Delhi High Court
Oriental Insurance Company Ltd. vs Manoj Kumar & Ors. on 13 September, 2019
KAMLESH KUMAR
06.11.2019 12:30
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 13.09.2019
+ MAC.APP. 423/2017 & CM APPL. 16382/2017
ORIENTAL INSURANCE COMPANY LTD ..... Appellant
Through: Mr. Ravi Sabharwal, Advocate.
versus
MANOJ KUMAR & ORS ..... Respondents
Through: Mr. V.K. Vashisth, Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. Issue notice.
2. The learned counsel named above accepts notice on behalf of the
insurance company. At joint request, the appeal is taken up for disposal.
3. This appeal impugns the award of compensation dated 21.02.2017
passed by the learned MACT in MACT No. 14461/15, on the ground that
instead of the standard simple interest @ 9% per annum, which has normally
been awarded by the MACTs for the last half a decade, 12% per annum
interest has been awarded on the compensation amount. The learned
Counsel for the respondent/claimant promptly agrees that the same be
brought in accordance with the prevalent rate i.e. 9%. It is so ordered.
Accordingly, the impugned order is modified to this extent and the rate of
interest shall be awarded @ 9% per annum instead of 12%.
MAC.APP. 423/2017 Page 1 of 8
4. No other ground is pressed by the appellant.
5. Respondent no. 1/claimant has filed Cross Objections to the appeal.
Let the cross-objections be numbered and registered as a separate MAC.
APP. Issue Notice. The learned counsel named above accepts notice on
behalf of the insurance company. At joint request the Cross Objections/
(MAC Appeal) is taken up for disposal.
6. It is the claimant‟s case that he has suffered 82% permanent physical
disability apropos his whole body and he should be awarded just
compensation, especially towards „loss of future prospects‟. The learned
counsel for the claimant, contends that the nature of the injury too has to be
kept in mind for awarding compensation for loss of amenities, enjoyment of
life, etc. The claimant was 32 years of age, at the time of the motor
vehicular accident. He was married, but the nature of the injury caused by
the accident, has deprived him of the enjoyment of comprehensive marital
life. PW-3, Dr. Arun Gupta of GTB Hospital had described the nature of the
injuries as under:
"E. Because the Ld. Tribunal has also not awarded any
amount towards loss of future medical expenses. It is
clarified here that the claimant examined Dr. Arun Gupta
Director of surgery GTB Hospital Delhi as PW-3 he stated
that "patient suffered serious head injury and distil (sic)
part (i.e. front part) of the penis was remove by surgical
operation and subsequent developed infection and
gangrene" thus after taking consideration of grievous
injuries and long treatment the claimant is entitled an
amount of Rs. 50,000/- towards future medical treatment."
MAC.APP. 423/2017 Page 2 of 8
7. In effect, not only would the claimant be deprived of a marital life but
his injury in the groin area would be extended injustice to his spouse. The
injury would also be a restraint upon procreation. In the circumstances, the
Court is of the view that the nature of the injury calls for an enhancement of
the compensation. Reliance is placed on the judgment of the Supreme Court
in Parminder Singh vs. New India Assurance Co. Ltd. & Ors., 2019 SCC
OnLine SC 802 which considered the case of a 22 year old injured and had
held as under:
" Given the debilitated state of the Appellant, no amount of
money can compensate him. He has been in this condition
since the age of 22 years when the accident took place, and
will remain like this throughout his life. The Appellant has
also been deprived of having a normal married life with a
family and would require medical assistance from time to
time. Being completely dependant, he would require the
help of an attendant throughout his life.
In view of these uncontroverted facts, we deem it fit and
appropriate to award a lump sum amount of Rs. 10,00,000/-
to the Appellant towards medical expenses and attendant
charges..."
8. In the circumstances, the loss of earnings would be deemed to be
100%, especially because the insured has lost complete vision in one
eye. The nature of the injury has been discussed in the impugned
order as under:
"15. PW-1/petitioner has stated in his affidavit Ex.
PW1/A that he was doing a private job in Jeans Factory
and earned about Rs. 10,000/- per month. However, no
documentary proof regarding the income of the injured
has been placed on record in respect of his earnings.
MAC.APP. 423/2017 Page 3 of 8
Petitioner has sustained grievous injuries in view of
medical records resulting into 82 %of the disability
relating to whole body. The petitioner has deposed that
he remained admit in hospital from 08.07.11 to 21.07.11
and suffered grievous injuries; he was remained admit in
hospital from 06.08.11 to 25.08.11. Due to the disability
received, certainly his carrier prospects and life has been
affected including his earning capacity. As stated, he was
doing a private job in Jeans Factory anti earned about
Rs. 10,000/- per month and in the opinion, it is difficult
for him to continue his profession keeping in view of
nature of work and injury/ age. I have gone through the
testimony of PW-2, PW-3 and PW-4 i.e. doctors who
examined the patient and issued the disability certificate.
