Delhi High Court
Sh Govind Lal Wadhwa vs Mohd Mohsim & Ors on 20 September, 2022
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 31.08.2022
Pronounced on: 20.09.2022
+ MAC.APP. 1141/2013 and C.M. No. 20555/2022 (for
summoning of witness)
SH GOVIND LAL WADHWA ..... Appellant
Through: Mr. Manish Maini, Advocate.
versus
MOHD MOHSIM & ORS ..... Respondents
Through: Ms. Archana Gaur, Advocate for
R-3/Insurance Company.
CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH
JUDGMENT
GAURANG KANTH, J.
1. This appeal has been filed by the Appellant to modify the
compensation awarded on certain accounts by the MACT Judge vide
the judgment dated 05.08.2013 (hereinafter referred to as the
"Impugned Award") in Suit No. 419/13/08 titled as Sh. Govind Lal
Wadhwa Vs. Mohd. Mohsin & Ors. whereby the Appellant was
awarded an amount of Rs. 4,66,561/- as compensation with interest
@9% per annum, from the date of filing of the suit, i.e. 02.01.2008, till
the payment is made by respondent No.3/Insurance Company within
30 days from the date of the Impugned Award alongwith accrued
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interest with the right to the respondent No.3/Insurance Company to
recover the same jointly from the respondent Nos. 1 and 2.
2. The facts germane to the present appeal as noted by the Tribunal are as
follows:
"On the unfortunate day of 28.11.2007 the injured/petitioner was going
driving his two wheeler scooter No. DL 85 AE 5534 at a very normal
speed observing all the traffic rules, regulations and conventions of the
road and he was proceeding towards sector 25, Rohini from his residence
at Sector 15, Rohini via Japani Park, Sector 11, Rohini from his residence
at Sector 15, Rohini via Japani Park, Sector 11, Rohini. At about 3.00 P.M
when the injured reached at Ridhala road near Taxi Stand Japani Park,
Sector 11, Rohini then a Tata 407 Tempo bearinq its registration No. DL
IL C8217 being driven by the respondent No.l at a very high speed, rashly,
negligently, without taking necessary precautions, without observing
proper look out violating the traffic rules and without blowing any horn
came from Rithala Metro Station side and suddenly took sharp right turn
and violently hit one cyclist and then hit the two wheeler scooter of the
injured and then again hit one pedestrian Sh. Gopi Chand Gupta who was
going on foot on the foot path and dragged him for about 30 to 40 steps
and then stopped after hitting against underground water storage Tank
constructed in the park. As a result of this violent Impact Sh. Govind Lal
Wadhwa, Sh. Gopi Chand Gupta and the cyclist fell down on the road and
all of them sustained serious Injuries all over their bodies. The accident
occurred due to negligence on part of respondent No.l. The FIR was
registered in respect of this accident vide FIR No. 854/07, PS Prashant
Vihar, U/s. 279/338 IPC."
3. Consequently, the Appellant was admitted to Dr. Baba Saheb
Ambedker Hospital, Rohini, Delhi, where necessary treatment was
given to him from 28.11.2007 to 29.11.2007. Later he got admitted to
Maharaja Agrasen Hospital and remained there from 29.11.2007 to
06.12.2007, 16.03.2009 to 19.03.2009 and 10.11.2009 to 16.11.2009.
It is pertinent to mention here that on account of the accident, the
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Appellant sustained various injuries such as a) Compound
Comminuted Fracture Shaft; b) Inter lock nailing condylar region right
femur; c) Fracture Radius Right; d) Fracture Ulna Right; e) Fracture
Femur treated with ORIF; f) Fracture ulna treated fixation dual plate;
g) Fracture radius treated fixation dual plate; h) Multiple Lacerated
wounds i) Profusely bleeding; j) Abrasions and Blunt Injuries all over
the body. The Appellant was issued a Temporary Disability Certificate
by Dr. Baba Saheb Ambedkar Hospital stating 62% Temporary
Disability with respect to his right lower limb and was further advised
re-assessment after a period of one year.
4. Subsequently, the Appellant preferred an application under Sections
166 and 144 of the Motor Vehicles Act, 1988 (hereinafter referred to
as the "Act") praying for compensation of Rs. 15,00,000/- (Fifteen
Lacs only) on various counts @12 % per annum from the date of filing
the claim petition till its realization before the Motor Accidents Claims
Tribunal, Delhi ("hereinafter referred to as "MACT"). It is pertinent to
note that the appellant claimed that he was 50 years and was self-
employed and was working as a lubricant supplier. It was further the
claim of the appellant that his monthly income was Rs. 8,000/- per
month.
