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High Court Of Delhi|20 September, 2012


J U D G M E N T G. P. MITTAL, J. (ORAL) CM. APPL.20671/2012 (Delay) For the reasons as stated in the Application, the delay of 199 days in filing the Appeal is condoned.
The Application is allowed.
MAC. APP. 1006/2011
1. The Appeal is for enhancement of compensation of `5,58,963/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of the Appellant for having suffered injuries resulting in amputation of left leg above knee in a motor vehicle accident which occurred on 12.06.2009.
2. In the absence of any Appeal by the driver, owner or the Insurer, the finding on negligence has attained finality between the parties.
3. Immediately after the accident, the Appellant was removed to Safdarjung Hospital with compound fracture of left femur. In order to save Appellant’s life amputation of left leg above knee was done on 13.06.2009. The Appellant was discharged from the hospital on 28.06.2009 with advice to attend Ortho OPD on 03.7.2009. The Appellant attended OPD on several dates including 03.07.2009, 17.07.2009 and 04.09.2009. On 04.09.2009, the Appellant was required to get a regular dressing with Neosporin. On 04.09.2009, he (the Appellant) was referred to rehabilitation department for some exercise and physiotherapy.
4. During inquiry before the Claims Tribunal, the Appellant claimed that he was working as a Denter and was getting a salary of `5,200/- per month. The Appellant was unable to prove his salary. The Claims Tribunal opined that since the Appellant was carrying out the vocation of Denter, the amputation of left leg above knee would substantially affect his vocation and thus granted compensation of `4,90,963/- towards loss of earning capacity on the basis of minimum wages, taking the loss of earning capacity as 80%. The compensation awarded is tabulated hereunder:-
5. The following contentions are raised on behalf of the Appellant:-
(i) The Appellant was not granted any increase in the compensation towards future prospects/inflation. He was entitled to an increase of 30% on the basis of the judgment in Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559.
(ii) The compensation of `50,000/- awarded towards pain and suffering is on the lower side.
(iii) No compensation was awarded towards Attendant charges.
(iv) The Appellant proved estimate Ex.PW-1/11 with respect to the cost of knee prosthesis. He also examined PW-3 to prove the same. The Claims Tribunal erred in not granting any compensation towards purchase of artificial limb.
6. The trend of the Superior Courts is to award full and fair compensation. In the case of Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme Court observed that the object of awarding damages is to make good the loss suffered as a result of the wrong done as far as money can do in a fair, reasonable and equitable manner. Paras 5 and 6 of the report are extracted hereunder:-
“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 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 v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v. Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v. Willoughby, 1970 AC 467.
7. In Arvind Kumar Mishra v. New India Assurance Company Limited, (2010) 10 SCC 254, the Supreme Court dealt with the case of disability of an engineering student. The Supreme Court observed that while awarding compensation 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.”
8. In Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka & Ors., (2009) 6 SCC 1, the Supreme Court emphasized that cases of serious injuries in motor vehicle accident are worse than the death cases because the victim and his family suffers 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.”
9. Learned counsel for the Appellant conceded that the Appellant’s income was not proved. In the absence of proof of income the Claims Tribunal took the minimum wages of an unskilled worker to compute the loss of earning capacity.
10. This Court in Rakhi v. Satish Kumar & Ors. (MAC. APP. 390/2011) decided on 16.07.2012, referred to the reports of the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC 176, Sarla Dixit v. Balwant Yadav, (1996) 3 SCC 179, Bijoy Kumar Dugar v. Bidya Dhar Dutta & Ors, (2006) 3 SCC 242, Sarla Verma & Ors. v. Delhi Transport Corporation & Anr, (2009) 6 SCC 121 and Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and held that even in the absence of any evidence with regard to future prospects Santosh Devi provides for an increase of 30% towards inflation in the victims income in case of self employed persons and persons having fixed income.
11. Thus, the Appellant would be entitled to 30% increase in the income towards loss of earning capacity. Keeping in view the Appellant’s vocation, the Claims Tribunal held that the loss of earning capacity would be 80%. I do not find any ground to interfere with this assessment of the Claims Tribunal. Thus, the loss of earning capacity comes to ` 6,38,252/- (3934/- + 30% x 12 x 13 x 80%).
