Delhi High Court
New India Assurance Co Ltd vs Chander Shekhar & Ors on 12 January, 2015
Author: G.P. Mittal
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th January, 2015
+ MAC.APP. 64/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Abhishek Kumar, Adv.
versus
CHANDER SHEKHAR & ORS ..... Respondents
Through: Mr. Y.S. Chauhan, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
1. This appeal is directed against the judgment dated 14.10.2011 passed
by the Motor Accident Claims Tribunal (the Claims Tribunal)
whereby a compensation of Rs.14,42,826/- was awarded in favour of
Respondent No.1 for having suffered serious injuries in a motor
vehicular accident which occurred on 10.09.2005 at about 6:40 p.m. at
Liyo Chowk, Konsewar Road, Rewari, Haryana. The compensation
as computed in para 19 of the judgment is tabulated hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal (in
No. Rs.)
1. Compensation on account of pain and 10,000/-
sufferings
2. Compensation on account of 63,826/-
medicines, medical treatments and
conveyance
3. Special Diet 5,000/-
4. Compensation on account of permanent 13,44,000/-
disability and loss of income
5. Compensation on account of physical 10,000/-
disfigurement
6. Compensation on account of loss of 10,000/-
enjoyment and amenity of life
Total Rs.14,42,826/-
2. The only contention raised by the learned counsel for the Appellant
Insurance Company is that the Claims Tribunal erred in not assessing
the functional disability of Respondent no.1 and instead straightway
proceeded to award compensation on the basis of permanent disability
suffered by Respondent no.1 on the basis of Disability Certificate
Ex.PW-3/A.
3. Per contra, learned counsel for Respondent no.1 urges that
Respondent no.1 was a young person having suffered traumatic
paraparesis (# L2). Respondent no.1 lost strength in both of his lower
limbs as a result of which he cannot walk without the help of a stick,
he cannot run and he is unable to join any service including military
service where an active person is required.
4. It is urged that the Appellant remained confined to hospital for about
20 days. He remained an OPD patient for about nine months. He was
unable to join his duties for a period of about nine months. It is urged
that the compensation awarded towards conveyance /special diet is on
the lower side. No compensation was awarded towards gratuitous
services rendered by the family members.
5. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme
Court brought out the distinction between permanent disability and
functional disability resulting in loss of earning capacity. It was laid
down that compensation on account of loss of earning capacity has to
be granted in accordance with the nature of the job undertaken by the
victim of the motor accident. Paras 11 and 14 of the report are
extracted hereunder:
"11. 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 terns 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) SCC
254 and Yadava Kumar v. D.M., National Insurance Co.
Ltd. 2010 (10) SCC 341.
x x x x x x x
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual loss of
earning capacity may virtually be hundred percent, if he
is neither able to drive or do carpentry. On the other
hand, if the claimant was a clerk in government service,
the loss of his left hand may not result in loss of
employment and he may still be continued as a clerk as
he could perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in the
case of a driver or carpenter, nor 60% which is the
actual physical disability, but far less. In fact, there may
not be any need to award any compensation under the
head of 'loss of future earnings', if the claimant continues
in government service, though he may be awarded
compensation under the head of loss of amenities as a
consequence of losing his hand. Sometimes the injured
claimant may be continued in service, but may not found
suitable for discharging the duties attached to the post or
job which he was earlier holding, on account of his
disability, and may therefore be shifted to some other
suitable but lesser post with lesser emoluments, in which
case there should be a limited award under the head of
loss of future earning capacity, taking note of the
reduced earning capacity."
6. Immediately after the accident on 10.09.2005, Respondent no.1 was
removed to Birender Hospital at Loyo Chowk, Konsewas Road,
Riwari, Haryana. On the next date, i.e. , on 11.09.2005, he was shifted
to Safdarjung Hospital where he remained admitted till 30.09.2005.
Thereafter, Respondent no.1 remained an outdoor patient (OPD) for a
period of about two months. Respondent no.1 subsequently remained
an outdoor patient in Indian Spinal Injuries Centre, a Super Speciality
Hospital, where failure of the movement of his lower limbs, i.e., hips,
knee, ankles and toes and sensory was made from time to time. The
assessment made in April, 2006 as stated in OPD card dated
11.04.2006 is extracted hereunder:-
" Balance - Sit without support for good amount of time.
- Stand with support, cannot maintain his COG for
long without support.
- Sway and control in sitting.
Co-ordination - Moderately good.
Gait - Walking is possible with elbow crutches and
gaiter on right leg.
- Stair climbing with assistance."
-
7. It is not in dispute that at the time of the accident Respondent no.1 was
getting a salary of about Rs.24,326/- and after joining duty with same
company the appellant changed his job and got an employment @
Rs.35,000/- per month. It is very unfortunate that no evidence
whatsoever was brought with regard to inconvenience and impact of
the permanent disability on the day to day life of Respondent no.1. A
perusal of the OPD card dated 11.04.2006 issued by Indian Spinal
Injuries Centre, a Super Speciality Hospital and various other
documents reveal that Respondent no.1 suffered fracture of L2
vertebrae with neurological involvement. This was the reason that
hip, knee, ankle and foot movement of Respondent no.1 was affected.
So much so that movement of right ankle even after seven months of
the accident was NIL.
8. In view of this, it is evident that although Respondent no.1 was not
entitled to any compensation towards loss of future earning capacity
but he was entitled to be compensated not only for loss of income for
not attending the job or taking paid leaves but also for loss of
amenities in life, disfigurement and inconvenience. Respondent no.1
claims a compensation of Rs.85,000/- towards purchase of medicines.
He was able to produce bills for a sum of about Rs.65,000/-. The
Court can take judicial notice of the fact that all the bills cannot be
retained by a person of his relations who have suffered such a serious
injury and gets treatment in various hospitals. The compensation
awarded is hence re-computed as under:-
Sl. Compensation under various Awarded by this
No. heads Court (in Rs.)
1. Loss of income for nine months 2,16,000/-
(24,000/- x 9)
2. Pain and suffering 75,000-
3. Conveyance 25,000/-
4. Special Diet 25,000/-
5. Loss of amenities in life, Loss of 2,00,000/-
enjoyment and on account of
permanent disability
6. Gratuitous service rendered by the 40,000/-
family members @ Rs.5,000/- for
eight months
Total Rs.5,81,000/-
9. The compensation awarded is accordingly reduced from
Rs.14,42,826/- to Rs.5,81,000/- which shall carry interest @ 7.5% per
annum as awarded by the Claims Tribunal.
10. Eighty per cent of the compensation amount was ordered to be
deposited in Court vide order dated 17.01.2012 and 60% from the
same was ordered to be released by order dated 30.04.2013. Excess
amount released to Respondent no.1 shall be refunded to the
Appellant. Remaining amount shall also be released in favour of the
Appellant.
11. The Appeal is allowed accordingly.
12. Pending applications, if any, also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 12, 2015
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