Delhi High Court
National Insurance Co Ltd vs Shri Tinku @ Anil Kumar & Ors. on 15 April, 2015
$-22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th April, 2015
+ MAC.APP. 893/2013
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. Amit Kumar Pandey, Adv.
versus
SHRI TINKU @ ANIL KUMAR & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is for reduction of compensation of `7,53,133/- awarded
by the Motor Accident Claims Tribunal (the Claims Tribunal) in
favour of Respondent no.1 for having suffered grevious injuries in his
right leg resulting in permanent disability to the extent of 30% on
account of stiffness and deformity of the right lower limb in a motor
vehicular accident which occurred on 28.11.2010.
2. Immediately after the accident, Respondent no.1 was removed to
Meerut Hospital. Later on, he was shifted to Sushruta Trauma Centre,
Delhi where he remained admitted from 29.11.2010 to 24.12.2010.
The Claims Tribunal awarded the compensation of `7,53,133/- under
various heads, which can be extracted hereunder from para 23 of the
impugned judgment:-
Sl. Compensation under various Heads Awarded by the
Claims Tribunal
No.
(in `)
A. Pecuniary damages (Special damages):
a) Medical Expenses Nil.
b) Special Diet 10,000/-
c) Conveyance Charges 10,000/-
d) Loss of Income 21,112/-
e) Loss of Future Prospects 5,12,021/-
B. Non-pecuniary damages (General Damages):
a) Pain, Suffering, Inconvenience, Frustration, 50,000/-
Hardship And Trauma
b) Loss of Amenities, Etc. 1,00,000/-
c) Loss of Marriage Prospects, Etc. 1,50,000/-
TOTAL 7,53,133/-
3. It is pertinent to mention here that there is a clerical mistake in the
calculation as instead of `7,53,133/- the total amount of compensation
awarded by the Claims Tribunal is `8,53,133/-.
4. On appreciation of evidence, the Claims Tribunal found that the
accident was caused on account of rash and negligent driving of a car
bearing registration no.UP-17D-2122 which has struck against the two
wheeler on which Respondent no.1 was riding.
5. It was the case of Respondent no.1 that he was working as a Barber
and was earning `10,000/- per month. Respondent no.1 as PW-1
deposed that even on the date of recording his statement in May, 2012
he was unable to carry out his work on account of serious deformity in
his leg.
6. The Claims Tribunal in the absence of any documentary evidence with
regard to Respondent no.1's income took the minimum wages of a
skilled worker i.e. `5278/- p.m., made addition of 50% towards future
prospects and awarded a sum of `5,12,021/- on assuming 30%
functional disability. The Claims Tribunal further awarded the sums
towards pecuniary and non-pecuniary damages as stated earlier.
7. It is urged by learned counsel for the Appellant that Respondent no.1
did not suffer loss of earning capacity to the extent of 30%. The
compensation awarded towards loss of 30% earning capacity was
unjustified. It is also urged that Respondent no.1 was a self employed
person and normally in the said case addition towards future prospects
is not given. Reliance is placed on Sarla Verma (Smt.) & Ors. v. Delhi
Transport Corporation & Anr., (2009) 6 SCC 121 as approved in
Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65. It
is also contended that the compensation awarded towards non-
pecuniary damages is on the higher side.
8. I have perused the Trial Court record.
9. The first Disability Certificate dated 10.12.2011 was issued by Dr.
Baba Saheb Ambedkar Hospital. Respondent no.1 was still in the
internal fixator at the time of his medical examination by the Board.
The Board opined 40% disability in respect of right lower limb.
Respondent no.1 was also examined by AIIMS with regard to the
permanent disability and the Medical Board of AIIMS opined that the
disability was to the extent of 30%.
10. It may be noted that Respondent no.1 was a Barber by profession. His
profession would entail continuous standing for longer hours. On
account of the injuries suffered by Respondent no.1 it will be very
difficult for him to stand and the same will substantially affect his
earning capacity as a Barber.
11. It is true that in the absence of any specific averments with regard to
good future prospects, addition of 50% was not permissible (See:
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). But,
at the same time, once it was established that Respondent no.1 was
working as a Barber, the Claims Tribunal ought to have made
assessment of his income as a Barber. On daily earning of `300/-, I
tend to assess the monthly income of Respondent no.1 as `7500/- for
25 working days.
12. Respondent no.1 suffered 30% permanent disability on account of
stiffness and deformity of the right lower limb. As stated earlier the
disability will substantially affect Respondent no.1's earning capacity.
Thus, the assessment made by the Claims Tribunal that the disability
evaluated loss of earning capacity to the extent of 30% cannot be
faulted.
13. On the functional disability of 30% as taken by the Claims Tribunal,
the loss of earning capacity will come to `4,86,000/- (7500/- x 12 x 18
x 30%).
14. The Claims Tribunal awarded loss of income of `21,112/- only.
However, considering the nature of injuries suffered by Respondent
no.1, particularly the Disability Certificate issued by Dr. Baba Saheb
Ambedkar Hospital, I can say that Respondent no.1 could not have
attended to his work for at least a period of six months. The loss of
income therefore, for six months will be ` 45,000/- (7500/- x 6) as
against award of `21,112/- made by the Claims Tribunal.
15. Considering the nature of injuries and duration of treatment, the award
of compensation of `50,000/- towards pain and suffering, `1,00,000/-
towards loss of amenities and `1,50,000/- towards loss of marriage
prospects cannot be said to be exorbitant and excessive.
16. The compensation awarded is tabulated hereunder:-
Sl. Compensation under various Awarded by Awarded by
No. Heads the Claims this Court
Tribunal (in `)
(in `)
A. Pecuniary damages (Special damages):
a) Medical Expenses Nil.
b) Special Diet 10,000/- 10,000/-
c) Conveyance Charges 10,000/- 10,000/-
d) Loss of Income 21,112/- 45,000/-
e) Loss of Future Prospects 5,12,021/- 4,86,000/-
B. Non-pecuniary damages (General Damages):
a) Pain, Suffering, Inconvenience, 50,000/- 50,000/-
Frustration, Hardship and Trauma
b) Loss of Amenities, Etc. 1,00,000/- 1,00,000/-
c) Loss of Marriage Prospects, Etc 1,50,000/- 1,50,000/-
TOTAL 8,53,133/- 8,51,000/-
17. Thus, the overall compensation comes to `8,51,000/-. Therefore, it
cannot be said that the compensation awarded by the Claims Tribunal
is excessive or exorbitant.
18. The appeal therefore, has to fail; the same is accordingly dismissed
with costs.
19. Pending applications also stand disposed of.
20. Statutory amount, if any, deposited shall be refunded to the Appellant
Insurance Company after deposit of costs.
(G.P. MITTAL)
JUDGE
APRIL 15, 2015
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