5. Written Statement was filed on behalf of respondent Nos.1 and 2
separately wherein they denied all the allegations of the Appellant and
further stated that they have been falsely implicated in this case. A
separate written statement was also filed on behalf of respondent
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No.3/Insurance Company wherein it denied all allegations made by the
Appellant and tried to evade its liabilities.
6. In support of the claim petition, the Appellant has examined 8
witnesses. The Appellant and the Injured/Gopi Chand Gupta were
examined as PW1 and PW2 respectively. Shri Surender Singh, the
Record Clerk from Dr. Ram Manohar Lohia Hospital was examined as
PW-3, who proved that the Injured/Gopi Chand Gupta remained
admitted in the Hospital from 28.11.2007 to 01.01.2008. H.C. Ashish
Kumar was examined as PW-4 and he proved the copy of FIR
No.854/07 registered at Police Station Prashant Vihar, Delhi. Shri
Ram Singh, Record Clerk of Dr. Baba Saheb Ambedkar Hospital,
Rohini, Delhi was examined as PW-5 to prove the MLC register of the
Appellant and other medical records relating to injured/ Gopi Chand
Gupta. Shri Rajiv Trivedi, Deputy Law Officer and Shri K.D. Sharma,
Record Clerk of Maharaja Agrasen Hospital were examined as PW-6
& PW-7 respectively to prove the hospital record in relation to the
Appellant. The Appellant also examined Dr. D.B. Shankar, Neuro
Surgeon, Dr. Ram Manohar Lohia Hospital, Delhi as PW-8. The
witness proved the injured/ Gopi Chand Gupta‟s disability certificate.
He deposed that the he had suffered „head injury with right
hemiparesis‟ and was „having 60% permanent disability in relation to
his body‟. It was also stated that the injured/ Gopi Chand Gupta could
not walk as a normal person due to his disability.
7. The Insurer/respondent No. 3 examined one Shri K.K. Mittal,
Assistant Manager from the Insurance Company as R3W1.
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8. MACT decided the issues in favour of the Appellant by holding that
he is entitled to get the total compensation from respondent
No.3/Insurance Company with the right to recover the same jointly
from respondent Nos. 1 and 2. The heads in which the MACT
awarded compensation are as follows:
S.No. Head Compensation
awarded
Pecuniary Damages
1. Loss of Income Rs. 84,384/-
2. Loss of future prospects Nil
3. Medical expenses Rs. 2,62,177/-
4. Special diet expenses Rs. 25,000/-
5. Conveyance charges Rs. 25,000/-
Non- Pecuniary Damages
6. Pain, suffering damages (General Rs. 70,000/-
damages)
Total Compensation Rs. 4,66,561/-
9. Aggrieved by the order of the MACT, the Appellant herein filed an
appeal under Section 173 of the Act, against the order of the MACT
before this Court praying for suitably modifying the Impugned Award,
passed by the MACT in Suit No. 419/13/2008. This Court issued
notice in the present matter vide its order dated 13.12.2013. Further, it
is pertinent to note that, the Appellant has also preferred an application
before this Court vide CM No. 7851/2014 for fresh medical
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examination for reassessment of his disability. This Court vide its
order dated 13.05.2016 had directed the Medical Superintendent of
Dr.Baba Saheb Ambedkar Hospital to reconstitute a Medical Board
and have the nature and extent of disability suffered by the Appellant
to be reassessed. On 21.04.2022, a Permanent Disability Certificate
dated 20.09.2016 was placed before this Court. Subsequent to that, the
appellant moved an appropriate application being CM No. 20555/2022
for summoning the concerned person to prove the Permanent
Disability Certificate.
10.Vide order dated 20.05.2022, AW-1, Dr. Namita Deka, Chairman,
Disability Board of Dr. Baba Saheb Ambedkar Hospital was examined
before this Court, wherein she categorically deposed that the
Temporary Disability Certificate dated 11.04.2011 was a provisional
document and was issued while the patient was under treatment.
Thereafter, when the patient was examined again, it was post treatment
and the patient was issued final certificate. It was specifically
mentioned in the final certificate that the victim had suffered
permanent disability and was not likely to improve. Further, it was
also mentioned that there was a significant impairment of functioning
of limbs. Relevant part of the examination and the cross-examination
dated 20.05.2022 is reproduced hereunder:
"AW-1: Dr. Namita Deka, Chairman, Disability Board of Dr. Baba Saheb
Ambedkar Hospital, Rohini. Mob. 9971412225
On S.A.
a. I am a summoned witness and I have brought the summoned
record pertaining to Permanent Disability Certificate No.628
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dated 20.09.2016 issued to patient Sh. Govind Lal Wadhwa son of
Late Sh. Tek Chand Wadhwa. I have seen the original Permanent
Disability Certificate No.628 lying on record (at Page 67). The
same is Ex. AW-1/1. I identify the signature of Dr. Meenakshi
Sidhar at point 'A'. The said certificate has been sent by the
hospital to the court directly after examining the patient.
b. According to Right of Persons With Disability Act, 2016, the
disability is more than 40% and is permanent in nature and there
are no chances of improvement. The disability pertains to right
upper and lower limb joints with specification right shoulder, right
wrist and right knee joint.
c. The permanent disability suffered by the victim is correlated to
the injuries suffered by him during accident as mentioned in Ex.
