National Insurance Co Ltd v. Shri Tinku @ Anil Kumar & Ors.

1. The appeal is for reduction of compensation of `7,53,133/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of Respondent no.1 for having suffered grevious injuries in his right leg resulting in permanent disability to the extent of 30% on account of stiffness and deformity of the right lower limb in a motor vehicular accident which occurred on 28.11.2010.

2. Immediately after the accident, Respondent no.1 was removed to Meerut Hospital. Later on, he was shifted to Sushruta Trauma Centre, 2015:DHC:3390 Delhi where he remained admitted from 29.11.2010 to 24.12.2010. The Claims Tribunal awarded the compensation of `7,53,133/- under various heads, which can be extracted hereunder from para 23 of the impugned judgment:-

┌─────────────────────────────────────────────────────────────────────────────────┐
│            impugned judgment:-                                                  │
│

┌─────────────────────────────────────────────────────────────────────────────────────┐
│    Sl.       Compensation under various           Awarded by          Awarded by    │
│   No.                 Heads                       the Claims           this Court   │
│                                                    Tribunal               (in `)    │
│                                                       (in `)                        │
└─────────────────────────────────────────────────────────────────────────────────────┘

3. It is pertinent to mention here that there is a clerical mistake in the calculation as instead of `7,53,133/- the total amount of compensation awarded by the Claims Tribunal is `8,53,133/-.

4. On appreciation of evidence, the Claims Tribunal found that the accident was caused on account of rash and negligent driving of a car bearing registration no.UP-17D-2122 which has struck against the two wheeler on which Respondent no.1 was riding.

5. It was the case of Respondent no.1 that he was working as a Barber and was earning `10,000/- per month. Respondent no.1 as PW-1 deposed that even on the date of recording his statement in May, 2012 he was unable to carry out his work on account of serious deformity in his leg.

6. The Claims Tribunal in the absence of any documentary evidence with regard to Respondent no.1’s income took the minimum wages of a skilled worker i.e. `5278/- p.m., made addition of 50% towards future prospects and awarded a sum of `5,12,021/- on assuming 30% functional disability. The Claims Tribunal further awarded the sums towards pecuniary and non-pecuniary damages as stated earlier.

7. It is urged by learned counsel for the Appellant that Respondent no.1 did not suffer loss of earning capacity to the extent of 30%. The compensation awarded towards loss of 30% earning capacity was unjustified. It is also urged that Respondent no.1 was a self employed person and normally in the said case addition towards future prospects is not given. Reliance is placed on Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 as approved in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65. It is also contended that the compensation awarded towards nonpecuniary damages is on the higher side.

8. I have perused the Trial Court record.

9. The first Disability Certificate dated 10.12.2011 was issued by Dr. Baba Saheb Ambedkar Hospital. Respondent no.1 was still in the internal fixator at the time of his medical examination by the Board. The Board opined 40% disability in respect of right lower limb. Respondent no.1 was also examined by AIIMS with regard to the permanent disability and the Medical Board of AIIMS opined that the disability was to the extent of 30%.

10. It may be noted that Respondent no.1 was a Barber by profession. His profession would entail continuous standing for longer hours. On account of the injuries suffered by Respondent no.1 it will be very difficult for him to stand and the same will substantially affect his earning capacity as a Barber.

11. It is true that in the absence of any specific averments with regard to good future prospects, addition of 50% was not permissible (See: Three Judge Bench decision of the Supreme Court in Reshma Kumari and Ors. v. Madan Mohan and Anr., (2013) 9 SCC 65 and a judgment of this Court in HDFC ERGO General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors., MAC. APP. 189/2014 decided on 12.01.2015). But, at the same time, once it was established that Respondent no.1 was working as a Barber, the Claims Tribunal ought to have made assessment of his income as a Barber. On daily earning of `300/-, I tend to assess the monthly income of Respondent no.1 as `7500/- for 25 working days.

12. Respondent no.1 suffered 30% permanent disability on account of stiffness and deformity of the right lower limb. As stated earlier the disability will substantially affect Respondent no.1’s earning capacity. Thus, the assessment made by the Claims Tribunal that the disability evaluated loss of earning capacity to the extent of 30% cannot be faulted.