Delhi High Court
National Insurance Co Ltd. vs Salma Farheen & Ors on 20 February, 2015
Author: G.P. Mittal
$-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 20th February, 2015
+ MAC.APP. 633/2012
NATIONAL INSURANCE CO LTD.
..... Appellant
Through: Mr.Manoj Ranjan Sinha,
Advocate with Mr. Vikas
Singh, Advocate
versus
SALMA FARHEEN & ORS ..... Respondents
Through: Mohd. Elahi, Advocate for
Respondent 1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is for reduction of compensation of Rs.41,30,100/-
awarded by the Motor Accident Claims Tribunal(the Claims
Tribunal) in favour of a young girl Salma Farheen, who suffered
serious injuries in her right lower limb and brain in a motor
vehicular accident which occurred on 16.09.2006.
2. It is urged by the learned counsel for the Appellant that there
was only 50% disability in respect of the claimant's left lower
limb. There is moderate level mental disability. The Claims
Tribunal erred in assessing loss of earning capacity to the extent
of 90%. It is urged that the Claims Tribunal erred in taking the
loss of projected income of Respondent no.1 as Rs.15,000/- per
month. It is stated that the compensation awarded towards non-
pecuniary damages is also on the higher side.
3. The compensation awarded by the Claims Tribunal is tabulated
hereunder:
Sl. Compensation under various Awarded by the
No. heads Claims
Tribunal
(in Rs.)
1. Compensation for Pain & 2,00,000/-
Suffering
2. Compensation for Expenses 2,99,737/-
incurred on Medical Treatment,
Special Diet, Conveyance and
Attendant Charges
3. Compensation on account of Loss Nil
of Income during treatment.
4. Compensation on account of 29,16,000/-
Future Loss of Earning Capacity
due to Disability
5. Compensation on account of Loss 1,50,000/-
of Enjoyment of Amenities of Life
on account of Permanent as well
as Mental Disability
6. Compensation on account of 2,00,000/-
Inconvenience, Hardship,
Discomfort,Disappointment,
Frustration and Mental Stress in
Life
7. Compensation on account of 2,00,000/-
Reduction of Marriage Prospects
8. Compensation on account of 1,64,363/-
wasting of Fees already deposited
TOTAL 41,30,100/-
4. The compensation under item 2 'Compensation for Expenses
incurred on Medical Treatment, Special Diet, Conveyance and
Attendant Charges‟ comprised of a sum of Rs.2,47,737/-
towards cost of treatment, Rs.5,000/- towards special diet,
Rs.7,000/- towards conveyance charges and Rs.40,000/-
towards attendant charges.
5. While dealing with the aspect of potential income of
Respondent no.1, the Claims Tribunal observed as under:
"To compensate under this head, I will have to
assume the annual income of petitioner in this case as
she was not working at the time of her accident being
student. The second schedule specifies Rs.15,000/per
annum to be assumed as income in the case of
nonworking victims. However, I find this wholly
inadequate in the present time. Moreover, petitioner
was a student of B.A Program in St. Stephen College.
She was also doing two years course of Global
Aviation and Hospitality Management diploma from
Air Hostess Academy Pvt Ltd and was studying in the
final year of the said course at the time of her
accident. PW 3 Om Prakash Jha has been examined
from Air Hostess Academy Pvt Ltd, who has proved
these facts. He has also proved that students after
passing out get jobs in Hotel and Airlines and initial
starting pay in Hotels is around Rs. 15,000/-while in
Airlines, it is around Rs. 25,000/. PW 7 Sh. Khem
Singh, Clerk, St. Stephen College, Delhi University
has also been examined and has proved the fact that
petitioner had taken admission in St. Stephen College
in B.A Program in the year 2005-2006 and had
completed one year and had been promoted to second
year and thereafter, she stopped attending.