PW- 5/A (colly) i.e.. Discharge Summary.
xxxn by Ms. Archna Gaur, Advocate for respondents
d. The Temporary Disability Certificate dated 11.04.2011 has been
issued while the patient was under treatment and was healing. It
was a provisional document / certificate. It was issued only for one
year period. In the provisional certificate it is mentioned that there
was likelihood of improvement in the condition of the patient
because the treatment was still continuing at that time.
e. Thereafter when the patient was examined again, it was post
treatment. At that time, the final certificate was issued and it was
mentioned therein that the victim had suffered permanent disability
and was not likely to improve. There was significant impairment of
functioning of limbs.
f. I am not sure whether the patient took any treatment from the
year 2011 to 2016. I cannot say if the patient in question would
require a permanent attendant for attending to basic activities of
his daily living. Vol. for this purpose he would be required to be
examined again by the concerned medical specialist."
11. The principal grounds on which this appeal has been filed by the
Appellant/Injured are as follows:
A. MACT erroneously assumed the income of the Appellant as minimum
wages, when the Appellant was earning Rs. 8,000/- per month by
supplying lubricants.
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B. MACT ought to have considered the age of the Appellant and
multiplier of 11 should have been applied after granting Future
Prospects.
C. MACT has erred in not granting any compensation suffered by the
Appellant for the loss of earning capacity due to permanent disability
of 43% with respect to the whole body as the entire right portion of the
Appellant‟s body is affected.
D. MACT failed to appreciate that the Appellant has suffered 100%
functional disability qua his profession and further erred in not
granting any compensation for future surgery to be undergone by the
Appellant for the removal of plate & screws from right upper & lower
limb.
E. MACT failed in not awarding any compensation for future
conveyance as the Appellant would not be able to drive his two-
wheeler.
F. MACT erred in not awarding any amount for the services of the
attendant.
G. MACT erred in not awarding any amount for shortening of life and
loss of expectancy of life to the Appellant due to permanent disability
suffered.
H. MACT erred in not awarding any compensation under the head of loss
of amenities of life.
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I. MACT erred in not paying any compensation towards
disfigurement/physical impairment.
J. MACT erred in granting Rs. 70,000 only for pain and suffering which
should be suitably enhanced.
K. MACT ought to have awarded interest @18% on the awarded amount
but instead it awarded 9% from the date of petition till realization.
SUBMISSIONS OF THE APPELLANT
12.Learned counsel for the Appellant vehemently initiated his arguments
by submitting that at the time of the accident the Appellant was aged
about 50 years and was in good health. Further, learned counsel
submitted that the Appellant was self-employed and was purchasing
lubricants from Punjabi Bagh and supplying it to various shops of
Delhi at Burari, Mukand Pur, Tilak Vihar, Jahangirpuri etc., and was
earning Rs. 8,000/- per month. He argued that the aftermath of the
accident is that, the Appellant has suffered severe injuries resulting
into permanent disability and he is not able to carry on his business
and cannot even do household chores. He further submitted that the
accident has made him dependent on others for executing day to day
routine work and has caused hindrance in enjoying the amenities of
life. Furthermore, the Appellant would also not be able to drive his
vehicle in the future and cannot carry out his field work of supplying
lubricants.
13. It is the contention of Mr. Maini that initially the Appellant suffered
Temporary Physical Disability to the extent of 62%. As a result, the
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Appellant was issued a certificate of temporary disability by Dr. Baba
Saheb Ambedkar Hospital dated 11.04.2011 (Exh. PW-1/84) and was
advised for re-assessment after one year. The learned counsel further
argued that the condition of the Appellant remained non-progressive
and was not likely to improve in future. The Appellant has consistent
pain and rigidity in the right upper & lower limbs and he is further not
able to lift weight, climb stairs, drive his vehicle and wear clothes on
his own. The Appellant is certified to be a case of Post Traumatic
Stiffness Right, Fracture Upper and Lower Limb Joints and
Permanently Disabled of 43% with respect to Right Shoulder, Right
wrist and Right knee joint and hence while computing loss of earnings,
permanent disability should be considered with respect to the whole
body. He furthered his arguments by submitting that besides financial
loss, the Appellant has suffered great pain, shock, mental torture,
agony on account of the accident caused by respondent No.1.
