Delhi High Court
Vikas Kumar vs Sunit Kumar & Anr on 27 August, 2014
Author: Jayant Nath
Bench: Jayant Nath
$~A-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27.08.2014
+ MAC.APP. 599/2013
VIKAS KUMAR ..... Appellant
Through Mr.O.P.Mannie, Advocate
versus
SUNIT KUMAR & ANR ..... Respondent
Through Mr.Pankaj Seth, Advocate for the
Insurance Company/R-2
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeal is filed by the claimant seeking enhancement of compensation awarded by the Tribunal. The claim petition was filed by the appellant under section 166 and 140 of the Motor Vehicles Act, 1988 pursuant to an accident. On 02.05.2007 the appellant Shri Vikas Kumar was going on his motorcycle from his village to Delhi when he was hit by a Maruti Esteem Car driven by respondent No.1. He suffered injuries and was assessed as suffering from permanent disability of 86% in relation to left lower limb.
2. Based on the evidence of the parties the Tribunal concluded that the accident took place due to the rash and negligent driving of respondent No.1.
3. On compensation the Tribunal awarded the following compensation:-
Mac.App. 599/2013 Page 1 of 5"Permanent disability of the petitioner Rs.1,00,000/- Medicines and medical treatment Rs.0,00,5,000/-
Loss of wages Rs.1,02,576/-
Loss of amenities of life Rs.1,00,000/-
Pain and suffering Rs.1,00,000/-
Disfigurement Rs.1,00,000/-
Conveyance Rs.0,10,000/-
Special Diet Rs.0,10,000/-
Total Rs.5,27,576/-"
4. Learned counsel for the appellant submits that firstly the Award/compensation awarded by the Tribunal completely ignores the loss of income suffered by the appellant on account of his being denied future promotion in his present job. He submits that the appellant is employed as a Constable in Delhi Police. He has suffered 86% permanent disability in relation to his left lower limb. Hence, though he continues to be in his job, on account of his physical condition he has become ineligible for all future promotions. He was stated to be 29 years of age on the date of the accident and suffered immensely on account of loss of promotion. Hence, it is submitted that the compensation awarded should be enhanced keeping in mind this aspect.
5. He relies upon the judgment of the Punjab and Haryana High Court in the case of National Insurance Co.Ltd. vs. Rajbir Singh and others, 2012 ACJ 1826 and judgment of the Delhi High Court in the case of National Insurance Co.Ltd. vs. Harbans Singh & Ors. delivered on 28.3.2014 in the MAC APP.394/2011.
6. He secondly submits that the Tribunal has awarded a very meagre amount on account of conveyance. Only a sum of Rs.10,000/- has been awarded for conveyance. He submits that on account of the disability suffered by the appellant he would not be able to commute using any public Mac.App. 599/2013 Page 2 of 5 transport and would have to depend upon hiring an auto rickshaw for travelling even to his office or otherwise.
7. Relying upon the judgment of the Supreme Court in the case of Kavita vs. Deepak and Others, 2012(7) SCALE 500, it is lastly submitted that compensation on account of loss of expectation of life and pain and suffering is also on the lower side.
8. Learned counsel appearing for respondent No.2/insurance company submits that the compensation awarded to the appellant is already just and reasonable and there shall be no reason or occasion for this Court to interfere in the Award especially keeping in view the fact that the appellant is a serving constable in Delhi Police and has suffered no pecuniary loss.
9. Coming to the first submission of learned counsel for the appellant, on account of loss of income due to loss of future promotions. The Tribunal has granted a sum of Rs.1 lac on account of permanent disability as the appellant is in government service. The Tribunal noted that physical test of the injured was not the only criteria for his promotion as there are several other tests/steps to successfully qualify for promotion. The Tribunal hence concluded that future promotions cannot be totally ruled out.
10. We may look at the evidence on record. In his affidavit by way of evidence PW-1 the appellant has stated that he has no chance of future promotion. In his cross-examination he has clarified that there is no automatic promotion in his service to the post of Head Constable.
11. This Court in the case of National Insurance Company Limited vs. Harbans Singh on the issue of loss of promotion held as follows:-
"6. It is not in dispute that the claimant was 44 years of age on the date of accident. He was a Head Constable in Delhi Police and for further promotion, medical fitness is required. It is not the case where the service of the claimant remains only for 2-3 years and he was not Mac.App. 599/2013 Page 3 of 5 eligible for the higher promotion. In all the „Forces‟ including Delhi Police, if a person is physically fit, certainly he will get the promotion as per the service rules."
12. Being a uniform force, judicial notice of the fact can be taken that given the condition of the appellant and his being physically unfit, in all probabilities chances of any promotion in Delhi Police are quite remote. In these circumstances, it would be appropriate that some compensation be awarded to the appellant on account of his loss of pay due to loss of promotion chances.
13. The Tribunal has assessed the income of the appellant on the date of the accident as Rs.12,822/- per month. The permanent physical disability of the appellant has been assessed as 86% in relation to his left lower limb. In the facts and circumstances his functional disability is taken as 50%.
14. Keeping in view the above factors, the loss of income on account of functional disability would come to Rs.12,822 x 50% x 12 x 17=13,07,844/-. 50% of this in the facts of this case can be taken as loss of income due to loss of promotion chances. The total loss of income on account of loss of promotion would be Rs.6,53,922/-.
15. Regarding conveyance charges, there is merit in the contention of learned counsel for the appellant that the appellant would not be able to use any public conveyance given the nature of his disability. He may also not be able to drive his motorcycle. Accordingly, instead of Rs.10,000/- a sum of Rs.50,000/- is awarded on account of conveyance.
16. Coming now to the last submission of learned counsel for the appellant pertaining to pain and suffering and loss of amenities of life. The Tribunal has already awarded Rs.1 lac each respectively under the above heads. The appellant remains in government service where he may be Mac.App. 599/2013 Page 4 of 5 entitled to various amenities as available to a uniform force. In the facts and circumstances of the case, in my view there would be no justification to increase the compensation amount under the aforesaid head.
17. Hence, the appellant would now be entitled to the following compensation:-
"Permanent disability of the petitioner Rs.1,00,000/- Loss of income due to loss of promotion Rs.6,53,922/- Medicines and medical treatment Rs.0,00,5,000/-
Loss of wages Rs.1,02,576/-
Loss of amenities of life Rs.1,00,000/-
Pain and suffering Rs.1,00,000/-
Disfigurement Rs.1,00,000/-
Conveyance Rs.0,50,000/-
Special Diet Rs.0,10,000/-
Total 12,21,438/-
18. Respondent No.2 Insurance Company may deposit the enhanced compensation amount with 7.5% interest on the enhanced amount from the date of filing of the claim petition till deposit in Court within four weeks from today. On deposit of the amount it shall be released to the appellant.
19. Needless to add that there would be no occasion to comply with the directions in the Award that in case awarded amount is not deposited within the time granted, the General Manager of respondent No.2 company will show reasons for non-compliance.
20. Appeal stands disposed of.
JAYANT NATH, J.
AUGUST 27, 2014 n Mac.App. 599/2013 Page 5 of 5