Considering all these facts, I am of the view that
petitioner seemed to be setting for a successful future
had she not met with accident. Therefore, considering
all contingencies, calamities and disadvantages that
may have occurred in the petitioner's normal future
into account, I take annual income of the petitioner as
Rs.1,80,000/- which is reasonable for the purpose of
future loss of earning capacity due to disability."
6. Respondent no.1 Salma Farheen was a brilliant student having
excellent academic record. She was a student of St. Stephens
College studying in IInd year. Her performance in B.A. Ist year
was quite good. In spite of the fact that she was also pursuing
Arts stream, in addition Respondent no.1 was also pursuing a
professional course in Air Hostess Academy as she wanted to
become an Air Hostess. Admittedly, Respondent no.1 did not
have any income on the date of the accident. It is well settled
that potential income of a student, particularly pursing
professional course must be taken into consideration to award
loss of earning capacity or loss of dependency.
7. In the case of Haji Zainullah Khan (Dead) by LRs. v. Nagar
Mahapalika, Allahabad, 1994 (5) SCC 667, death of a young
boy aged 20 years took place in an accident which happened in
the year 1972. The deceased was a student of B.Sc Ist year
(Biology) and a compensation of Rs.1,46,900/- was granted
which was increased and rounded off to Rs.1,50,000/-.
8. In Ganga Devi & Ors. v. New India Assurance Co. Ltd. & Ors.,
MAC APP. 359/2008, decided by this Court on 23.11.2009,
which related to the death of a student (studying medicine) who
was doing internship and was to be awarded the MBBS degree
in a short time, the Tribunal awarded a compensation of Rs.
9,35,352/- on the basis of the minimum wages of a Graduate.
This Court observed that although the deceased was getting a
stipend of Rs.5,000/- per month at the time of his death due to
the accident, he would have ultimately joined as a doctor at a
salary ranging between Rs. 16,000/- per month to Rs. 25,000/-
per month. Thus, the average monthly income of the deceased
was taken as Rs. 18,000/- per month and after adding 50%
towards future prospects, the compensation was enhanced to Rs.
21,36,000/-.
9. In Ramesh Chand Joshi v. New India Assurance Company,
MAC APP.212-213/2006 decided on 20.01.2010, this Court
took the potential income of a BE (Bio-Technology) first year
student of Delhi College of Engineer (DCE) as Rs.38,333/- per
month.
10. The gross salary of a Group 'A' officers in the Central and the
State Govt. on the date of the accident i.e. 19.11.2004 on the
basic pay of Rs.8,000/- was Rs.17,980/- per month. If a
qualified degree holder Engineer joined Govt. service in the
year 2004, he would have got a salary of Rs.8,000/- per month
plus all allowances. Also the placements in Private Sectors were
on a much higher salary.
11. This accident took place on 16.09.2006. I will compare the
potential income of Respondent no.1 to any Group 'A' Officer
in the Government. In the year 2006, the salary of a Group 'A'
employee was about Rs.20,000/- per month. To my mind, the
Claims Tribunal was very conservative in taking the potential
income of Respondent no.1 to be Rs.15,000/- per month. The
same is raised to Rs.20,000/- per month taking into
consideration the fact that Respondent no.1 was a student of St.
Stephen College and was also pursuing a professional course in
Air Hostess Academy.
12. Apart from the fact that Respondent no.1 suffered 50%
permanent disability in respect of her left lower limb, she also
suffered moderate level mental disability. The Claims Tribunal
dealt with the loss of earning capacity of Respondent no.1 as
under:
"In view of the principle enumerated in the
abovesaid case law, I have to assess the future loss of
earning capacity due to permanent physical disability
as well as mental disability.
As per permanent disability certificate Ex. PW
11/1, petitioner has suffered 50% permanent physical
disability in respect of movement of right knee.