14.The learned counsel submitted that the quantum of compensation
awarded by the MACT of Rs. 4,66,561/- is much less against the
claimed amount of Rs. 15,00,000/-, which would have been the just
and reasonable compensation to be awarded to the Appellant in the
present scenario.
15. Learned counsel for the Appellant bolstered his submissions by relying
on the judgments of the Hon‟ble Supreme Court in Anant Vs. Pratap
(2018) 9 SCC 450, Basappa Vs. T. Ramesh (2014) 10 SCC 789 and of
this Hon‟ble Court in MAC APP. No. 258/2011 titled Mohd. Saleem
Vs. Adarsh Kumar & Ors. decided on 24.10.2013.
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SUBMISSIONS OF THE RESPONDENT NO.3/INSURANCE COMPANY
16. Learned counsel appearing on behalf of the respondent No.3/Insurance
Company while relying on the Impugned Award submitted that
respondent No. 3 has proved that at the time of the accident the driver
of the offending vehicle was having a fake driving license and hence
the MACT has granted the right to recovery jointly from respondent
Nos. 1 and 2.
17. Further, the learned counsel submitted that during the pendency of the
appeal, the Appellant moved an application for his medical
examination and for the issuance of Permanent Disability Certificate
and the same was allowed and certificate of 43% Permanent Disability
Certificate was taken on record. It is the contention of the learned
counsel for respondent No.3 that though the Permanent Disability
Certificate has been taken on record but on that disability certificate, no
medical evidence has been placed on record so far. She further went on
to submit that taking on record a document and relying upon that
document are two different things.
18. Ms. Gaur submitted that permanent disability is only with respect to
Right Shoulder, Right Wrist and Right Knee Joint and not in regard to
the entire body so it cannot be considered to be a functional disability
of the entire body. With regard to future prospectus she submitted that
Appellant can be granted 10% future prospects relying on the judgment
of the Hon‟ble Supreme Court in National Insurance Co. Ltd Vs
Pranay Sethi & Ors. reported as (2017) 16 SCC 680. While rebutting
the contention of the Appellant with regard to attendant charges, she
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submitted that since the Appellant had not produced any evidence
regarding the attendant, he is not entitled for attendant charges. The
compensation awarded by the learned Tribunal on other aspects is just
and reasonable and is not required to be enhanced.
19. The learned counsel for respondent No.3 relied on the judgments of
the Hon‟ble Supreme Court in Raj Kumar Vs. Ajay Kumar (2011) 1
SCC 343 and Pranay Sethi (supra) in support of her above-stated
submissions.
LEGAL ANALYSIS
20. I have heard the learned counsel for the parties, and perused the
records.
21. Before adjudicating whether the Tribunal awarded the right amount of
compensation or not, it would be ad rem to expound on the
jurisprudence of compensation. Section 168 of the Act empowers the
Tribunal to "make an award determining the amount of compensation
which appears to it to be just". Therefore, the requirement for
determining the compensation is that it must be "just".
22. The Hon‟ble Supreme Court in Nagappa v. Gurudayal Singh & Ors.
reported as (2003) 2 SCC 274 held that the function of the
Tribunal/court is to award "just" compensation which is reasonable on
the basis of evidence produced on record. The Court is duty-bound and
entitled to award "just compensation". The Tribunal should attempt to
equate, as far as possible, the misery on account of the accident, so that
the dependents of the victim do not face the vagaries of life on account
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of the discontinuance of the income earned by the victim. In Pappu
Deo Yadav v. Naresh Kumar & Ors. reported as 2020 SCC OnLine SC
752, the Apex Court observed that:
"6. The principle consistently followed by this court in assessing motor
vehicle compensation claims, is to place the victim in as near a position as
she or he was in before the accident, with other compensatory directions
for loss of amenities and other payments. These general principles have
been stated and reiterated in several decisions.
...
8. This court has emphasized time and again that "just compensation"
should include all elements that would go to place the victim in as near a
position as she or he was in, before the occurrence of the accident.
Whilst no amount of money or other material compensation can erase the
trauma, pain and suffering that a victim undergoes after a serious
accident, (or replace the loss of a loved one), monetary compensation is
the manner known to law, whereby society assures some measure of
restitution to those who survive, and the victims who have to face their
lives."
(Emphasis Supplied)
23. Going forward with this observation, the Hon‟ble Supreme Court in
the matter of Raj Kumar (Supra) laid down the heads under which
compensation is to be awarded for personal injuries:
"6. The heads under which compensation is awarded in personal injury
cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, 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)
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(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."
