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2008 DIGILAW 837 (DEL)

NEW INDIA ASSURANCE CO. LTD. v. HAR LAL

2008-09-01

KAILASH GAMBHIR

body2008
JUDGMENT : Kailash Gambhir, J. 1. Present appeal arises out of the award of compensation passed by learned Motor Accidents Claims Tribunal on 10.2.2006. Learned Tribunal awarded a total amount of Rs. 12,95,000 with an interest at the rate of 6 per cent per annum for the injuries sustained by the claimant in the motor accident. 2. Brief summary of facts of the case to deal with contentions raised by the parties are as under: That the claimant Har Lal, aged about 50 years, sustained grievous injuries on 20.7.2003 at about 6 p.m. at Delhi-Hapur Road near Achheja village within the jurisdiction of P.S. Hapur Kotwali, Hapur, U.P. when his motor cycle bearing No. HR 33-D 8678 on which he was riding was allegedly hit by a tanker bearing No. UP 14-B 5121 at a fast speed in a rash and reckless manner. The motor cycle was dragged by the tanker to some distance as a result his right hand was severed at the spot. Thereafter, he was taken to Khan Nursing Home, Hapur by the public where he was given first aid and brought to St. Stephen's Hospital, Delhi, where he was medically treated for the right severed hand and right leg below knee which was also crushed under the tanker and ultimately the right leg below knee was amputated. 3. Mr. P.K. Seth, learned Counsel for the appellant, assailed the said award of learned Tribunal, firstly, on the ground that the Tribunal erred in awarding a sum of Rs. 7,50,000 towards loss of earning capacity by erroneously considering the disability to the extent of 100 per cent when according to the disability certificate issued by the Medical Superintendent, Lok Nayak Hospital, Delhi, which was duly proved on record, the claimant-respondent suffered 60 per cent disability. The counsel further urged that the Tribunal erred in deducting monthly expenses which the claimant would have spent on himself. The counsel contended that the Tribunal erred in awarding compensation under the head of loss of earning capacity as the claimant continued to work in the same scale and on the same post and with the same organisation even after injuries sustained in the said accident. The counsel also submitted that the Tribunal erred in applying the multiplier of 8 when it was an admitted fact that the claimant would have retired after 3 years on reaching the age of superannuation. The counsel also submitted that the Tribunal erred in applying the multiplier of 8 when it was an admitted fact that the claimant would have retired after 3 years on reaching the age of superannuation. The counsel also maintained that the Claims Tribunal erred in awarding a sum of Rs. 2,00,000 each towards mental pain and suffering and loss of amenities of life and permanent disablement without any basis. The counsel further urged that the Tribunal erred in awarding compensation of Rs. 50,000 towards conveyance expenses, expenses towards special diet and attendant charges without any basis. 4. Per contra, Mr. Ashok Popli, learned Counsel for the respondent, submitted that Claims Tribunal has granted just, fair and reasonable compensation in favour of the respondent-claimant. Counsel submitted that the respondent lost his hand and foot and after placing reliance on Schedule I to the Workmen's Compensation Act, 1923 the Tribunal gave complete justification in considering the said disability to the extent of 100 per cent. The contention of learned Counsel for the respondent is that the claimant-respondent has been rendered totally incapable due to his right hand being severed and right leg badly crushed under the wheel of the offending vehicle. Counsel also contends that the Tribunal has not considered grant of any amount towards purchase of artificial limbs and at least an amount of Rs. 8,00,000 is likely to be spent by the respondent to buy the artificial limbs. Counsel for the respondent further contended that the Tribunal has rightly applied multiplier of 8 as laid down in the Second Schedule to the Motor Vehicles Act after duly considering the age of the respondent. Counsel contended that due to the amputation of his two limbs, the respondent-claimant would not be able to do any job after his retirement otherwise had he been a normal person, certainly he would have remained in one or the other job and his past experience in the service would have been more advantageous to get a better job. Counsel for the respondent also submitted that Tribunal has already lowered down the amount towards loss of earning capacity from Rs. 11,08,800 to Rs. 7,50,000. Counsel for the respondent also justified grant of Rs. 2,00,000 towards pain and suffering and Rs. 2,00,000 for loss of amenities of life/permanent disability as most adequate and reasonable. 5. Counsel for the respondent also submitted that Tribunal has already lowered down the amount towards loss of earning capacity from Rs. 11,08,800 to Rs. 7,50,000. Counsel for the respondent also justified grant of Rs. 2,00,000 towards pain and suffering and Rs. 2,00,000 for loss of amenities of life/permanent disability as most adequate and reasonable. 5. Contention of counsel for respondent is that for the enormity of pain and suffering as suffered by the respondent due to the said serious injuries, the amount of Rs. 2,00,000 cannot be considered to be on the higher side. Similarly, No. fault can be found with the award of Rs. 2,00,000 towards loss of amenities of life/permanent disability as the entire remaining life of the respondent has been made crippled due to the permanent disability suffered by the respondent to the extent of 60 per cent. 6. I have heard the counsel for the parties and perused the record. 