Davinder Singh Chauhan vs Shivani Kumar Rawat & Ors on 22 July, 2024

[Cites 12, Cited by 0]

Delhi High Court

Davinder Singh Chauhan vs Shivani Kumar Rawat & Ors on 22 July, 2024

1. The instant appeal has been filed by the appellant under Section 173 of The Motor Vehicles Act, 1988 seeking enhancement of the compensation granted by the learned Motor Accident Claims Tribunal dated 18 th October, 2016 in Suit bearing no. 556/11 before the PO-MACT-02 (South-East District), Saket.

2. The appellant was riding as pillion rider on his motorcycle bearing No.DL 3S- BV-4464, alongwith his son to his office on 22nd April, 2011. Around 10.25 am, the bike stopped at Red Light near Govind Puri Metro Station when a Honda City Car bearing no. DL- 3C- AK4914 hit the Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 1 of 14 Signing Date:24.07.2024 18:54:45 backside of their motorcycle, resultantly, the appellant and his son fell down from the motorcycle resultantly sustained injuries.

3. Pursuant to which, a criminal case bearing FIR no. 121/2011 u/s 279/338 of the Indian Penal Code, 1860 (hereinafter "IPC") was registered at Police Station Okhla Industrial Area.

4. The appellant eventually filed a claim before the learned MACT in Suit no. 556/11. The learned Tribunal vide judgment dated 18 th October, 2016 awarded to a compensation of Rs. 3,79,240/- along with interest @9 % per annum from the date of the filing of the appeal till date of realization of the amount as compensation.

5. Being aggrieved by the aforesaid judgment/award, the appellant filed the instant appeal for enhancement of the quantum of compensation awarded by the learned Tribunal.

6. Learned counsel appearing on behalf of the appellant submitted that the impugned award passed by the learned Tribunal is against the settled position of law and the learned Tribunal also failed to take into consideration the material on record.

7. It is submitted that the appellant was suffering from 22% permanent disability in his left lower limb and was working as a driver during the time accident happened and due to his disability he had to leave his job, therefore, his disability is 100%. It is further submitted that the learned Tribunal wrongly assessed his disability to the extent of 11%.

8. It is submitted that the learned Tribunal meagrely awarded the compensation of Rs.20,000/- towards pain and suffering and Rs.15,000/-

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towards special diet with respect to the injuries sustained by the appellant. Since, the appellant suffered compound fracture on his left leg and had a rod implanted in his leg and the treatment for the same continued for a duration of more than 3 years, hence, the amount awarded for the same is very less for the said heads.

9. It is further submitted that the learned Tribunal erred in awarding insufficient quantum of compensation towards the heads of loss of amenities and enjoyment of life, compensation for disfigurement, loss of income due to treatment.

10. In view of the aforesaid submissions, the learned counsel for the appellant sought that the reliefs as prayed in the instant appeal may be granted and the appeal may be allowed.

11. The learned counsel appearing on behalf of the respondent no.3 / Tata AIG, General Insurance vehemently opposed the arguments advanced by the learned counsel appearing on behalf of the appellant, submitting to the effect that the impugned award passed by the learned Tribunal does not merit any inference and is passed in accordance with the settled position of law.

12. It is further submitted that the learned Tribunal has rightly taken the factual scenario into consideration and accordingly, awarded just amount of compensation to the appellant.

13. It is contended that the appellant is not entitled for enhancement of compensation as the quantum of compensation awarded by the learned Tribunal to the appellant is "just compensation" by taking into account the various factors.

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14. It is submitted that Detailed Accident Report (hereinafter referred to as "DAR") filed by the police station is a based on false, frivolous, incorrect and misleading facts thereby, the appellant is guilty of supressio veri and suggestio falsi.

15. It is further submitted that the DAR is based on surmises and conjectures and the appellant's claims are totally baseless and without any substance.

16. It is contended that the instant appeal is filed with malafide intention to pressurize the respondent no. 3 to capitulate to the unlawful demands of the appellant.

17. In view of the aforesaid submissions, the learned counsel for the respondent no. 3 prays that the instant appeal being of devoid of any merit, may be dismissed.

18. Heard the learned counsel for the parties and perused the material on record.

19. The appeal is admitted.

20. The limited challenge of the appellant to the impugned award is that the appellant had suffered disability assessed at 22% in the left lower limb. The appellant at the time of the accident was working as a driver and, therefore, the learned Tribunal has erred in accessing the functional disability suffered by the appellant at only 11% towards the whole body.