In view of testimony of PW-4 and vide disability
certificate Ex. PW 1/ 3, the patient is suffering 82 %
permanent disability in relation to whole body; he
suffering from post traumatic quadriparesis (weakness of
all four limbs with visual disability). As deposed, the
patent suffered grievous injuries as head injury with
fracture both bones right lower limb with fracture right
clavicle with distal penile gengrene. The injured has also
complete loss of vision of right eye. The sexual life of
injured has also been effected due to injury. In the facts
and circumstances of the case and nature of disability of
the petitioner, I. assessed that due to disabilities
sustained, his capacity has been reduced restricting him
from carrying his work. Considering the evidence on
record and facts of the case, the functional disability of
the petitioner has been assessed as 82 % in relation to
his, whole body, in view of judgment of Raj Kumar V/s
Ajay Kumar & Anr. (2011) 1 SCC 343."
MAC.APP. 423/2017 Page 4 of 8
9. The learned Tribunal has awarded the following amounts:
1 Future Loss of Income Rs.10,11,072/
-
2 Towards Pain Shock & Suffering Rs. 1,00,000/-
3 Towards Loss of Amenities & Rs. 50,000/-
Enjoyment of life
4 Towards Servant/Attendant Charges Rs. 25,000/-
5 Towards Conveyance & Special diet Rs. 40,000/-
6 Towards Medical Bills Rs. 6,781/-
7 Towards Loss of Wages Rs. 38,532/-
Total Rs.
12,71,385/-
10. While the injured may have suffered 82% disability apropos the
whole body, he has functionally become virtually unemployable in the same
vocation as he was earlier employed in. He was doing a private job in a
jeans factory. The nature of the injury is such that nobody would possibly
provide him employment in a factory and he would otherwise not be able to
carry on the work, he was earlier employed for.
11. In Raj Kumar vs. Ajay Kumar & Anr., (2011) 1 SCC 343, the
Supreme Court has held inter alia:
"5. The provision of the Motor Vehicles Act, 1988 ("the
Act", for short) makes it clear that the award must be just,
which means that compensation should, to the extent
possible, fully and adequately restore the claimant to the
position prior to the accident. The object of awarding
damages is to make good the loss suffered as a result of
wrong done as far as money can do so, in a fair,
reasonable and equitable manner. The court or the
Tribunal shall have to assess the damages objectively and
exclude from consideration any speculation or fancy,
though some conjecture with reference to the nature of
disability and its consequences, is inevitable. A person is
not only to be compensated for the physical injury, but also
for the loss which he suffered as a result of such injury.
This means that he is to be compensated for his inability to
lead a full life, his inability to enjoy those normal
amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used to
earn or could have earned. [See C.K. Subramania
Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970
SC 376] , R.D. Hattangadi v. Pest Control (India) (P)
Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250]
and Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50
: (1969) 3 All ER 1528 (HL)] .]
......
...... 13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities the
claimant could carry on in spite of the permanent
disability and what he could not do as a result of the
permanent disability (this is also relevant for awarding
compensation under the head of loss of amenities of life).
The second step is to ascertain his avocation, profession
and nature of work before the accident, as also his age.
The third step is to find out whether (i) the claimant is
totally disabled from earning any kind of livelihood, or (ii)
whether in spite of the permanent disability, the claimant
could still effectively carry on the activities and functions,
which he was earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his previous
activities and functions, but could carry on some other or
lesser scale of activities and functions so that he continues
to earn or can continue to earn his livelihood.
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 per cent, 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 be 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."
12. Therefore, since the normal life of the injured has been severely
affected, the consolidated non-pecuniary compensation on account of "pain,
shock and suffering", "physical discomfort", "disappointment and stress for
the whole of his remaining life", for "loss of amenities and enjoyment of
life", etc., the awarded amount is enhanced from Rs. 6,00,000/- to Rs.
7,50,000/-. The claimant shall also be paid the reimbursement of medical
bills of Rs. 6,781/-, as well as Rs. 20,000/- for special diet and Rs. 20,000/-
for conveyance charges. Since the claimant will require some physical
assistance throughout his life, lump sum attendant charges of Rs. 2,50,000/-
has been awarded to him.
13. On the 100% functional disability there shall be an addition of 50%
towards „loss of future prospects‟ in terms of Parminder (supra).
14. In view of the above, the total amount payable shall be as under:
S.No. Particulars Amount
1. Loss of Dependency Rs.77,064/- Rs. 18,49,536/-
(minimum wage) x 16 (multiplier)
150/100 (loss of future prospects)
2. Compensation towards pain, shock Rs. 7,50,000/-
and suffering, physical discomfort,
loss of amenities and enjoyment of
life etc.
3. Attendant Charges Rs. 2,50,000/-
4. Conveyance Charges Rs. 20,000/-
5. Special Diet Rs. 20,000/-
6. Medical Bills Rs. 6,781/-
Total Rs. 28,96,317/-
15. The total payable amount would be Rs. 28,96,317/- alongwith interest
accrued thereon as mentioned in the award. Let the enhanced amount of Rs.
16,24,932/-, alongwith interest @ 9% per annum thereon, from the date of
filing of the claim petition till its realization, be deposited before the learned
Tribunal for release of the same to the beneficiary of the award in terms of
the scheme of disbursement specified therein.
16. The appeal is disposed-off in terms of the above.
17. A copy of this order be given dasti to learned counsel for both the
parties under the signature of the Court Master.
NAJMI WAZIRI, J
SEPTEMBER 13, 2019/AB