7. In plethora of cases the Hon'ble Supreme Court and various High Courts have held that the emphasis of the courts in personal injury and fatal accident cases should be on awarding substantial, just and fair damages and not mere token amount. In cases of personal injuries and fatal accidents the general principle is that such sum of compensation should be awarded which puts the injured or the claimants in case of the fatal accident matters in the same position as he would have been had the accident not taken place. In examining the question of damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be taken into account. In this regard the Supreme Court in The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another, has classified pecuniary and non-pecuniary damages as under: (16) This Court in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, laying the principles posited: Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages towards loss of expectation of life, i.e., on account of the injury, normal longevity of the person concerned is shortened; (iv) hardship, inconvenience, discomfort, disappointment, frustration and mental stress in life. 8. Following the said principle, the Tribunal awarded Rs. 20,000 for medical expenses; Rs. 2,00,000 for pain and suffering; Rs. 2,00,000 for loss of amenities of life/permanent disability; Rs. 75,000 for loss of income; Rs. 7,50,000 towards loss of earning capacity and Rs. 50,000 towards conveyance, special diet and attendant charges. 9. As regards conveyance expenses, special diet expenses and attendant charges nothing has been brought on record. But considering the fact that the claimant was diagnosed for polytrauma with traumatic amputation of right proximal fourth forearm (open) with closed fractured shaft of right humerus with intertrochanteric fracture, right segmental fracture right femur with intercondylar fracture, right femur and with other wounds and fractures on the body and also, considering that he lost his dominant right hand and right leg in the accident, I feel that he must have required conveyance to travel and he must have also consumed protein rich/special diet for his early recovery. I feel that the claimant must have needed a medical attendant also for due to amputation of his right hand and right leg, he could not run, sit or squat properly. In view of the foregoing discussion, I do not find any infirmity in the award in this regard and the same is not interfered with. 10. As regards pain and suffering, the Tribunal has awarded Rs. 2,00,000 to the claimant-respondent. In view of the foregoing discussion, I do not find any infirmity in the award in this regard and the same is not interfered with. 10. As regards pain and suffering, the Tribunal has awarded Rs. 2,00,000 to the claimant-respondent. The claimant was diagnosed for polytrauma with traumatic amputation of right proximal fourth forearm (open) with closed fractured shaft of right humerus with intertrochanteric fracture, right segmental fracture, right femur with intercondylar fracture right femur and with other wounds and fractures on the body. Considering this, I feel that Claims Tribunal committed No. error in awarding Rs. 2,00,000 to the claimant-respondent towards pain and suffering. 11. As regards the compensation for permanent disability and loss of amenities of life, I feel that the Tribunal has committed No. error in awarding the same to the tune of Rs. 2,00,000. The claimant lost his dominant right hand and right leg due to which he is deprived to derive pleasure from the normal activities of daily life. Considering this, I feel that Tribunal committed No. error in awarding Rs. 2,00,000 to the claimant-respondent for permanent disability and loss of amenities of life. 12. As regards loss of earning capacity, the counsel contended that the Tribunal while relying on the disability certificate issued from the office of Medical Superintendent of Lok Nayak Hospital, wherein it was mentioned that the claimant suffered more than 60 per cent disability and also considering that as per the Schedule I, Part I of the Workmen's Compensation Act, 1923, loss of a hand and a foot is taken to be 100 per cent loss of earning capacity assessed the loss of earning capacity by taking 100 per cent disability into consideration. Although, the Tribunal has taken help of the criteria laid down under Workmen's Compensation Act in assessing loss of earning capacity of the respondent and came to the conclusion that the loss would come to Rs. 11,08,800 based on 100 per cent disability but ultimately, the Tribunal has awarded Rs. 7,50,000 towards loss of earning capacity. It would be thus evident that the Tribunal has not awarded the compensation amount towards loss of earning capacity based on 100 per cent disability but the award of said compensation amount of Rs. 7,50,000 is just above 60 per cent disability as per the disability certificate and, therefore, I do not feel that the said sum of Rs. It would be thus evident that the Tribunal has not awarded the compensation amount towards loss of earning capacity based on 100 per cent disability but the award of said compensation amount of Rs. 7,50,000 is just above 60 per cent disability as per the disability certificate and, therefore, I do not feel that the said sum of Rs. 7,50,000 towards loss of earning capacity requires any interference. 13. In view of the above discussion, No. interference is made in the award. 14. Vide order dated 24.5.2006 directions were given by this Court for release of 50 per cent of the compensation amount to the claimants. Thus, now the remaining amount with up-to-date interest at the rate of 7 per cent per annum from the date of institution of the petition till realization of the award shall be paid by the insurance company to the claimant. 15. With the above directions, the present appeal is disposed of.