Allowed

Surender v. Surender Pal Singh & Ors.

Delhi HC2 Dec 2011MAC.APP./168/2011

Case brief

AI extract

What is this about?

The High Court allowed the appeal against an award for motor accident compensation. The court modified the compensation by partially upholding the loss of earning capacity calculation and enhancing the non-pecuniary damages component from 1.5 lakhs to 2.5 lakhs due to the appellant's disability and loss of amenities.

What did the court decide?

Enhanced compensation awarded to 2.5 lakhs (2.5 lakhs total including 50k pain, 100k disfigurement, 100k amenities) with interest and FDR arrangement.

Surender Vs Surender Pal Singh & Ors. — Motor Accident Claims | Delhi HC (2011)

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on: 18^th November, 2011 Pronounced on: 2^nd December, 2011

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- MAC APP. 168/2011

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SURENDER ..... Appellant Through: Mr. Amit Kumar Pandey Advocate.

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Versus

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SURENDER PAL SINGH & ORS. ..... Respondents Through: Mr. Sameer Nandwani, Advocate for R-3/Insurance Company. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL

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J U D G M E N T

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G. P. MITTAL, J.

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The Appeal is for enhancement of compensation for the injury suffered by the Appellant in motor accident which took place on 16.03.2007. On the said date at about 11:45 AM the Appellant along with Mahesh, Satish and Sanjay was proceeding to Bahalgarh from Kumaspur Chowk, G.T.Road in a TSR No.HR69-5768. It is alleged that on account of the rash and negligent driving of the TSR by Respondent No.1 Surender Pal Singh, it overturned resulting in serious injuries on Appellant’s person. The Appellant remained admitted in Govt. Hospital in Sonepat from 16.03.2007 to 23.03.2007 and then Safdarjang Hospital from 31.03.2007 to 11.04.2007. The left hand had to be

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Page 1 of 5

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MAC APP 168/2011

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amputated below the elbow resulting in 75% disability in respect of the left hand.

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In the absence of any evidence as to the Appellant’s income, the Tribunal assumed the minimum wages of an unskilled worker i.e. 3470/- per month; took 75% permanent disability in respect of the left upper limb; to be 40% in respect of the whole body; applied the multiplier of 16 and granted 2,66,496/towards the loss of earning capacity. Since the Appellant could not work for six months, a sum of 20,820/- was awarded towards loss of income; 15,000/- towards special diet, 15,000/- towards conveyance in addition to a sum of 1,50,000/towards mental pain and agony, physical disfigurement and loss of amenities in life. The total compensation was computed as ` 4,67,316/-.

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In the Claim Petition, the Appellant gave the description of his job as ‘self employed’. In his testimony in the Court by way of Affidavit he testified that he was working as a labourer and was earning ` 5,000/- per month.

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The Appellant’s grievance is that the Tribunal erred in reducing the functional disability to 40% as against 75% given in the disability certificate. The loss of future prospects was not considered and the sum of ` 1.5 lacs awarded as non pecuniary damages towards pain and agony, disfigurement and loss of amenities of life was on the lower side.

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Page 2 of 5

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MAC APP 168/2011

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It is submitted by the learned counsel for the Appellant that the Appellant was working as a construction worker and thus amputation of left hand at elbow would result in 100% functional disability. I would not agree. In the Claim petition or even during evidence it was not the Appellant’s case that he was working as a construction worker.

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On the other hand, it was stated that he was a ‘self employed’ person. Moreover, even if, it is assumed that the Appellant was working as a construction worker, he was to show as to what alternative work he could carry and how much earning capacity was affected.

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In Raj Kumar v. Ajay Kumar & Anr. (2011) 1 SCC 343 , the Supreme Court held as under:-

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“13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was

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MAC APP 168/2011

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earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.”

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The Appellant’s case set up during the arguments that he was working as a construction worker appears to be an afterthought in view of the earlier vague stand that he was a self-employed person. Even if he was employed as a construction worker, he could definitely work as a Salesman at any shop or do any other work which would primarily involve use of just his right hand.

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In the circumstances, the Tribunal rightly considered 40% as the loss of earning capacity. Thus, the compensation towards loss of earning capacity to the extent of ` 2,66,496/- was rightly granted by the Tribunal.

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Coming to the award of ` 1.5 lacs towards pain and suffering, physical disfigurement and loss of amenities of life, I may say that the Appellant would always have difficulty in carrying out his day to day activities including driving a bicycle or using a public transport.

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In Oriental Insurance Company Limited v. Vijay Kumar Mittal & Ors. 2008 ACJ 1300 after referring to a number of decision, this Court awarded a sum of ` 2.5 lacs towards non pecuniary damages.

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Page 4 of 5

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In my view, the compensation of 1.5 lacs awarded under this head needs to be raised. I award a sum of 50,000/- towards pain and suffering, 1,00,000/- towards disfigurement and another 1,00,000/- towards loss of amenities in life.

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Respondents are jointly and severely liable to pay the enhanced compensation of ` 1 lac with interest @ 7.5 % per annum from the date of filing of the petition till realization of the amount. Respondent No.3 United India Insurance Company Limited is directed to deposit the enhanced compensation with Registrar General of this Court within six weeks from today.

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25% of the enhanced amount shall be released to the Appellant forthwith. Rest 75% along with proportionate interest shall be held in FDR for a period of five years in any Nationalized Bank preferred by the Appellant.

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Appellant shall be entitled to interest on monthly /quarterly basis. The Appellant shall not be permitted to obtain any loan or premature encashment of the FDR.

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Appeal is allowed and the impugned award is modified in above terms.

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Copy of the order be sent to the Trial Court for information.

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(G.P. MITTAL) JUDGE

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DECEMBER 02, 2011/ vk

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MAC APP 168/2011

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Surender v. Surender Pal Singh & Ors.

Case brief

What is this about?

What did the court decide?

Surender v. Surender Pal Singh & Ors.

Case brief

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