Delhi High Court
Sudeep vs The Oriental Insurance Company ... on 24 November, 2022
NEUTRAL CITATION NO: 2022/DHC/005138
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 04.11.2022
Pronounced on: 24.11.2022
+ MAC.APP. 337/2013
SUDEEP ..... Appellant
Through: Mr. Pushpendra Kumar and
Mr. Kuldeep Singh, Advocates
versus
THE ORIENTAL INSURANCE
COMPANY LTD. & ORS. ..... Respondents
Through: Mr. R. K. Tripathi, Advocate
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
JUDGMENT
GAURANG KANTH, J.
1. The present appeal has been preferred by the Appellant under
Section 173 of the Motor Vehicles Act, 1988 against the award
dated 21.11.2012 passed by Motor Accidents Claims Tribunal
(hereinafter referred to as "Impugned Award".
2. By way of the impugned Award dated 21.11.2012, the learned
Claims Tribunal Awarded a compensation of Rs. 2,74,336/- with
interest at the rate of 7.5% per annum, out of which an amount of
Rs. 25,000/- was awarded vide an interim award. Respondent No
1, The Oriental Insurance Company Ltd, was liable to pay the
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DHIRANIA
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NEUTRAL CITATION NO: 2022/DHC/005138
awarded amount along with the prescribed interest from the date
of filing of the claim petition, i.e. 23.01.2012 till its realisation.
3. On 21.08.2011, the Appellant, Mr. Sudeep was hit by the
offending vehicle while he was driving his motorcycle bearing No
DL-4S-AG-7140. The point of collision was the front tyre of the
motorcycle of the victim which resulted in him falling off his bike.
The Appellant had suffered a fracture in the lower end of his right
tibia and remained admitted in the hospital until 26.08.2011 where
he underwent a surgery to insert a plate and nail in his leg.
4. Mr. Vikram Singh Sood, Respondent No 2 and Mr. Rajesh Kumar,
Respondent No 3 were identified as the driver and owner of the
offending vehicle respectively. Thus a claim was raised before the
learned Claims Tribunal where the following issues were framed:-
"1) Whether the petitioner received injuries in an accident on
21.08.11 caused by respondent No. 1 while driving motorcycle
bearing No. DL-4S-BL-9131 rashly and negligently? OPP
2) If yes, what is the amount of compensation which the claimant
is entitled to receive and from which respondent? OPP
3) Relief."
5. Learned Claims Tribunal awarded compensation under the
following heads.
S.No Head Compensation
Pain and Suffering Rs. 30,000/-
Loss of wages during Rs. 24,336/-
treatment (3 months)
Loss of Opportunity Rs. 2,00,000/-
Special Diet Rs. 7,500/-
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DHIRANIA
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Conveyance Expenses Rs. 7,500/-
Attendant Charges Rs. 5,000/-
TOTAL Rs. 2,74,336/-
6. Discontented with the amount awarded by the learned Claims
Tribunal, the present Appeal has been filed praying for a
compensation of Rs. 1,00,00,000/- along with an interest of 12%
per annum from the date of filing to its realization.
SUBMISSIONS ON BEHALF OF THE APPELLANT
7. Mr. Pushpendra Kumar, learned counsel appearing for the
Appellant had made submissions seeking an enhancement of
compensation under the head „Loss of opportunity‟.
8. Mr. Pushpendra Kumar, learned counsel for the Appellant,
contended that amount awarded towards loss of opportunity is
meagre in comparison to the nature of job that the Appellant
would have been entitled to if the accident had not occurred. It
was his case that the Appellant was qualified for an appointment
with the Indo-Tibetan Border Police as a Hindi translator in the
rank of Inspector. He had passed the written examination and
interview but failed in medical examination due to the injuries
suffered by him in the accident. The pay scale of Inspector in
ITBP as on today is Rs. 44,900-1,42,400/- (as per 7th pay scale)
and thus the learned Claims Tribunal erred in awarding meager
compensation of Rs. 2 lakhs under the head „Loss of opportunity‟.
9. Learned counsel for the Appellant further contended that the
detailed re-medical examination conducted by the ITBP on
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22.10.2011 in Appendix C determines the Appellant to be unfit
due to the fracture in the lower end of his right tibia. Thus, the
Appellant lost this job opportunity solely due to the gross
negligence of Respondent No 2. It was also averred that the
economic productivity of the Appellant has been reduced to zero.
10.With this submission, learned counsel for the Appellant prayed for
the enhancement of compensation under the head „Loss of
opportunity‟.