Disability refers to any restriction or lack of ability to
perform activities in the manner considered normal
for a human being. Where the claimant suffered
permanent disability as a result of injuries,
assumption of compensation under this head would
depend on the effect and impact of such disability on
earning capacity. I have to consider the effect of the
disablement of right lower limb of petitioner and the
functioning of the entire body. In my view, this
permanent physical disability would certainly effect
the earning capacity of petitioner in future in some
way or other. Therefore, I take functional disability of
petitioner as 20% on account of 50% permanent
physical disability suffered by petitioner in respect of
movement of right knee.
It is submitted by counsel for petitioner that she
has suffered mental disability as mentioned in
disability certificate Ex. PW12/1 issued by Medical
board, constituted by IHBAS. He has further stated
that because of permanent mental disability,
petitioner cannot do any kind of job/work. On the
other hand, counsel for insurance company submits
that evidence of petitioner was recorded after a
considerable period of accident and she was able to
depose and answer to each and every question
without any difficulty and hence, she cannot be taken
to have suffered any mental disability.
I considered the submissions of counsel for
petitioner and counsel for insurance company as
above. I also gone through the evidence on this point.
I have gone through the permanent disability
certificate Ex. PW 12/1 issued by Medical board,
IHBAS and it has been opined by medical board that
patient has organic personality disorder (post head
injury squalae) and the neuropsychological
assessment revealed moderate impairment in frontal
and parietal lobe functions and mild impairment in
temporal lobe functions along with neurological
impairments and all these findings contributed to
moderate level of disability.
PW 12 Dr. Vijender Singh, Associate Professor
of Psychiatry, IHBAS, Delhi, was examined who was
one of the members of medical board which had
issued the mental disability certificate Ex. PW 12/1.
He has stated that "There is no specific
instrument/scale to quantify the percentage of mental
disability in such cases". He has further stated that
"However, the quantum of disability may be broadly
classified as Mild, Moderate or Severe". He has
further stated that "Under Moderate condition,
patient can take care of herself or himself, as the case
may be". He has further stated that "Patient can eat,
can rest and can bath, herself or himself, as the case
may be without any assistance. He has further stated
that "Under this condition, patient cannot do complex
transaction like traveling, money transaction, bank
a/c operation, without any assistance". During cross
examination, he has stated that "Patient cannot do
complex tasks alone and without any assistance". He
has further stated that "However, she can perform the
simpler tasks like that of peon."
13. Thus, from the testimony of the Doctor examined by
Respondent no.1, particularly PW-12 Dr. Vijender Singh, it is
evident that Respondent no.1 who suffered moderate mental
disability can now perform only simpler tasks, like she can eat,
bath, rest etc. without any assistance from a third person.
However, she cannot perform complex transactions like
travelling, money transactions, bank account operations etc.
without any assistance. Although PW-12 admitted that
Respondent no.1 will be in a position to perform simpler task
like that of a Peon but with her qualification and background
when she wanted to become an Air Hostess and was midway in
the goal, she cannot be compelled to work as a Peon. Taking
into account the mental disability suffered by Respondent no.1
when she cannot perform complex things, it shall be assumed
that her loss of earning capacity was 100% as against 90%.
The loss of earning capacity thus, comes to Rs.41,22,000/-
(Rs.20,000/- x 12 - Rs.11,000/-(Income Tax) x 18)
14. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, it was
laid down that when any compensation towards loss of earning
capacity of more than 50% is awarded, the compensation of
loss of amenities and loss of expectancy of life would be
duplication of the award. Similarly, the award of compensation
on account of wasting of fee will also amount to duplication
when full compensation is being awarded towards loss of
earning capacity.
15. The theory of not awarding compensation more than the amount
claimed got a sea change with the judgment of the Supreme
Court in Nagappa v. Gurudayal Singh & Ors., (2003) 2 SCC
274, wherein the Supreme Court held that there is no restriction
that compensation could be awarded only up to the amount
claimed by the Claimant. In an appropriate case where from the
evidence brought on record, if the Tribunal/Court considers that
the claimant is entitled to get more compensation than claimed,
the Tribunal may pass such an award. The Supreme Court said
that the only embargo was that it should be „just‟ compensation,
that is to say, it should be neither arbitrary or fanciful nor
unjustifiable. Para 21 of the report is extracted hereunder:
"21. In our view, under the M.V. Act, there is no
restriction that Tribunal/Court cannot award
compensation amount exceeding the claimed amount.
