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Accident claim – M.V.Act – Embroider – a skilled worker – his monthly income Rs.4,500/- not heavy – un married – leg was removed – Tribunal granted Rs. 4 lakhs and odd – High court enhanced to Rs.6 lakhs and odd – Apex court after taking all facts and law in to consideration, further enhanced to Rs. 14,59,100/- along with 9% interest per annum from the date of the accident till the date of realization as claimed by petitioner = SANJAY KUMAR ………APPELLANT Vs. ASHOK KUMAR & ANR. ………RESPONDENTS = 2014 ( January – Vol – 1) Judis.nic.in/ S.C./ file name =41174

Accident claim – M.V.Act – Embroider – a skilled worker  – his monthly income Rs.4,500/- not heavy – un married – leg was removed – Tribunal granted Rs. 4 lakhs and odd – High court enhanced to Rs.6 lakhs and odd – Apex court after taking all facts and law in to consideration,  further enhanced to Rs. 14,59,100/- along with 9% interest per annum from the date of the accident till the date of realization as claimed by petitioner  =

 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  Tribunal’)  by  [pic]1,52,336/-  to  a  total  sum  of

      [pic]6,35,808/-.   The   Tribunal   had   awarded   compensation    of

      [pic]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.=

The minimum wages in Delhi for a skilled worker as on  01.08.2005  was

      [pic]3589.90/- per month.  The  appellant  has  claimed  that  he  was

      earning          [pic]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  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 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/-.”

 

the High Court have  erred

      in holding that the appellant’s work was of an unskilled nature.

 

 

 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

      engaged  in  prior  to  the  accident.  We  thereby  award  a  sum  of

      [pic]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   [pic]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  |[pic]10,20,600/- +            |

|and future prospects of   |[pic]13,500/- =               |

|income +                  |[pic]10,34,100/-              |

|Loss of earnings during   |                              |

|period of treatment       |                              |

|Medical expenses,         |      [pic]75,000/-           |

|attendant and conveyance  |                              |

|costs and future medical  |                              |

|costs                     |                              |

|Loss of marriage prospects|      [pic]75,000/-           |

|Mental agony, pain and    |    [pic]1,50,000/-           |

|suffering                 |                              |

|Loss of amenities         |    [pic]1,00,000/-           |

|Cost of litigation        |      [pic]25,000/-           |

|Total compensation:       |   [pic]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

      [pic]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 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.

2014 ( January – Vol – 1) Judis.nic.in/ S.C./ file name  =41174

 

SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA

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 Tribunal’) by [pic]1,52,336/- to a total sum of
[pic]6,35,808/-. The Tribunal had awarded compensation of
[pic]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
[pic]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 [pic]3166/- per month, of which loss of earning
capacity was calculated at 70% which comes to [pic]2216/- per month,
i.e. [pic]26,592/- per annum. Multiplier of 16 was taken. A lump sum
compensation of [pic]8000/- was given to the appellant under the head
of ‘medical expenses’. Hence, the total pecuniary compensation given
was [pic]4,33,472/-. A sum of [pic]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
[pic]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 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 [pic]6,35,808/- by awarding
[pic]5,42,808/- under the head ‘loss of future earning capacity’ by
taking a multiplier of 18. Further, [pic]25,000/- as conveyance
charges and [pic]10,000/- as Attendant charges were also awarded. The
compensation of [pic] 50,000/- awarded under the head ‘Mental pain and
agony’ and [pic]8,000/- for medical bills as awarded by the
Tribunal was maintained as it is. Therefore, the High Court awarded a
sum of [pic]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 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 [pic]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 [pic]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.
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
[pic]3589.90/- per month. The appellant has claimed that he was
earning [pic]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 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 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 [pic]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 mind the young age of the
appellant, he is entitled to 50% of his income as future increase in
income ([pic]4,500/- + 2250/- = [pic]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 [pic]10,20,600/-[[pic]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)
(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) 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 [pic]13,500/- for this period ([pic]4,500 x 3) taking
the monthly income of [pic]4,500/-, thus, bringing the total
compensation under the broad head of loss of income to
[pic]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 [pic]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
[pic]75,000/- towards loss of marriage prospects. Further, as per the
case of Govind Yadav v. New India Insurance Co. Ltd.[4], wherein the
appellant suffered amputation of the leg, this Court awarded a sum of
[pic]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 [pic]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
engaged in prior to the accident. We thereby award a sum of
[pic]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 [pic]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 |[pic]10,20,600/- + |
|and future prospects of |[pic]13,500/- = |
|income + |[pic]10,34,100/- |
|Loss of earnings during | |
|period of treatment | |
|Medical expenses, | [pic]75,000/- |
|attendant and conveyance | |
|costs and future medical | |
|costs | |
|Loss of marriage prospects| [pic]75,000/- |
|Mental agony, pain and | [pic]1,50,000/- |
|suffering | |
|Loss of amenities | [pic]1,00,000/- |
|Cost of litigation | [pic]25,000/- |
|Total compensation: | [pic]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
[pic]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 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
———————–
[1] (2011) 13 SCC 236
[2] (2009) 6 SCC 121
[3] (2011) 1 SCC 343
[4] (2011) 10 SCC 683
[5] (2013) 13 SCALE 1
[6] (2011) 14 SCC 481
———————–
17

 

 

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