SUBMISSION ON BEHALF OF THE RESPONDENT
11.Mr. R.K Tripathi, learned counsel appearing for the Respondent
argued in support of the impugned award. It is the submission of
the learned Counsel for the Respondent that the Appellant herein
failed to produce any documentary evidence to substantiate his
case. Hence in the absence of any evidence, the learned Claims
Tribunal rightly granted the compensation to the Appellant and it
does not require any interference from this Court.
12.Learned counsel for the respondent further submits that the
learned Clams Tribunal granted Rs. 2,00,000/- to the appellant
under the head „loss of opportunity‟ as the Appellant could not
clear the medical examination conducted by the ITBP. It is the
submission of the learned Counsel for the Respondent that the
appellant has not suffered any permanent disability. The amount
awarded by the learned Claims Tribunal under this head is on a
higher side. Learned counsel for the Respondent also prays for
reduction in the interest rate.
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DHIRANIA
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13.With these submissions, learned counsel for the Respondent prays
for the dismissal of the present Appeal.
LEGAL ANALYSIS
14.This Court heard the arguments advanced by the learned counsel
for the parties and examined the documents and the Judgments
relied upon by the parties.
15.The Hon‟ble Supreme Court‟s judgement in Raj Kumar Vs Ajay
Kumar and Anr, reported as (2011) 1 SCC 343 which is a guiding
case on the compensation in injury cases, states as follows:-
"The provision of the Motor Vehicles Act, 1988 (`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 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.
Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376,
R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC
551 and Baker vs. Willoughby - 1970 AC 467).
6. The heads under which compensation is awarded in personal
injury cases are the following :
Pecuniary damages (Special Damages)
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(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent
disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of
the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded
only under heads (i), (ii)(a) and (iv). It is only in serious cases of
injury, where there is specific medical evidence corroborating the
evidence of the claimant, that compensation will be granted under
any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future
earnings on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects of marriage)
and loss of expectation of life.
7. Assessment of pecuniary damages under item (i) and under item
(ii)(a) do not pose much difficulty as they involve reimbursement
of actuals and are easily ascertainable from the evidence. Award
under the head of future medical expenses - item (iii) -- depends
upon specific medical evidence regarding need for further
treatment and cost thereof. Assessment of non-pecuniary damages
- items (iv), (v) and (vi) -- involves determination of lump sum
amounts with reference to circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant and the effect
thereof on the future life of the claimant. Decision of this Court
and High Courts contain necessary guidelines for award under
these heads, if necessary. What usually poses some difficulty is the
assessment of the loss of future earnings on account of permanent
disability - item (ii)(a). We are concerned with that assessment in
this case. Assessment of future loss of earnings due to permanent
disability"
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(emphasis supplied)
16. Based on the dicta in Raj Kumar (Supra), it evident that no
compensation can be granted under the head „Loss of
Opportunity‟. Hence this Court is of the considered view that the
learned Claims Tribunal erred in granting compensation under the
head „Loss of Opportunity‟
17.This Court further notes that the learned Claims Tribunal has not
granted any compensation under the head „Loss of future
earnings‟. The head „Loss of future earnings‟ may be akin to the
compensation that the learned Claims Tribunal intended to award
under „Loss of Opportunity‟.
18.In the present case, the Appellant lost his opportunity to join ITBP
due to his medical disability. Hence it is evident that the Appellant
suffered permanent disability. However, the Appellant has not
produced any evidence to prove the percentage of his permanent
disability.
19. In order to determine the compensation under the head „Loss of
future earnings‟, it is important to have the medical opinion. The
Appellant in his Affidavit stated that he could not produce the
permanent disability certificate as the said certificate will be
issued only after 2 years. This matter is pending before this Court
for almost 9 years. However, the Appellant failed to lead any
evidence in this regard.
20.However, this Court deems it appropriate to summon Dr. R.K
Kapoor/ Dr. Jagjit Singh from Mata Chanan Devi Hospital, C-1,
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Janak Puri, New Delhi to ascertain the permanent disability of
Appellant.
21.Issue notice to Dr. R.K Kapoor/ Dr. Jagjit Singh, Mata Chanan
Devi Hospital, C-1, Janak Puri, New Delhi returnable on
22.12.2022 before the Joint Registrar for recording of the
evidence.
22.Let this matter be listed before the Court after recording of
evidence.
GAURANG KANTH, J.
NOVEMBER 24, 2022
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Digitally Signed By:RITU
DHIRANIA
Signing Date:29.11.2022
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