12. It is difficult to measure in terms of money the pain and suffering which is suffered by the claimant on account of serious injuries caused to him in a motor accident. Since the compensation is required to be paid for pain and suffering an attempt must be made to award compensation which may have some objective relation with the pain and suffering underwent by the victim of a motor accident. For this purpose, the Claims Tribunal and the Courts normally consider the nature of injury; the parts of the body where the injuries were sustained; surgeries (if any) underwent by the victim; confinement in the hospital and the duration of the treatment.
13. In case of Govind Yadav v. New India Insurance Co. Ltd. (2011) 10 SCC 683, where a victim aged about 24 years suffered amputation of one leg above knee, a compensation of `1.5 lacs was awarded towards pain and suffering.
14. In the instant case, victim was aged 45 years. The amputation was carried out just one day after the accident and the Appellant was discharged from the hospital after 16 days. He responded well to the treatment. In the facts and circumstances, the Appellant would be entitled to a compensation of `1,00,000/- towards pain and suffering as against award of `50,000/- made by the Claims Tribunal.
15. No evidence was produced by the Appellant as to the amount spent on engagement of an Attendant.
16. In Delhi Transport Corporation and Anr. v. Kumari Lalita 22 (1982) DLT 170 (DB), it was held as under:-
“(33) Counsel for the Corporation argued that since Lalita is being looked after by her mother compensation ought to be reduced. We do not agree. In the case of Lalita the main question is of future care. Today she is being helped by her mother. But that does not mean that she is not to be compensated for services rendered to her. A legal agreement between mother and daughter is not necessary to claim compensation. We cannot deduct what is described as the 'domestic element' from the cost of care. A wrong doer cannot take advantage of this 'domestic element.' If the mother renders service to her, instead of a nurse, it is right and fust that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigham v. Harrison (1973) 3 All E.R.
463). The services of a wife and mother are worth more than those of a house-keeper because she is in constant attendance and does many more things than a house-keeper. (Regan v. Williamson (1976) 2 All E. R. 241)”.
17. In the circumstances, I award a compensation of `6,000/-, (2,000/- x 3) towards Attendant charges for three months.
18. The Appellant deposed that he required artificial leg for his movement. He contacted M/s. Endolite India Ltd. for a suitable prosthesis. He was given an estimate Ex.PW-/11 for `3,59,200/-. The Appellant also examined PW-3 Kapil Kaushik, Material Executive from M/s. Endolite India Ltd. to prove the estimate Ex.PW-1/11.
19. It is urged by the learned counsel for Respondent Insurance Company that this was merely an estimate for purchase of knee prosthesis. The Appellant cannot be awarded compensation merely on this estimate.
20. PW-3 in this cross-examination denied that the Appellant did not require an artificial limb. The Appellant would definitely need an artificial limb to carry out his day to day essential activities to some extent. Thus, I would award him a sum of `3,59,200/- towards the cost of purchase of an artificial limb.
21. The compensation awarded is re-computed as under:-
22. The overall compensation is thus enhanced from `5,58,963/- to `11,21,452/-.
23. Out of the enhanced compensation of `5,62,489/-, a sum of `2,03,289/- shall carry interest @ 7.5% per annum from the date of filing of the Petition till its payment. He will be entitled to interest on the cost of knee prosthesis, that is, `3,59,200/- w.e.f. 02.08.2010 only.
24. The enhanced compensation along with interest shall be deposited with the UCO Bank, Delhi High Court Branch, New Delhi within six weeks in the name of the Appellant.
25. Seventy Five percent of the compensation of `2,03,289/- shall be held in fixed deposit for a period of two years, four years, six years and eight years in equal proportion. Rest 25% shall be released on deposit.
26. The amount of `3,59,200/- along with interest shall be released to the Appellant by Pay Order or A/c Payee cheque in favour of M/s. Endolite India Ltd. as and when the Appellant places order with regard to the same and the requisition for payment of the amount is made by the said company.
27. The Appeal is allowed in above terms.
28. Pending Applications stand disposed of.
SEPTEMBER 20, 2012
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High Court Of Delhi

20 September, 2012
  • P Mittal