Bulan Das vs Dharambeer and Others <BR> Reliance General Insurance Co. Ltd. Vs Bulan Das and Others

G.P. Mittal, J.—In view of the judgment dated 05.11.2012 passed by the Supreme Court of India in Civil Appeal No. 7874/2012, the

Appeal (MAC. APP. 814/2011) is restored to its original number. These two Appeals arise out of a judgment dated 06.06.2011 passed by the

Motor Accident Claims Tribunal (the Claims Tribunal) whereby a compensation of Rs. 18,69,000/- was awarded in favour of Bulan Das who

suffered injuries in a motor vehicle accident which occurred on 01.09.2010.

MAC.APP. 745/2011 has been filed by Bulan Das, who suffered amputation of both of his legs below knee, for enhancement of compensation

on the ground that the functional disability should have taken as 100% as against 88% taken by the Claims Tribunal. It is stated that the

compensation awarded towards non-pecuniary damages is on the lower side.

On the other hand, the plea of the Appellant Reliance General Insurance Co. Ltd. (in MAC.APP. 814/2011) is that the compensation awarded

is excessive and exorbitant inasmuch as an addition of 50% was made by the Claims Tribunal on account of future prospects in spite of the fact

that there was no evidence with regard to the same. It is contended that the compensation awarded towards non-pecuniary damages is on the

higher side.

For the sake of convenience, Appellant in MAC.APP. 745/2011 shall be referred to as Claimant and Appellant in MAC.APP. 814/2011 shall

be referred to as the Insurance Company.

The finding on negligence reached by the Claims Tribunal is not challenged by the Appellant Insurance Company; thus the same has attained

finality.

The Claims Tribunal awarded a compensation of Rs. 18,69,000/-, which is tabulated hereunder:

The trend of the Superior Courts is to award full and fair compensation. In the case of Raj Kumar Vs. Ajay Kumar and Another, , 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:-

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

Maharajadhiraj of Burdwan, Udaychand Mahatab Chand Vs. Subodh Gopal and Others, , R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt.

Ltd. and Others, and Baker v. Willoughby, 1970 AC 467 .

In Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. and Another, , 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:

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.

In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Others, , 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:-

At the same time we often find that a person injured in an accident leaves his family in greater distress vis-�-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.

LOSS OF FUTURE EARNING CAPACITY:

During inquiry before the Claims Tribunal, it was claimed that the injured was working as a delivery boy with M/s. Shiv Shakti Building Pvt.

Ltd. and earning Rs. 8,250/- per month. The Claimant failed to produce any evidence with regard to the income. The Claims Tribunal thus for the

purpose of making assessment of the loss of future earning capacity took the minimum wages of an unskilled worker. The Claims Tribunal made an

addition of 50% towards inflation on the basis of judgment of this Court in Narinder Bishal & Anr. v. Sh. Rambir Singh & Ors., (MAC.APP.

1007-08/2006) decided on 20.02.2008 and General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma

Thomas and others, and Smt. Sarla Dixit and another Vs. Balwant Yadav and others, .

Admittedly, the Claimant did not produce any evidence with regard to his future prospects. In Bijoy Kumar Dugar Vs. Bidyadhar Dutta and

Others, and Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Others, : Smt. Sarla Verma and Others Vs. Delhi Transport

Corporation and Another, , the Supreme Court laid down that augmentation towards future prospects has to be made only when there is an

evidence with regard to the future prospects of the deceased/victim or when he/she is in permanent employment. In the instant case, the Claimant

was neither in permanent employment nor did he produce any evidence with regard to his future prospects. Thus, addition of 50% towards future

prospects was not justified. On the other hand, there could be an addition of 30% on account of inflation on the basis of report of the Supreme

Court in Santosh Devi Vs. National Insurance Company Ltd. and Others, .

The Claims Tribunal took the functional disability on account of amputation of both lower limbs below knee to be 88% as was mentioned in

the disability certificate. In Raj Kumar Vs. Ajay Kumar and Another, , the Supreme Court brought out the difference between permanent disability

and functional disability resulting in the loss of earning capacity. It was laid down that the compensation on account of loss of earning capacity has

to be granted in accordance to the nature of job undertaken by the victim of motor accident. Paras 11 and 14 of the report are extracted

hereunder:

What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after

assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of

earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on

appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is

approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for

determination of compensation (see for example, the decisions of this Court in Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. and

Another, and Yadava Kumar Vs. The Divisional Manager, National Insurance Co. Ltd. and Another, .

x x x

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 percent, 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

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.

In the instant case, the Claimant was working as a delivery boy. In any case, he was a menial labour. In the circumstances, on account of

amputation of both of his lower limbs, it would be difficult for the Claimant to carry any menial work. Practically, the functional disability in his case

is 100%. The loss of future earning capacity thus comes to Rs. 14,88,240/- ( Rs. 5,300/- + 30% x 12x18) as against Rs. 15,12,000/- awarded by

the Claims Tribunal.

It is urged by the learned counsel for the Claimant that award of compensation of Rs. 75,000/- towards loss of amenities and Rs. 1,00,000/-

towards pain and suffering is on the lower side, whereas the learned counsel for the Insurance Company states that only a notional sum should be

awarded towards loss of amenities otherwise there would be duplication of the award.

In the case of Govind Yadav Vs. The New India Insurance Company Limited, , in case of amputation of leg above knee of a victim aged 24

years in an accident which took place in the year 2004, a compensation of Rs. 1,50,000/- was awarded towards pain and suffering and Rs.

1,50,000/- towards loss of amenities in life and loss of marriage prospects. The award of compensation of Rs. 1,00,000/- towards pain and

suffering is consequently increased to Rs. 1,50,000/-, whereas the compensation awarded towards loss of amenities is reduced from Rs. 75,000/-

to Rs. 40,000/-.

The compensation awarded is recomputed as under:

Thus, an award of Rs. 18,69,000/- cannot be said to be excessive and exorbitant. The overall compensation awarded is just and reasonable.

The Appeals are devoid of any merit; the same are accordingly dismissed.

The compensation awarded shall be released in favour of the Claimant in terms of orders passed by the Claims Tribunal.

Statutory amount of Rs. 25,000/-, if any, shall be refunded to the Appellant Insurance Company. Pending Applications stand disposed of.