SANJAY KUMAR Vs ASHOK KUMAR
Bench: SUDHANSU JYOTI MUKHOPADHAYA,V. GOPALA GOWDA
Case number: C.A. No.-000896-000896 / 2014
Diary number: 18937 / 2013
Advocates: NITIN KUMAR THAKUR Vs
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NON REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 896 OF 2014 (Arising out of SLP(C) NO. 21303 OF 2013)
SANJAY KUMAR ………APPELLANT Vs.
ASHOK KUMAR & ANR. ………RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
2. This appeal has been filed against the final
impugned judgment and order dated 21.03.2013
passed by the High Court of Delhi at New Delhi in
MAC Appeal No.549 of 2007, urging various legal
grounds and contentions for further enhancement
of compensation in the case of a motor accident
involving the appellant whereby the High Court
enhanced the compensation awarded by the Motor
Accident Claims Tribunal, Delhi (in short ‘the
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Tribunal’) by 1,52,336/- to a total sum of
6,35,808/-. The Tribunal had awarded
compensation of 4,83,472/- under various heads
along with 7% interest per annum from the date of
filing of the petition till the date of
realization of payment.
3. The brief facts of the case are given
hereunder:
The appellant, Sanjay Kumar received injuries
in a roadside accident on 28.09.2005 due to the
rash and negligent driving of the Truck No.HR-
38D-9546, the offending vehicle. The appellant
remained under treatment from 26.10.2005 to
10.12.2005 and due to injuries sustained, his
right leg above the knee had to be amputated. As
per Entry 18 in Part II of Schedule I of the
Workmen’s Compensation Act, 1923, the loss of
earning capacity was assessed at 70% due to the
permanent disability suffered by the appellant on
account of post-traumatic amputation of his right
leg above the knee. The appellant was employed as
an embroidery worker and claimed compensation of
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15 lakhs from the respondents. Respondent No.1
is the owner and respondent No.2 is the insurer
of the offending vehicle. The appellant examined
two witnesses in support of his claim and
documents were taken on record as evidence. PW-1
Sushil Kumar, the record clerk who filed
treatment record and MLC as Ex.PW-1/A and Ex.PW-
1/B respectively, and, PW-2 Sanjay Kumar, the
appellant himself, and he filed his treatment
record and bills as Exs.PW-2/1 to PW-2/19, his
permanent disability certificate Ex.PW-2/20 and
concession certificate Ex.PW-2/21. The
respondents did not lead any evidence.
4. The Tribunal held that the accident took place
due to the rash and negligent driving of the
offending vehicle as a result of which the
appellant sustained injuries and awarded
pecuniary as well as non-pecuniary damages. The
compensation was calculated by assigning minimum
wages at 3166/- per month, of which loss of
earning capacity was calculated at 70% which
comes to 2216/- per month, i.e. 26,592/- per
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annum. Multiplier of 16 was taken. A lump sum
compensation of 8000/- was given to the
appellant under the head of ‘medical expenses’.
Hence, the total pecuniary compensation given was
4,33,472/-. A sum of 50,000/- was given as non-
pecuniary damages on account of mental pain and
agony and loss of future enjoyment of life
suffered by him. Thus, a total compensation of
4,83,472/- was awarded to the appellant with
interest @ 7% per annum from the date of filing
of the petition till the date of realization.
Both the respondents were held to be jointly and
severally liable to pay the compensation but
respondent No.2 being the insurer was held to
have the primary obligation to pay compensation
on behalf of the insured and was directed to
deposit the award amount within one month from
the date of the order.
5. Aggrieved by the order of the Tribunal, the appellant filed an appeal in the High Court
asking for enhancement of the compensation on the
ground that the Tribunal ought to have awarded
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enhanced compensation on the basis of evidence
adduced. The contentions of the appellant will be
taken up in detail at a later stage. The High
Court enhanced the compensation to 6,35,808/- by
awarding 5,42,808/- under the head ‘loss of
future earning capacity’ by taking a multiplier
of 18. Further, 25,000/- as conveyance charges
and 10,000/- as Attendant charges were also
awarded. The compensation of 50,000/- awarded
under the head ‘Mental pain and agony’ and
8,000/- for medical bills as awarded by the
Tribunal was maintained as it is. Therefore, the
High Court awarded a sum of 1,52,336/- over and
above the compensation awarded by the Tribunal at
the same rate of interest i.e. 7% per annum and
the respondent No.2 was directed to pay this
enhanced amount with interest in favour of the
appellant within four weeks from the date of
receipt of copy of the order.