The function of the Tribunal/Court is to award „just‟
compensation which is reasonable on the basis of
evidence produced on record. Further, in such cases
there is no question of claim becoming time barred or it
cannot be contended that by enhancing the claim there
would be change of cause of action. It is also to be
stated that as provided under Sub-section(4) to Section
166, even report submitted to the Claims Tribunal under
Sub-section (6) of Section 158 can be treated as an
application for compensation under the M.V. Act, If
required, in appropriate cases, Court may permit
amendment to the claim Petition."
16. In National Insurance Company Ltd. v. Rani, 2006 ACJ 1224, a
Division Bench of the Madras High Court held that without
filing any Appeal or Cross-Objections, the High Court is
competent to enhance the compensation in favour of a victim of
a motor vehicle accident by invoking provisions of Order XLI
Rule 33 of the Code of Civil Procedure, 1908 (CPC). Para 16
of the report is extracted hereunder:
"16. At the risk of repetition it may be stated that the
contention put forward is that the Court is duty bound to
fix the just compensation. The fact that the Claimants
have not filed any cross objection would not stand in the
way and further the Court can by invoking the powers
conferred under Order XLI Rule 33 of CPC, is satisfied,
can enhance the compensation and call upon the
Claimants to pay necessary court fee. In that context, the
learned counsel also submitted, when the Supreme Court
has ruled that even at the appellate stage original
petition can be amended claiming enhanced
compensation, the Court enhancing compensation in the
instant case, if satisfied, invoking powers under Order
XLI, Rule 33 will certainly be in order."
17. Further, in Oriental Fire and General Insurance Co. Ltd. v.
Amarsingh Pratapsingh Sikliker, 1(1993) ACC 627, a Division
Bench of Gujarat High Court held that the Appellate Court was
empowered to grant adequate compensation so as to do
substantial justice between the parties even in absence of Cross-
Objections or Appeal. Para 17 of the report is extracted
hereunder:
"17. It becomes very clear from the aforesaid
provisions that the appellate Court is empowered to
grant adequate relief so as to do substantial justice
between the parties even in absence of cross-objections
or appeal...."
18. Similarly, in Sone Ram v. Jayaprakash, AIR 1986 MP 21, the
High Court of Madhya Pradesh exercising power under Order
XLI Rule 33 of the CPC enhanced the compensation granted by
the Claims Tribunal even though no Appeal was preferred by
the Claimant. In the case of Sewaram alias Sewan v. Nanhe
Khan alias Asgar Beg, 1987 ACJ 354(MP) also, the High Court
of Madhya Pradesh awarded 10% interest on the compensation
amount in the absence of any Appeal or Cross-Objections by
the Claimants.
19. A learned Single Judge of this Court in National Insurance Co.
Ltd. v. Komal & Ors., MANU/DE/2870/2012, (MAC. APP.
No.595/2007 decided on: 27.04.2012) referred to the judgments
of the Supreme Court in Pannalal v. State of Bombay, AIR 1963
SC 1516; Rameshwar Prasad v. M/s Shyam Beharilal
Jagannath, (1964) 3 SCR 549; Nirmal Bala Ghose v. Balai
Chand Ghose, AIR 1965 SC 1874; Giasi Ram v. Ramjilal, AIR
1969 SC 1144; Harihar Prasad Singh v. Balmiki Prasad Singh,
(1975) 2 SCR 932; Mahant Dhangir v. Madan Mohan, (1988) 1
SCR 679; State of Punjab v. Bakshish Singh, (1999) 8 SCC 222
and judgments of various High Courts to opine that the High
Court is empowered to enhance the compensation without filing
any Appeal or Cross-Objections by a Claimant.