24. The ratio of the above-noted judgment is that if the victim of an
accident suffers permanent or temporary disability, then efforts should
always be made to award adequate compensation not only for physical
injury and treatment, but also for pain, suffering and trauma caused due
to the accident, loss of earning and the victim‟s inability to lead normal
life and enjoy amenities, which he would have enjoyed but for the
disability caused due to the accident.
25. The above-mentioned grounds of challenge by the Appellant at para 11
are dealt with in seriatim.
26. In light of the above, we shall now first consider the issue with regard
to the income of the Appellant. The Appellant failed to furnish any
proof of his income and/or educational qualification. Hence, the MACT
assumed the income of the Injured/Appellant based upon minimum
wages of Rs. 3,516/- per month for the calculation of loss of income
and further also granted him loss of income for the period of 24 months
i.e., Rs. 3516 X 24 = Rs. 84,384/-.
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27. I do not defer with the views of the MACT with regard to taking the
income of the Injured/Appellant based on the minimum wages of
Rs.3,516/- as the Appellant failed to place on record any documentary
evidence with regard to his income being Rs. 8,000/-.
28. At the outset, the Appellant deposed before the learned MACT in the
form of PW-l/A (Evidence by way of Affidavit) that from the spot of
accident, he was removed to Dr. Baba Saheb Ambedkar Hospital and
was given necessary treatment from 28.11.2007 to 29.11.2007.
Thereafter, he was shifted to Maharaja Agrasen Hospital, where he
remained admitted from 29.11.2007 to 06.12.2007, where his right
hand was operated by fixation of dual plate in ulna and radius bone.
Further, since the fracture was not united, he was again admitted in
Maharaja Agrasen Hospital from 16.03.2009 to 19.03.2009, where
bone grafting with rose petalling right distal femur was done.
Thereafter the Appellant visited the OPD of the said hospital for
regular check-up for a long period of time. The statement of the
Appellant stands proved by the evidence of PW-5, PW-6 and PW-7.
Hence, I fully subscribe to the views of the MACT of granting him loss
of income for the period of 24 months, as the Appellant during the
period from the year 2007 to 2009 has been continuously visiting
doctors of different hospitals for his recovery.
29. At the cost of repetition, I would like to clarify that the MACT didn‟t
grant any Future Prospects to the Appellant on the premise of his
temporary disability. However, it has now come to notice before this
Court that the Appellant has suffered permanent disability to an extent
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of 43% with respect to Right Shoulder, Right wrist and Right knee joint
and is further certified to be a case of Post Traumatic Stiffness Right,
Fracture Upper and Lower Limb Joints.
30. In this Backdrop, I would take the liberty of reiterating para 7 of the
decision in Pappu Deo Yadav (Supra):
"7. Two questions arise for consideration : one, whether in
cases of permanent disablement incurred as a result of a motor
accident, the claimant can seek, apart from compensation for
future loss of income, amounts for future prospects too; and
two, the extent of disability. On the first question, the High
Court no doubt, is technically correct in holding that Pranay
Sethi involved assessment of compensation in a case where the
victim died. However, it went wrong in saying that later, the
three-judge bench decision in Jagdish was not binding, but
rather that the subsequent decision in Anant to the extent that it
did not award compensation for future prospects, was binding.
This court is of the opinion that there was no justification for
the High Court to have read the previous rulings of this court,
to exclude the possibility of compensation for future prospects
in accident cases involving serious injuries resulting in
permanent disablement. Such a narrow reading of Pranay
Sethi is illogical, because it denies altogether the possibility of
the living victim progressing further in life in accident cases -
and admits such possibility of future prospects, in case of the
victim's death."
[Emphasis supplied]
31.In view of para 58 of Pranay Sethi (Supra), Future Prospects of 10%
should be granted to a person who is self-employed and is between the
age of 50-60 years. The Appellant being at the age of 55 years will be
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granted 10% of future prospects. Hence, the Appellant‟s monthly
income, inclusive of future prospects, is re-assessed at Rs. 3867.6 p.m
(i.e., Rs. 3516 + 10% of 3516/-).
58. The controversy does not end here. The question still remains whether
there should be no addition where the age of the deceased is more than 50
years. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2
SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] thinks it appropriate not to add
any amount and the same has been approved in Reshma Kumari [Reshma
Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 :
(2013) 3 SCC (Cri) 826] . Judicial notice can be taken of the fact that
salary does not remain the same. When a person is in a permanent job,
there is always an enhancement due to one reason or the other. To lay
down as a thumb rule that there will be no addition after 50 years will be
an unacceptable concept. We are disposed to think, there should be an
addition of 15% if the deceased is between the age of 50 to 60 years and
there should be no addition thereafter. Similarly, in case of self-employed
or person on fixed salary, the addition should be 10% between the age of
50 to 60 years. The aforesaid yardstick has been fixed so that there can be
consistency in the approach by the tribunals and the courts.