6. Not satisfied with the compensation awarded
by the High Court, the appellant has appealed to
this Court, urging various legal contentions in
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support of further enhancement of the
compensation.
7. The learned counsel for the appellant has
argued that the appellant was employed as an
embroiderer and that it is a skilled job and he
used to earn 4500/- per month. Further, he is
entitled to compensation against loss of future
prospects in income and that the compensation
under the head of ‘pain and suffering’ should not
be less than 2 lacs as the permanent disability
is 70% and that his marriage prospects have been
greatly diminished because of the accident and he
should be awarded compensation under the head,
‘loss of marriage prospects’ as well. It was also
contended that the High Court was not justified
in not awarding compensation for the loss of
earning for at least 3 months during the
appellant’s treatment period. Further, on the
point of interest, it was contended that the High
Court should have enhanced the rate of interest
from 7% to 9% per annum.
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8. We have heard the rival legal contentions
advanced on behalf of the parties. In our
considered view, the appellant is entitled to be
awarded compensation based on the wages for a
skilled worker, as he is an embroiderer and the
same cannot be considered as an unskilled work.
The minimum wages in Delhi for a skilled worker
as on 01.08.2005 was 3589.90/- per month. The
appellant has claimed that he was earning
4,500/- per month from his work as an
embroiderer. We will accept his claim as it is
not practical to expect a worker in the
unorganized sector to provide documentary
evidence of his monthly income as per decision of
this Court in the case of Ramachandrappa v.
Manager, Royal Sundaram Alliance Insurance
Company Limited 1, wherein it was held as under:-
“13. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs. 4500/- per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs. 3000/- only on the assumption that the wages
1 (2011) 13 SCC 236
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C.A.@SLP(C)No.21303 of 2013
of a labourer during the relevant period viz. in the year 2004, was Rs. 100/- per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs 3000/- per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.
14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.
15. In the present case, the appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was
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between Rs. 100/- to Rs 150/- per day or Rs. 4500/- per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs. 4500/- to Rs. 3000/- per month. We, therefore, accept his statement that his monthly earning was Rs. 4500/-.”
Thus, in the present case, a monthly income of
4,500/- as claimed by the appellant for his work
as an embroiderer is reflective of ground
realities and is not exorbitant by any standard
and in the interest of justice, we should accept
his claim. Further, he was also not cross-
examined on the aspect of the nature of his work
as an embroiderer and both the Tribunal and the
High Court have erred in holding that the
appellant’s work was of an unskilled nature.
9. ‘Loss of future prospects’ should be added to
this amount as it cannot be accepted that an
embroiderer will not have a future increment in
income. As per the case of Sarla Verma & Ors. v.
Delhi Transport Corporation & Anr.2, keeping in 2 (2009) 6 SCC 121
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C.A.@SLP(C)No.21303 of 2013
mind the young age of the appellant, he is
entitled to 50% of his income as future increase
in income ( 4,500/- + 2250/- = 6750/-). We will apply a multiplier of 18 as taken by the High
Court in the impugned judgment and as per Sarla
Verma’s case (supra). The appellant’s permanent
disability and loss of earning capacity was
assessed at 70% and we will not interfere with
that. Hence, the total amount of compensation due
to loss of earning capacity along with future
prospects in income will come to
10,20,600/-[ 6,750 x 70/100 x 12 x 18].
10. Further, in the case of Raj Kumar v. Ajay
Kumar & Anr.3, this Court has succinctly
explained the guidelines and heads for awarding
compensation in cases of disability due to a
motor accident. The relevant paragraphs are
extracted below:
“6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages)
3 (2011) 1 SCC 343
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C.A.@SLP(C)No.21303 of 2013
(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)
(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)
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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. 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).”
11. The appellant has further contended that he
should be awarded compensation for loss of income
suffered during the period of treatment i.e.
26.10.2005 to 10.12.2005. As the accident took
place on 28.09.2005, this comes to a period of
around 3 months. Keeping in view the principles
espoused in the aforesaid judgment, we hereby
award an amount of 13,500/- for this period
( 4,500 x 3) taking the monthly income of
4,500/-, thus, bringing the total compensation
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under the broad head of loss of income to
10,34,100/-.
