the
additional compensation be released to the widow and 25% share to the minor
child be kept in a FDR for a period till the minor child attains the age of 21
years. On attaining the age of 21 years, the same may be released to the child
alongwith accumulated interest.
22. Appeal stands disposed of.
JAYANT NATH, J
NOVEMBER 28, 2014
n