[Emphasis supplied]
32. The most pertinent issue raised by the Appellant is with regard to the
assessment of disability. It is the contention of the Appellant that the
MACT erred in granting compensation to the Appellant for the loss of
earning capacity due to permanent disability of 43% with respect to the
whole body as the entire right portion of the Appellant‟s body is
affected.
33. The Appellant was issued a Temporary Disability Certificate dated
11.04.2011 by Dr. Baba Saheb Ambedkar Hospital stating 62%
Temporary Disability with respect to his right lower limb (Exh. PW-
1/84) and was further advised re-assessment after a period of one year.
The certificate also had an observation that the condition of the
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Appellant is likely to improve in the future. Unfortunately, the
condition of the Appellant remained non progressive. As a result of it,
the Appellant preferred an application before this court for his medical
examination and issuance of a Permanent Disability Certificate which
was allowed and the Appellant was certified to be a case of Post
Traumatic Stiffness Right, Fracture Upper and Lower Limb Joints and
Permanent Disability of 43% with respect to Right Shoulder, Right
wrist and Right knee joint vide certificate dated 20.09.2016 by Dr.Baba
Saheb Ambedkar Hospital. At this juncture, it is pertinent to note that
the Permanent Disability Certificate issued to the Appellant is also
corroborated by the evidence of AW-1, Dr. Namita Deka, Chairman,
Disability Board of Dr. Baba Saheb Ambedkar Hospital wherein she
specifically deposed that disability of the Appellant is more than 40%
and is permanent in nature and there are no chances of improvement.
She further deposed that the disability pertains to right upper and lower
limb joints with specification right shoulder, right wrist and right knee
joint.
34. In connection with the issue, it is deemed profitable to refer to the
decision in Raj Kumar (Supra), wherein it was observed as under:--
"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
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the effect thereof on the future life of the claimant. Decisions of this Court
and the 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
8. Disability refers to any restriction or lack of ability to perform an
activity in the manner considered normal for a human being. Permanent
disability refers to the residuary incapacity or loss of use of some part of
the body, found existing at the end of the period of treatment and
recuperation, after achieving the maximum bodily improvement or
recovery which is likely to remain for the remainder life of the injured.
Temporary disability refers to the incapacity or loss of use of some part of
the body on account of the injury, which will cease to exist at the end of
the period of treatment and recuperation. Permanent disability can be
either partial or total. Partial permanent disability refers to a person's
inability to perform all the duties and bodily functions that he could
perform before the accident, though he is able to perform some of them
and is still able to engage in some gainful activity. Total permanent
disability refers to a person's inability to perform any avocation or
employment related activities as a result of the accident. The permanent
disabilities that may arise from motor accident injuries, are of a much
wider range when compared to the physical disabilities which are
enumerated in the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 ("the Disabilities
Act", for short). But if any of the disabilities enumerated in Section 2(i) of
the Disabilities Act are the result of injuries sustained in a motor accident,
they can be permanent disabilities for the purpose of claiming
compensation.
9. The percentage of permanent disability is expressed by the doctors with
reference to the whole body, or more often than not, with reference to a
particular limb. When a disability certificate states that the injured has
suffered permanent disability to an extent of 45% of the left lower limb, it
is not the same as 45% permanent disability with reference to the whole
body. The extent of disability of a limb (or part of the body) expressed in
terms of a percentage of the total functions of that limb, obviously cannot
be assumed to be the extent of disability of the whole body. If there is 60%
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permanent disability of the right hand and 80% permanent disability of
left leg, it does not mean that the extent of permanent disability with
reference to the whole body is 140% (that is 80% plus 60%). If different
parts of the body have suffered different percentages of disabilities, the
sum total thereof expressed in terms of the permanent disability with
reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of
injuries, the assessment of compensation under the head of loss of future
earnings would depend upon the effect and impact of such permanent
disability on his earning capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. In most of the cases, the
percentage of economic loss, that is, the percentage of loss of earning
capacity, arising from a permanent disability will be different from the
percentage of permanent disability. Some Tribunals wrongly assume that
in all cases, a particular extent (percentage) of permanent disability
would result in a corresponding loss of earning capacity, and
consequently, if the evidence produced show 45% as the permanent
disability, will hold that there is 45% loss of future earning capacity. In
most of the cases, equating the extent (percentage) of loss of earning
capacity to the extent (percentage) of permanent disability will result in
award of either too low or too high a compensation.
xxxxxxxxx
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
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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."
