Delhi High Court
Mrs. Chanderma vs Balinder Singh & Ors. on 14 January, 2015
Author: G.P. Mittal
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th January, 2015
+ MAC.APP.912/2012
MRS. CHANDERMA ..... Appellant
Through: Mr. Manish Maini, Adv.
versus
BALINDER SINGH & ORS. ..... Respondents
Through: Ms. Suman Bagga, Adv. with
Mr. Pankaj Gupta, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
1. By way of this appeal, the Appellant seeks enhancement of
compensation of Rs.7,90,978/- awarded by the Motor Accident Claims
Tribunal (the Claims Tribunal) to the Appellant for having suffered
injuries in a motor vehicular accident which occurred on 20.11.2010 at
10:30 a.m.
2. On appreciation of evidence, the Claims Tribunal found that the
accident occurred due to rash and negligent driving of bus bearing
registration no.DL-1PB-6534 by Respondent no.1 Balinder Singh.
Immediately after the accident, the Appellant was removed to Dr. Ram
Manohar Lohia Hospital (RML). There were crush injuries on left
hand and the left hand (palm and fingers) had to be amputated.
3. It is the case of the of the Appellant that the Appellant remained away
from work for 45 days. She was issued a disability certificate Ex.PW-
2/A showing that the Appellant had suffered disability to the extent of
80% in respect of her left upper limb. Following contentions are
raised on behalf of the Appellant:-
(i) The Appellant was working as a maid servant. Her loss of
earning capacity ought to have been taken as 100% as against
72% taken by the Claims Tribunal;
(ii) The Claims Tribunal awarded compensation on the basis of
minimum wages of unskilled worker. However, as a maid
servant, she ought to have been considered a skilled worker;
(iii) No compensation has been awarded for the period of 45 days
for which she remained away from work;
(iv) Future prospects have not been taken into consideration and no
addition in that respect has been made by the Claims Tribunal;
and
(v) The compensation awarded towards non pecuniary damages is
on the lower side.
4. On the other hand, Ms. Suman Bagga, Advocate, appearing for
Respondent no.3 Insurance Company submits that the compensation
awarded is just and reasonable. It is urged that the disability of 72%
taken because of the amputation of left hand is on the higher side.
5. In Arvind Kumar Mishra v. New India Assurance Company Limited,
(2010) 10 SCC 254, the Supreme Court while dealing with a case of
disability on account of permanent disability observed that in personal
injury cases, an attempt should be made to put the injured in the same
position as he was as far as money is concerned. In para 9 of the
report, the Supreme Court held as under:
"9. We do not intend to review in detail state of
authorities in relation to assessment of all damages for
personal injury. Suffice it to say that the basis of
assessment of all damages for personal injury is
compensation. The whole idea is to put the claimant in
the same position as he was insofar as money can.
Perfect compensation is hardly possible but one has to
keep in mind that the victim has done no wrong; he has
suffered at the hands of the wrongdoer and the court
must take care to give him full and fair compensation for
that he had suffered."
6. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka &
Ors., (2009) 6 SCC 1, the Supreme Court emphasised that cases of
serious injuries in motor vehicle accident are worse than death cases
because the victim and his family suffer throughout life. Para 90 of
the report is extracted hereunder:-
"90. At the same time we often find that a person
injured in an accident leaves his family in greater
distress vis-à-vis a family in a case of death. In the latter
case, the initial shock gives way to a feeling of
resignation and acceptance, and in time, compels the
family to move on. The case of an injured and disabled
person is, however, more pitiable and the feeling of hurt,
helplessness, despair and often destitution enures every
day. The support that is needed by a severely
handicapped person comes at an enormous price,
physical, financial and emotional, not only on the victim
but even more so on his family and attendants and the
stress saps their energy and destroys their equanimity."
7. 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 the loss of earning capacity. It was
laid down that the compensation on account of loss of earning
capacity has to be granted with accordance with the nature of the job
undertaken by the victim of 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."
8. Considering that the Appellant was working as a maid servant, the
Claims Tribunal took the loss of earning capacity as 72%. It is urged
by the learned counsel for the Appellant that both hands are needed to
do such job. I fully agree with the learned counsel for the Appellant
that a person would need both hands to do this menial job. At the same
time, primarily the menial work is carried out with the right hand. In
my view, the Claims Tribunal was quit liberal in taking loss of earning
capacity as 72%. At the same time, I am not inclined to interfere with
the same.
9. As far as future prospects are concerned, this Court while relying on
Reshma Kumari & Ors. v. Madan Mohan & Anr. (2013) 9 SCC 65 in
New India Assurance Company Ltd v. Harpal Singh & Ors., MAC
APP.138/2011, decided on 06.09.2013 and HDFC Ergo General
Insurance Co Ltd. v. Smt Lalta Devi & Ors, MAC.APP. 189/2014,
decided on 12.01.2015 has held that future prospects cannot be
granted where a person is getting fixed wages. In view of this, the
Appellant will not be entitled to any increase towards future prospects.
10. The Appellant had suffered serious injuries on her left hand as a result
of which her left hand had to be amputated. The Appellant claimed
that she was away from work for a period of about 45 days. She ought
to have been awarded the wages for the period of 45 days. I
accordingly award a sum of Rs.8100/-.
11. A compensation of Rs.25,000/- awarded towards loss of amenities is
also on the lower side. At the same time, it was held in Raj Kumar
(supra) that where substantial compensation is awarded towards loss
of earning capacity, lower compensation should be awarded towards
non-pecuniary damages.
12. In view of this, I award a compensation of Rs.1,00,000/- towards loss
of amenities and Rs.50,000/- towards disfigurement.
13. The overall compensation is tabulated as under:-
Sl. Compensation under various Awarded by Awarded by
heads the Claims this Court (in
No. Tribunal (in Rs.)
Rs.)
1. Medicines and Treatment 6950/- 6950/-
2. For loss of earning on account 6,84,028/- 6,84,028/-
of disability
3. Pain and suffering 50,000/- 50,000/-
4. Conveyance & Special Diet 25,000/- 25,000/-
5. Loss of amenities, inconvenience 25,000/- 1,00,000/-
6. Wages for 45 days (Rs.180 x 45) -- 8100/-
7. Disfigurement -- 50,000/-
Total Rs.7,90,978/- Rs.9,24,078/-
14. The compensation is accordingly enhanced from Rs.7,90,978/- to
Rs.9,24,078/-.
15. The enhanced compensation of Rs.1,33,100/- shall carry interest @
7.5% per annum from the date of filing of the petition till its payment.
16. Respondent no.3 Insurance Company is directed to deposit the
enhanced compensation along with proportionate interest within four
weeks in UCO Bank, Delhi High Court, New Delhi.
17. 75% of the enhanced compensation awarded shall be held in fixed
deposit for a period of two years, four years and six years in equal
proportion. Rest shall be released to the Appellant on deposit.
18. The appeal is allowed in above terms.
19. Pending applications, if any, also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 14, 2015
vk
