Delhi High Court
Kailash Nagar vs Karan Singh & Ors. on 25 February, 2016
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25th February, 2016
+ MAC APPEAL No.141/2009
KAILASH NAGAR .... Appellant
Through: Mr. S.N. Parashar, Adv.
Versus
KARAN SINGH & ORS. .... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appellant, then aged 34 years, had suffered injuries in a motor
vehicular accident that occurred at about 8.45 p.m. on 17.11.2005 at bus
stand of Sikandra Road, Mandi House, New Delhi upon being hit by bus of
Delhi Transport Corporation (DTC) bearing registration No. DL1PB 1714
(the offending vehicle) statedly driven by the first respondent herein, it being
admittedly insured against third party risk by the third respondent herein. He
filed claim petition seeking compensation, inter alia, claiming that he had
suffered disability to the extent more than 70 %, on account of amputation of
the right lower limb below knee. The claim petition was registered by the
motor accident claims tribunal (the tribunal) as suit No. 91/2006 and decided
by judgment dated 3rd December, 2008 awarding compensation in the sum of
` 6,04, 720/-0 with interest @ 7 % per annum computed as under:-
"compensation on account of pain and suffering ₹ 50,000/-
Compensation on account of medicines, ₹ 25,000/-
Medical treatment
Compensation on account of conveyance ₹ 15,000/-
and special diet
compensation on account of permanent ₹ 4,14, 720/-
disability and loss of income
compensation on account of physical ₹ 50,000/-
disfigurement
compensation on account of loss of enjoyment ₹ 50,000/-
and amenity of life
Total ₹ 6,04,720/-
2. The appellant, feeling aggrieved, has come up with the appeal at hand
seeking enhancement of the compensation raising four issues:-
(i) Disability has been wrongly treated as restricted to 60 % in relation
to the whole body;
(ii) The income has been under-assessed;
(iii) The award under non-pecuniary heads of damages, viz. pain and
suffering, physical disfigurement and loss of amenities of life is on
the lower side; and
(iv) The interest awarded is inadequate
3. While it is true that the appellant in his petition had claimed that he
had suffered disability to the extent of 70-100% in relation to "working
activities", it is also true that he relied on the disability certificate (Ex.PW-
1/3) issued by medical board of Lok Nayak Hospital, Government of NCT of
Delhi stating that he has suffered 60 % permanent disability in relation to the
lower right limb which has been amputated below knee. The appellant had
been earning his livelihood as an actor in TV serials or stage performances.
Amputation of the lower right limb below knee would unduly affect his
earning capacity. But, given the nature of the task that he was performing
prior to the accident, having regard to the principles laid down in Rajkumar
vs. Ajay Kumar (2011) 1 SCC 343, it cannot be said that the functional
disability would be to the extent of 70-100 %. Thus, the tribunal is found to
have taken an appropriate view on this subject and the grievance raised
cannot be upheld.
4. On income, the tribunal considered the evidence adduced and decided
instead to adopt minimum wages of skilled worker as the benchmark on the
following reasoning:-
"Petitioner has deposed that he was an artist approved by
Doordarshan and had worked/participated/taken part in
various local films. He had also worked with Star Plus, Star
Sport, MTV DD 1, DD Bharti etc. He is a Diploma Holder in
television Arts and worked in various TV Serials. His
certificates and testimonials issued by various TV channels are
Ex.PW 1/8 to 18. At the time of accident he was earning more
than ₹ 20,000/- per month and was getting salary of ₹ 10,000/-
per month from Ranjit Studio and same are Ex. PW1/19 and 20.
To prove his salary petitioner examined PW3 Sh. Ranjit Singh.
Proprietor, Ranjit Studio, 7 Tansen Marg, Bangali Market who
deposed on oath that petitioner was temporarily employed with
him for temporary job. In fact his two serials were being
telecasted on TV and he had employed the petitioner for acting
as well as production control. He had employed the petitioner
for one year i.e. from April, 2004 to March, 2005. He also
stated that the actors like the petitioner are of ten required by
them as and when their serials is being telecasted and had the
petitioner not met with this accident he would have employed
him this time also. After going through all the documents ie.
Certificates issued by different T.V. Programmer, diploma of
petitioner regarding his artist, the income of the petitioner was
not permanent and he has not filed any permanent salary proof.
In the absence of any such proof the safest course is to resort to
the minimum wages. In November, 2005 the minimum wages of
skilled worker was ₹3,589.90 so the same is taken as
₹ 3,600/-."
5. It is noted that though he claimed that he was a diploma holder in
television arts, no such document has been produced in support. The
certificates of participation in various programmes involving engagement of
appellant in acting do not reveal the remuneration received or the periodicity
or value thereof. The certificate from M/s Ranjit Studio as brought on record
through Ranjit Singh (PW-3) cannot be accepted as a cogent proof of regular
income to the extent of ₹ 10,000/- per month for the reason the witness was
unable to furnish any record of the studio showing regular employment of the
appellant with the said entity.
6. In above facts and circumstances, the view taken by the tribunal in
assessing the income cannot be faulted.
7. This Court, however, finds that the award of compensation under the
above mentioned three non-pecuniary heads of damages is inadequate. In
Jakir Hussein vs. Sabir & Ors. (2015) 7 SCC 252 the claimant had suffered
55 % of disability due to severe compound fractures. The Supreme Court
awarded ₹ 1,50,000/- each under the heads of loss of amenities of life and
pain and agony. Noticeably, the accident in that case had occurred in
November, 2008, which is in close proximity of the accident involved in the
present case. Indeed, the physical disfigurement would unduly also have a
bearing on the continued engagement of the appellant as a stage or TV artist.
Thus, instead ₹ 50,000/- each under the above mentioned three heads,
compensation in the sum of ₹ 1,50,000/- is awarded.
8. In the result, the compensation deserves to be increased by net ₹
3,00,000/-.
9. There is merit in the contention that interest at 7 % per annum is
inadequate. Having regard to the consistent view on the subject taken by the
Supreme Court in a series of cases, the interest is increased to 9 % per annum
from the date of filing of the petition till realization. [Kaushnuma Begum vs
New India Assurance Co. Ltd. (2001) 2 SCC 9; Supe Dei vs National
Insurance Co. Ltd. (2009) 4 SCC 513; Municipal Corporation of Delhi,
Delhi vs Association of Victims of Uphaar Tragedy and Ors. (2011) 14 SCC
481; Basappa vs T. Ramesh (2014) 10 SCC 789; Syed Sadiq etc. vs
Divisional Manager, United India Ins. Company (2014) 2 SCC 735; Surti
Gupta vs United India Insurance Company and Ors. 2015 (3) SCALE 795;
Kumari Kiran vs Sajjan Singh (2015) 1 SCC 539]
10. The award is modified as above.
11. It is directed that the insurance company shall deposit the enhanced
award with the tribunal within 30 days of this judgment whereupon the said
entire deposit shall be released to the appellant (the claimant) in the form of
fixed deposit receipt in an interest bearing account in a nationalized bank in
his name for a period of 10 years with a right to draw monthly interest.
12. The appeal is disposed of in above terms.
13. The tribunal's record be returned.
R.K. GAUBA
(JUDGE)
FEBRUARY 25, 2016
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