21. Before adverting to the merits of this case, this Court will delve into the concept of "functional disability".

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22. The concept of functional disability is the quantum of disability in terms of the person's professional capacity, which the person has suffered as a result of the accident. For example- If a mason and a professional doing desk job, both sustains similar degree of injury on their leg, however, the functional disability of mason is of much higher degree than the functional disability of the professional doing desk job. Since, the mason will become much more incompetent to perform his job, than a professional who is doing a desk job.

23. The concept of functional disability has been reiterated by the Hon'ble Supreme Court in the case of Mohan Soni v. Ram Avtar Tomar, (2012) 2 SCC 267 . The relevant extract of the judgment is reproduced herein below:

"10. This Court in K. Janardhan case [(2008) 8 SCC 518 :

(2008) 2 SCC (L&S) 733] , set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation. In K. Janardhan [(2008) 8 SCC 518 : (2008) 2 SCC (L&S) 733] this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v.

Srinivas Sabata [(1976) 1 SCC 289 : 1976 SCC (L&S) 52] in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.

11. In a more recent decision in Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] this Court considered in great detail the correlation between the physical disability suffered in an accident and the Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 5 of 14 Signing Date:24.07.2024 18:54:45 loss of earning capacity resulting from it. In paras 10, 11 and 13 of the judgment in Raj Kumar [(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] this Court made the following observations: (SCC pp. 349-50) "10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent 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 Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 6 of 14 Signing Date:24.07.2024 18:54:45 terms 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 the 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 v. New India Assurance Co.

Ltd. [(2010) 10 SCC 254 : (2010) 4 SCC (Civ) 153 : (2010) 3 SCC (Cri) 1258] and Yadava Kumar v.

National Insurance Co. Ltd. [(2010) 10 SCC 341 :

(2010) 4 SCC (Civ) 168 : (2010) 3 SCC (Cri) 1285] ) ***

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 earlier carrying on, or (iii) whether Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 7 of 14 Signing Date:24.07.2024 18:54:45 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."

(emphasis supplied)

12. In the light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellant's earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart-puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart- puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb, etc. should not take into account such indeterminate factors.

13. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 8 of 14 Signing Date:24.07.2024 18:54:45 in the unorganised sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income."

24. The Hon'ble Supreme Court in the case of Sandeep Khanuja Vs. Atul Dande and Anr., (2017) 3 SCC 351 enunciated that whilst awarding compensation, the Court has to assess whether the permanent disability caused has any adverse effect on the earning capacity of the claimant. The relevant paragraph of the judgment is quoted hereunder :-

"The crucial factor which has to be taken into consideration thus is to assess whether the permanent disability has any adverse effect on the earning capacity of the injured. We feel that the conclusion of the MACT on the application of aforesaid test is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a chartered accountant he is supposed to do sitting work and therefore his working capacity is not impaired..... A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily able. Movements of the appellant have been restricted to a large extent and that too at a young age."

25. The functional disability of the claimant is an important consideration when the Tribunal is adjudicating upon the compensation payable to the claimant. There is no straightjacket formula for the ascertaining the Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 9 of 14 Signing Date:24.07.2024 18:54:45 functional disability, the Tribunal shall adjudicate upon the same on case to case basis.

26. Whilst adjudicating upon the quantum of compensation to be awarded to the claimant who has suffered certain permanent disability, the Tribunal must also take into consideration the socio-economic background of the claimants especially in cases where the appellant is from an economically weaker background as such people very often face an additional layer of discrimination due to bodily disabilities and a new disability worsens everything for them. In such a scenario, the Tribunal must ensure that the claimant is restored to his position, before the occurrence of the disability. Hence, the Tribunal shall ensure that the compensation awarded to the claimant is "just compensation".

27. Now adverting to the merits of the instant appeal, the impugned award is reproduced herein below:

"19. Loss of future income: Appellant in his examination filed copy of Driving licnece (Ex. PWl/D) wherein his date of birth is mentioned as 01.01.1^61 Therefore, he is around 44 years of age at the time of accident 22.04.2011. It is ^ ^natural that with this disability and injuries the appellant entire future career/earning capacity has been destroyed. Present injury will also dimimsh his earning capacity. As per disability certificate, appellant suffered 22% disability in his both lower limb, in view of the judgment of Delhi High Court titled as "Laxmi Narain Vs. Trilochan Singh & Ors., FAO No. 289/99, dated 04.05.2009, Delhi", the total functional disability towards whole body is assessed around 11%.

