Delhi High Court
Bhagwan Dass vs Vijender Kumar & Ors on 6 April, 2015
$-2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 6th April, 2015
+ MAC.APP. 659/2010
BHAGWAN DASS ..... Appellant
Through: Ms. Rupika Singh, Adv. for
Mr. Navneet Goyal, Adv.
versus
VIJENDER KUMAR & ORS ..... Respondents
Through: Mr. Rajat Brar, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is for enhancement of compensation of `7,25,500/-
awarded in favour of the Appellant for having suffered grievous
injuries resulting in amputation of the right leg below knee in a motor
vehicular accident which occurred on 13.06.2007.
2. In the absence of any appeal by the owner, driver and the Insurance
Company, the finding on negligence and liability reached by the
Claims Tribunal has attained finality.
3. The details of the compensation awarded as given in para 11 of the
impugned judgment are tabulated hereunder:-
Sl.No. Heads Compensation
1. Medical Treatment `1,21,500/-
2. Special diet/Conveyance `8,000/-
3. Loss of income `28,000/-
4. Loss of Earning Capacity `4,13,000/-
5. Pain & sufferings `30,000/-
6. Disfigurement `75,000/-
7. Loss of amenities of life `50,000/-
Total Compensation ` 7,25,500/-
4. It is urged by the learned counsel for the Appellant that the Appellant
incurred an expenditure of `2 lacs towards his treatment but he was
granted a compensation of `1,21,500/- only. It is also contended that
the compensation awarded towards loss of earning capacity, pain and
suffering, disfigurement and loss of amenities of life is on the lower
side.
5. On the other hand, Mr. Rajat Brar, Advocate appearing for
Respondent no.3 submits that the compensation awarded is not only
just and reasonable but the same is quite liberal in view of the fact that
although the Appellant suffered disability to the extent of 80% in
respect of right lower limb but the functional disability of 60% as
assessed by the Claims Tribunal was on the higher side. It ought to
have been less than 50% as the Appellant is still carrying out the job
of a painter even after suffering amputation. It is also stated that the
Claims Tribunal made an addition of 30% towards future
prospects/inflation which was not permissible. Reliance for the same
is placed on Reshma Kumari and Ors. v. Madan Mohan and Anr.,
(2013) 9 SCC 65 and a judgment of this Court in HDFC ERGO
General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors., MAC. APP.
189/2014 decided on 12.01.2015.
6. The Claims Tribunal awarded compensation of `1,21,500/- towards
medical expenditure on the bills produced by the Appellant. At the
same time, it must be noted that the Appellant suffered amputation of
his right lower limb. It is always not possible for the victim/his family
members to produce all the bills in respect of the treatment and the
medicines purchased. Thus, the compensation of `1,21,500/- is raised
to `1,30,000/-.
LOSS OF EARNING CAPACITY
7. While granting loss of earning capacity, the Claims Tribunal admitted
that the Appellant was working as a painter and therefore, took
minimum wages of a skilled worker to compute the loss of
dependency and further, made an addition of 50% towards inflation.
8. In view of the three Judge Bench decision of the Supreme Court in
Reshma Kumari and Ors. v. Madan Mohan and Anr., (2013) 9 SCC 65
and a judgment of this Court in HDFC ERGO General Insurance Co.
Ltd. v. Smt. Lalta Devi & Ors., MAC. APP. 189/2014 decided on
12.01.2015 addition of 50% towards inflation was not permissible. At
the same time, it may be seen that in the year 2007, a painter being a
highly skilled worker might have been earning `200/- to 250/- per day
and therefore, a sum of `5205/- taken as monthly income by the
Claims Tribunal to award the loss of earning capacity cannot be
faulted.
9. A painter may find it a little difficult to climb wooden stairs for
carrying out his job, but at the same time the Appellant being a good
painter would at least be able to earn 40% of the wages. In view of
this, the loss of earning capacity granted to the extent of 60% cannot
be faulted.
PAIN AND SUFFERING AND NON-PECUNIARY DAMAGES
10. The Claims Tribunal awarded a sum of `30,000/- towards pain and
suffering and `75,000/- and `50,000/- respectively towards
disfigurement and loss of amenities in life.
11. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343 it was laid
down that wherever any compensation more than 50% on account of
loss of earning capacity is awarded, only a nominal compensation is
awarded towards loss of amenities in life, otherwise it will be a
duplication of award. The overall compensation of `1,45,000/-
awarded towards non-pecuniary damages including pain and suffering,
to my mind is just and reasonable keeping in view the judgment in Raj
Kumar (supra).
LOSS OF INCOME
12. On appreciation of evidence, it was found that the Appellant could not
carry out work for about 8 months. The Claims Tribunal awarded a
compensation of `28,000/- towards loss of salary for 8 months. Since
I have held the income of the Appellant to be `5205/- per month, I
will increase this amount from `28,000/- to `41,640/-.
13. Similarly, I increase the compensation towards special diet and
conveyance charges to `10,000/- each as against the consolidated sum
of `8,000/- awarded by the Claims Tribunal.
14. The compensation awarded is tabulated hereunder:-
Sl. Particulars Awarded by Awarded by
the Claims this Court
No.
Tribunal
1. Medical Treatment `1,21,500/- `1,30,000/-
2. Special diet/Conveyance `8,000/- ` 20,000/-
3. Loss of income `28,000/- `41,640/-
4. Loss of Earning Capacity `4,13,000/- `4,13,000/-
5. Pain & sufferings `30,000/- `30,000/-
6. Disfigurement `75,000/- `75,000/-
7. Loss of amenities of life `50,000/- `50,000/-
Total Compensation ` 7,25,500/- ` 7,59,640/-
15. The compensation is thus enhanced by `34,140/- which shall carry
interest @ 7.5% per annum from the date of filing of the Claim
Petition.
16. Respondent no.3 insurance company is directed to deposit the
enhanced compensation along with interest within eight weeks.
17. The appeal is allowed in above terms.
18. Pending applications, if any, stand disposed of.
(G.P. MITTAL)
JUDGE
APRIL, 06, 2015
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