35. Apropos the judgment in Raj Kumar (supra), it is clear that when a
Disability Certificate states that the injured has suffered permanent
disability to an extent of 45% of the left lower limb, it is not the same
as 45% permanent disability with reference to the whole body. The
extent of disability of a limb (or part of the body) expressed in terms of
a percentage of the total functions of that limb, obviously cannot be
assumed to be the extent of disability of the whole body. Hence, the
Appellant in the present case cannot be granted loss of earning capacity
due to permanent disability of 43% with respect to the whole body.
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Further, I am also of the opinion that permanent disability of 43% with
respect to Right Shoulder, Right wrist and Right knee joint, cannot lead
to loss of earning capacity of 100% with respect to the whole body and
consequently, the assessment of compensation on the head of loss of
earning capacity is fixed at 43%.
36. As rightly held by the MACT, the Appellant‟s income is to be based on
the minimum wages of Rs. 3,516/- per month as the Appellant/injured
failed to place on record any documentary evidence with regard to the
same. The Appellant‟s age was 55 years and 2 months at the time of the
accident as per the Date of Birth (06.09.1952) mentioned in the
Appellant‟s Pan Card. The Multiplier laid down in Sarla Verma and
Ors. V Delhi Transport Corporation and Ors. (2009) 6 SCC 121
would be 11.
37. Further, the loss of future income must be calculated in terms of the
Judgment of the Hon‟ble Supreme Court in Raj Kumar (Supra),
wherein the Hon‟ble Supreme Court specifically held that where the
claimant suffers a Permanent Disability as a result of injuries, the
assessment of compensation for loss of future earnings would depend
upon the impact and effect of the Permanent Disability on his earning
capacity. The effect of the Permanent Disability on the earning capacity
of the injured must be considered; and after assessing the loss of
earning capacity in terms of percentage of the income, it has to be
quantified in terms of money, to arrive at the future loss of earnings
suffered by the claimant. Hence, the compensation to be awarded is
calculated as follows:
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I. Minimum income of the Appellant after adding future prospects =
Rs. 3867.6 /- X 12 = Rs. 46,411.2 p.a
II. Loss of future income at the level of his disability (43%) = 43% of
Rs. 46, 411.2= Rs. 19,956.816/-
III. Multiplier applicable (55 years) = 11
IV. Loss of future earnings = Rs. 19,956.816 X 11= Rs. 219,524.976/-
38. In so far as the contention of the Appellant with respect to
compensation towards future surgery to be undergone by the Appellant
for the removal of plate & screws from right upper & lower limb,
future conveyance charges and attendant charges are concerned, it is
noted that the Appellant placed on record certain medical bills and
medical treatment papers amounting to Rs. 2,62,177.83. The MACT in
the absence of any challenge by any of the respondents granted the
same. Further, with regard to the head of conveyance charges and in the
absence of any evidence, MACT granted Rs. 25,000/- towards
conveyance charges. Furthermore, with respect to the head of attendant
charges, the learned counsel for the Appellant submitted before this
Court that he is unable to perform routine work properly, cannot drive
his vehicle and would need an attendant all his life. Per Contra, learned
counsel for respondent No. 3 contended that the Appellant has failed to
prove that he had incurred any amount towards attendant charges or
that he would require assistance of an attendant during his entire life.
39. It is relevant to point out here that no evidence has been led to show
that any attendant was prescribed to the Appellant at the time of his
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discharge, this Court cannot lose sight of the fact that the Appellant,
who has claimed himself to be self-employed doing business of
lubricant supplier has been declared 43% with respect to Right
Shoulder, Right wrist and Right knee joint, with the opinion that his
medical condition is not likely to improve. Further, as per the
Appellant's submissions placed on record, he is now 70 years of age
and will have to undergo surgery for removal of plate.
40. The injury caused due to the accident has reduced the Appellant‟s
enjoyment of life and the full pursuit of all activities he engaged in
prior to the accident. In light of the aforesaid, the Appellant is held
entitled to an additional cumulative amount of Rs. 75,000/- towards
future medical expenses, future conveyance charges and attendant
charges.
41. With regard to the non- pecuniary damages, (i.e., damages for pain
suffering and trauma, loss of amenities and loss of expectation of life),
the MACT with respect to pain suffering and trauma granted
Rs.70,000/- to the Appellant. It is the contention of the Appellant that
the amount awarded by the MACT is on the lower side and a higher
amount should have been awarded. Mr. Maini, learned counsel for the
Appellant further argued that the MACT erred in not awarding any
compensation with respect to disfigurement/physical impairment and
for loss of expectation of life. This Court deems it appropriate to
enhance the compensation under the head of „pain suffering and
trauma‟ to Rs. 1,00,000/-. The Appellant has now attained the age of 70
years and would be suffering from other co-morbidities. For the
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Appellant to constantly rely on someone else for his day today work is
destined to cause emotional, physical and financial fatigue for all
stakeholders. Further, it is the claim of the Appellant that he has also
developed cyst gland right region of his face, which needs to be
removed from surgery. Hence, in my opinion it is also appropriate to
grant a combined compensation for loss of amenities, loss of
expectation of life amounting to Rs. 2,00,000/-.