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20. Appellant's income is assessed at the rate of Rs. 10,000/- per month. Appellant being aged around 44 years, he is also entitled for 30% increase in income towards future prospect [relied upon Sanjay verma Vs Haryana Roadways 2014 ACJ 692 (SC), Mirajuddin Vs Shonki Ram & Ors MAC App 604/2011 dated 03.12.2013 (Delhi), Reliance General Insurance Company Litimed Vs Haresh Kumar @ Harish Kumar MAC App no. 399/12 dated 27.05.2014 (Delhi), Uttranchal Transport Corporation Vs. Navneet Jerath 2013 ACJ 1966 (Delhi), Neerupam Mohan Mathur Vs New India Assurance Company 2013 (14) see 15]. Therefore, his monthly income is assessed around (Rs. 10,000/-+ Rs. 30% of Rs. 10,000/-= Rs. 13,000/-). Apex court in Raj Kumar Vs. Ajay Kumar 2011(1) SCC 343, mandated multiplier method for calculation of compensation for future loss of earning capacity which is as follows:

(a) Annual income = Rs. 13,000/-X 12=Rs. 1,56,000/-

(b) loss of future earning per annum (9% of the prior annual income) = Rs. 1,56,000/-X 11% =Rs. 17,160/-

(c) Appellant is found to be around 44 years of age at the time of accident,. Therefore, applicable multiplier as per Sarla Verma Case is 14.

(d) Loss of future earnings = Rs. 17,160/- X 14= Rs.

2,40,240/-. Thus, a sum of Rs. 2,40,240/- is granted towards loss of future income."

28. As per the impugned award, whilst computing the quantum of compensation payable towards loss of future income, the learned Tribunal computed the functional disability of the appellant as 11% instead of 22% as per the disability certificate by placing reliance on the judgment of this Court in the case Laxmi Narain v. Trilochan Singh & Ors., FAO no. 289/99 dated 4th May, 2005 as per which the functional disability suffered Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 11 of 14 Signing Date:24.07.2024 18:54:45 in the lower left limb shall be half of the actual disability suffered by the claimant.

29. Accordingly, the learned Tribunal by way of multiplier method held that the appellant is entitled to Rs. 2,40,240/- towards loss of future income.

30. In the instant appeal, this Court has meticulously examined the Disability Certificate of the appellant dated 7th January, 2016, as per which the appellant has 22% permanent disability in his lower left limb and the same can never improve.

31. In the instant appeal, the appellant is a driver and for him to drive a car, it is very important that all both his limbs are functioning properly. Accordingly, this Court is of the view that the learned Tribunal has wrongly halved the functional disability of the appellant since the appellant is a driver and working of his left lower limb is quintessential for him to perform his job as driver.

32. It is further held that the learned Tribunal without assigning any reasoning and without any cogent proof to substantiate that the functional disability is half of the actual disability, wrongly held that appellant's functional disability is 11% i.e., half of actual disability. Therefore, the functional disability of the appellant shall be 22% equivalent to his actual disability.

33. It is further held that the learned Tribunal wrongly relied upon the judgment of this Court in the case of Laxmi Narain (Supra) since, the Court has to also take into consideration the this functional disability of the Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 12 of 14 Signing Date:24.07.2024 18:54:45 appellant, and it cannot just mechanically halve the actual disability of the appellant.

34. Accordingly, this Court modifies the loss of future income as follows:

a. Income per month: Rs. 10,000/-

b. Percentage of disability suffered by him = 22% c. Future Income Computation = 10,000 x 22/100 x10,000 =12,200 d. Annual Income=12,200 x 12 =1,46,400 e. Multiplier- 14 (since the appellant was 44 years during the time of the accident) Total loss suffered on account of Future Income= Future Income x Multiplier = 1,46,400 x 14 =Rs. 20,49,600/-

35. In view of the aforesaid discussion, it is held that the appellant is entitled to a compensation of Rs. 20,49,600/- alongwith interest @ 9 % per annum.

36. In view of the aforesaid discussion, the impugned award dated 18 th October, 2016 in Suit no. 556/11 passed by the PO- MACT-02(South East District), Saket stands modified in terms of amount awarded by the learned Tribunal towards loss of future incomes and it is from enhanced Rs. 2,40,240/- to Rs. 20,49,600/-

37. This Court directs the respondent no. 3 to pay the appellant the difference in the compensation as against the amount of Rs. 2,40,240/- as previously awarded by the learned Tribunal. The amount awarded by this Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 13 of 14 Signing Date:24.07.2024 18:54:45 Court shall be paid by respondent no. 3 to the appellant within a period of eight weeks from today after adjusting the amount already deposited.

38. Accordingly, the instant appeal is allowed to the aforesaid extent. There shall be no orders as to costs.

39. Pending application, if any, stands disposed of accordingly.

40. The order to be uploaded on the website forthwith.

CHANDRA DHARI SINGH, J JULY 22, 2024 Dy/db/av Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR MAC.APP. 1001/2017 Page 14 of 14 Signing Date:24.07.2024 18:54:45

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