20. In Ibrahim v. Raju, AIR 2012 SC 534, a compensation of
Rs.3,00,000/- was claimed by the Appellant which resulted in
an award of Rs.60,000/- by the Claims Tribunal. The
compensation was enhanced to Rs.1,89,440/- by the High
Court, which was enhanced to Rs.6,00,000/- by the Supreme
Court. Para 21 of the report is extracted hereunder:
"21. We are conscious of the fact that in the petition filed
by him, the Appellant had claimed compensation of Rs. 3
lacs only with interest and cost. It will be reasonable to
presume that due to financial incapacity the Appellant
and his family could not avail the services of a competent
lawyer and make a claim for adequate compensation.
However, as the Tribunal and the High Court and for
that reason this Court are duty bound to award just
compensation, (emphasis supplied) we deem it proper to
enhance the compensation from Rs. 1,89,440/- to Rs. 6
lacs. This approach is in tune with the judgment in
Nagappa v. Gurudayal Singh, (2003) 2 SCC 274. In that
case, the Court considered a similar issue, referred to the
judgments of the Bombay High Court in Municipal
Corporation of Greater Bombay v. Kisan Gangaram
Hire, 1987 ACJ 311(Bombay), Orissa High Court in
Mulla Mod. Abdul Wahid v. Abdul Rahim,1994 ACJ 348
(Orissa) and Punjab and Haryana High Court in Devki
Nandan Bangur v. State of Haryana, 1995 ACJ 1288 (P
& H)."
21. In New India Assurance Co. Ltd. v. Gopali & Ors., Civil Appeal
No.5179 of 2012 (arising out of SLP (C) No.11345 of 2007)
decided by the Supreme Court on 05.07.2012, the New India
Assurance Co. Ltd. challenged an award of compensation of
Rs.6,45,300/-. The compensation was, however, enhanced to
Rs.10,63,040/- by the Supreme Court.
22. The compensation is thus, recomputed as under:
Sl. Compensation under various Awarded by Awarded by
heads the Claims this Court
No. Tribunal
1. Compensation for Pain & 2,00,000/- 2,00,000/-
Suffering
2. Compensation for Expenses 2,99,737/- 2,99,737/-
incurred on Medical Treatment,
Special Diet, Conveyance and
Attendant Charges
3. Compensation on account of 29,16,000/- 41,22,000/-
Loss of Earning Capacity
4. Compensation on account of 1,50,000/- 50,000/-
Loss of Enjoyment of Amenities
of Life on account of Permanent
as well as Mental Disability
5. Compensation on account of 2,00,000/- 50,000/-
Inconvenience, Hardship,
Discomfort,Disappointment,
Frustration and Mental Stress in
Life
6. Compensation on account of 2,00,000/- 2,00,000/-
Reduction of Marriage
Prospects
7. Compensation on account of 1,64,363/- Nil
wasting of Fees already
deposited
TOTAL 41,30,100/- 49,21,737/-
23. The compensation is therefore, enhanced by Rs.7,91,637/-
which shall carry interest @ 7.5% per annum from the date of
filing of the claim petition till its payment.
24. 80% of the enhanced compensation shall be held in Fixed
Deposit for a period of five, ten and fifteen years. Rest shall be
released on deposit. Respondent no.1 shall be entitled to
quarterly interest on the amount held in fixed Deposit.
25. The Appellant Insurance Company is directed to deposit the
enhanced compensation along with interest in the name of
Respondent no.1 in UCO Bank, Delhi High Court Branch, New
Delhi within six weeks, failing which the enhanced
compensation shall carry interest @ 12% per annum from the
date of this judgment.
26. The appeal is disposed of in above terms.
27. Pending applications also stand disposed of.
28. Statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
29. Copy of the judgment be given Dasti to the parties.
(G.P. MITTAL)
JUDGE
FEBRUARY 20, 2015
pst