12. Now, we will assess the compensation awarded
under the other heads. With respect to medical
expenses, attendant charges and conveyance
charges, as well as possible future medical
costs, we will award a total sum of 75,000/- as
he has suffered permanent disability due to
amputation of his right leg. The appellant will
need assistance in order to travel and move
around, and regular check-ups and will most
likely use a crutch to walk, all of which will
incur expenses. On the point of loss of marriage
prospects, we feel that it is a major loss,
keeping in mind the young age of the appellant
and the High Court has gravely erred in not
awarding adequate compensation separately under
this head and instead clubbed it under ‘loss of
future enjoyment of life’ and ‘pain and
suffering’. We thereby award 75,000/- towards
loss of marriage prospects. Further, as per the
case of Govind Yadav v. New India Insurance Co.
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Ltd.4, wherein the appellant suffered amputation
of the leg, this Court awarded a sum of
1,50,000/- towards ‘pain and suffering’ caused
due to amputation of the leg. Therefore, towards
‘mental agony and pain and suffering’, we award a
sum of 1,50,000/- as the appellant has suffered
tremendously due to the accident in terms of the
pain and suffering involved in the amputation.
Loss of a limb causes a profusion of distress and
the appellant has to deal with the same for the
rest of his life. We feel it is justified to
award the aforesaid amount under this head as he
might have to deal with discrimination and stigma
in society due to the fact that he is an amputee.
13. Further, it is necessary to award an amount
under the head of ‘loss of amenities’ also as the
appellant will definitely deal with loss of
future amenities as he has lost a leg due to the
accident. The injury has permanently disabled the
appellant, thereby reducing his enjoyment of life
and the full pursuit of all the activities he
4 (2011) 10 SCC 683
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C.A.@SLP(C)No.21303 of 2013
engaged in prior to the accident. We thereby
award a sum of 1,00,000/- towards ‘loss of
amenities’. Along with the compensation under
conventional heads, the appellant is also
entitled to costs of litigation as per the legal
principle laid down in the case of Dr. Balram
Prasad v. Dr. Kunal Saha & Ors.5 Therefore, under
this head, we find it just and proper to award
25,000/- towards costs of litigation.
14. Thus, the total compensation, the appellant
is entitled to is given hereunder:
Head of compensation
Amount
Loss of income: Loss of earning capacity and future prospects of income + Loss of earnings during period of treatment
10,20,600/- + 13,500/- = 10,34,100/-
Medical expenses, attendant and conveyance costs and future medical costs
75,000/-
5 (2013) 13 SCALE 1
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C.A.@SLP(C)No.21303 of 2013
Loss of marriage prospects
75,000/-
Mental agony, pain and suffering
1,50,000/-
Loss of amenities 1,00,000/- Cost of litigation
25,000/-
Total compensation:
14,59,100/-
15. Further, as per the case of Municipal
Corporation of Delhi v. Uphaar Tragedy Victims
Association & Ors.6, we find it just and proper to increase the interest awarded from 7% to 9%
per annum. Hence, the total compensation the
appellant is entitled to is 14,59,100/- along
with 9% interest per annum from the date of the
accident till the date of realization.
16. The Insurance Company is directed to deposit
50% of the awarded amount with proportionate
interest within four weeks from the date of
receipt of a copy of this order, after deducting
the amount if already paid, in any of the
6 (2011) 14 SCC 481
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Nationalized Bank of the choice of the appellant
for a period of 3 years. During the said period,
if he wants to withdraw a portion or entire
deposited amount for his personal or any other
expenses, including development of his asset,
then he is at liberty to file application before
the Tribunal for release of the deposited
amount, which may be considered by it and pass
appropriate order in this regard.
The rest of 50% amount awarded with
proportionate interest shall be paid to the
appellant/claimant by way of a demand draft
within four weeks. The Insurance Company is
further directed to submit compliance report
before this court within six weeks.
17. The appeal is accordingly allowed. No costs.
………………………………………………………………………J. [SUDHANSU JYOTI MUKHOPADHAYA]
………………………………………………………………………J.
[V. GOPALA GOWDA] New Delhi, January 24, 2014
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