42. At this juncture, it is also relevant to refer to the celebrated judgment
of the Hon‟ble Apex Court in K. Suresh v. New India Assurance Co.
Ltd. (2012) 12 SCC 274, wherein it was held that:
"10. It is noteworthy to state that an adjudicating authority, while
determining the quantum of compensation, has to keep in view the
sufferings of the injured person which would include his inability to lead a
full life, his incapacity to enjoy the normal amenities which he would have
enjoyed but for the injuries and his ability to earn as much as he used to
earn or could have earned. Hence, while computing compensation the
approach of the Tribunal or a court has to be broad-based. Needless to
say, it would involve some guesswork as there cannot be any mathematical
exactitude or a precise formula to determine the quantum of
compensation. In determination of compensation the fundamental
criterion of "just compensation" should be inhered."
43. Further, a person therefore is not only to be compensated for the injury
suffered due to the accident but also for the loss suffered on account of
the injury and his inability to lead the life he led, prior to the life-
altering event. Justice D.Y. Chandrachud speaking for a three judges'
bench in Jagdish v. Mohan (2018) 4 SCC 571 makes the following
relevant observation on the intrinsic value of human life and dignity
that is attempted to be recognised, through such compensatory awards,
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"...the measure of compensation must reflect a genuine attempt
of the law to restore the dignity of the being. Our yardsticks of
compensation should not be so abysmal as to lead one to
question whether our law values human life. If it does, as it
must, it must provide a realistic recompense for the pain of loss
and the trauma of suffering. Awards of compensation are not
law's doles. In a discourse of rights, they constitute entitlements
under law."
44. Lastly, the Appellant argued that the MACT ought to have awarded
interest @18% on the awarded amount but instead it awarded 9% from
the date of petition till realization.
45. In this regard, this Hon‟ble Court in the matter of New India
Assurance Co. Ltd. V Dinesh Devi reported as 2017 SCC OnLine Del
8614, held as follows:
"4. The learned counsel for the appellant lastly submits that the Tribunal
has awarded interest at the rate of 12% instead of the usual rate of 9%. In
Municipal Corporation of Delhi, Delhi v. Association of Victims of
Uphaar Tragedy (2011) 14 SCC 481: AIR 2012 SC 100 the Supreme
Court had granted interest at the rate of 9% for an accident which
happened in 1998. This Court has consistently granted interest at the rate
of 9% in a number of cases. Accordingly, the awarded amount shall carry
an interest rate of 9% instead of 12%. The impugned Award is modified
accordingly."
46. In view of the above, I am not inclined to interfere with the rate of
interest as fixed by the MACT and hence 9% interest rate is
maintained.
CONCLUSION
47. Keeping in view the facts and circumstances of the case, the appeal is
partly allowed and the judgment of the MACT is modified. The
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compensation granted to the Appellant under the various heads are
hereunder:
S.No. Head Compensation
awarded
Pecuniary Damages
1. Actual Income Rs. 3516/- p.m
2. Medical expenses Rs. 2,62,177/-
3. Loss of future prospects 10%
10% of 3516= 351.6/-
Rs. 3867.6 p.m
4. Loss of Income: Loss of earnings Rs.84,384/-.+
during the period of treatment + Loss 219,524.976/-
of future earning capacity and future
prospects of income
5. Special diet expenses Rs. 25,000/-
6. Conveyance charges Rs. 25,000/-
7. Future medical expenses+ Attendant 75,000/-
charges+ Future conveyance charges
Non- Pecuniary Damages
8. Pain, suffering damages (General Rs. 1,00,000/-
damages)
9. Loss of amenities+ Loss of Rs. 2,00,000/-
expectation of life
Total Compensation Rs. 991,085.976/-
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48. It is directed that respondent No. 3 shall pay the compensation
awarded to the Appellant of Rs. 991,085.976/- alongwith interest @
9% per annum, from the date of filing of the petition till realization.
Further, as directed by the MACT, respondent No.3 shall be entitled to
recover the compensation jointly from respondent Nos.1 & 2.
49.The Appeal along with pending application stands disposed of. No
order as to costs.
GAURANG KANTH, J.
SEPTEMBER 20, 2022
PS
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