Full Text
HIGH COURT OF DELHI
Date of Decision: 5th December, 2024
NANDAN MUKHERJEE .....Appellant
Through: Mr. Rakesh Kumar and Mr. Tarun Pilania, Advocate.
Through: Mohd. Asif, proxy Counsel for R- 1/R-2.
Mr. Rajeev M. Roy, Advocate for R-3.
JUDGMENT
1. An Appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the Injured/Appellant seeking enhancement of compensation granted in the sum of Rs.18,75,195/- along with interest @ 9% per annum by the Impugned Award dated 05.07.2012 on account of injuries suffered by him in the road accident, on 05.07.2011.
2. The enhancement of compensation is sought on the following grounds: -
(i) The Income of the injured has been incorrectly calculated and is not in consonance with the Income Tax Returns filed on behalf of the injured;
(ii) The Loss of Earning has been granted only for 6
(iii) The injured was assessed with 75% Permanent
Disability in respect of right leg, but has been taken as functional disability of 35%, without considering the nature of the injuries and the consequential limited mobility impacting his capacity to earn as a visiting faculty;
(iv) The future prospects have not been granted in light of the judgment of the National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680.
(v) The multiplier has been erroneously applied as the applicable was 16 and not 15 since the Age of the injured was 39 years 10 months at the time of accident.
(vi) The entire probable expenditure for the artificial limb has been granted for next 25 years without considering the Quotation Letter–Ex. PW1/12;
(vii) The amount granted for special diet and conveyance charges is on the lesser side;
(viii) The medical expenses in the sum of Rs.
(ix) The other amounts under the Non-Pecuniary
(x) that the Appellant is entitled to Attendant
Charges for life as well as Loss of Consortium as consequent to the amputation of leg of the injured, the wife has divorced him.
3. Learned counsel on behalf of the Respondent No. 3/ Insurance Company submits that the injured was only one month short of 40 years and no there is no ground for enhancement of multiplier. Even the income of the injured has been calculated correctly on the basis of Income Tax Returns. Further, no Loss of Consortium or Attendant Charges is made out merely because the wife of the injured has divorced him. Adequate compensation has been awarded for Prosthetics on account of amputation.
4. It is thus, submitted that the Impugned Award is well reasoned and the Appeal is liable to be dismissed.
5. Submissions heard and record perused.
6. Briefly stated, on 05.07.2011 the injured Appellant was hit by vehicle bearing No. DL-1LM 7591/Offending Vehicle, which was rashly and negligently driven by the Respondent No.1/ Mohd. Rafiq.
7. FIR No.62/2011 u/s 279/3387 IPC 1806 was registered with P.S. Bara Hindu Rao. Compensation for Medical Expenses: -
8. The Appellant has challenged the amount granted by the Ld. Tribunal towards Medical Expenses. However, it is admitted that the total Amount reflected in the Medical Bills/ Ex. PW-1/25 to Ex.PW-1/86, placed on record by the PW1/Injured, is Rs. 39,079/-.
9. The contention raised by the Appellant is that during the treatment phase of such a grave injury, the concern was more about recovery rather than to collect Bills. He is entitled to higher compensation for medical reimbursement.
10. This contention has no merit as the only evidence which would be reflective of the amount spent towards treatment, would be the Medical Bills. In absence of any other evidence to prove additional expenses incurred during the period of treatment, the Ld. Tribunal has rightly granted Rs. 39,000/- towards compensation for medical expenses considering the Medical Bills placed on record by the Appellant. Loss of Earnings/Income:
(i) Assessment of Income: -
11. PW1- Sh. Nandan Mukherjee/Injured had deposed that he was self- employed as professional teacher who was taking private tuitions of the engineering students and at the time of the accident was earning about Rs. 1,10,00/- p.m. However, in his cross-examination he has admitted that there is no other documentary proof of the same.
12. PW-2/Sh. A. Kumar, proprietor of Excel Tutorial and PW-3/Sh. Sunil Kumar, proprietor of Kshitij Education, have deposed that the injured was working with them and each was paying about Rs. 35,000/to him. However, neither produced any other documentary poof thereof.
13. The Ld. Tribunal referred to the ITRs Ex.PW-1/5 to Ex.PW-1/21, filed by the Injured for AY 2008-09 in the sum of Rs. 1,76,452/-; for the year 2009-10 in the sum of Rs. 3,15,604/- and for the year 2010-11 in the sum of Rs. 2,06,190/- and assessed the annual Income of the injured as Rs. 2,06,190/-, on the basis of the latest ITR filed for the year i.e. 2010-11.
14. It has been argued by the Appellant that the ITR for the AY 2009- 2010 should be considered as the same shows a higher income of the Appellant or average of three ITRs should have been taken, to assess the income of the deceased.
15. Recently, in the case of Jayshree v. Muahaningappa and Ors. 2024:KHC-K:1887-DB, the Karnataka High Court took into account that the income of the injured is not stable and held that Income Tax Returns should be considered to ascertain the income of the deceased/injured. If there are variations found in the Income Tax Returns for different assessment years, it would be appropriate to calculate the average income of three assessment years to arrive at the annual stable income of the claimant seeking compensation under the Motor Vehicles Act, 1988. It was thus, opined that: -
the aggregate income declared in the income tax returns is to be considered.”
16. The ITRs of the injured, who was a Tuition teacher, do not reflect a constant increase in income. Thus, in the peculiar facts and circumstances of the case, it would be unjust to consider the latest ITR which reflects a lower income of the injured and the correct approach would be to take the average of the three ITRs placed on record to assess the income of the injured.
17. Thus, the Income of the Appellant is recalculated as under: - (Rs. 1,76,452/- + Rs. 3,15,604/- + Rs. 2,06,190/-) /3 = Rs. 2,32,750/p.a.
(ii) Period of Medical Treatment: -
18. As per the record, after the said accident, the injured/Appellant was admitted to Sushruta Trauma Centre on 06.07.2011 as he had sustained severe injuries resulting in fracture of left arm ulna bone, crushing of right leg and his bone, muscles and tendon was exposed and his knee was disarticulated. His limb was amputated on 19.07.2011.
19. He was again admitted to St. Stephen Hospital on 02.08.2011 and Plate fixation of the bone was carried out.
20. Since no other material was placed on record to show the duration of treatment, the Learned Tribunal has rightly observed that the claimant is entitled to the Loss of Earning for a period of 6 months, keeping in mind the time for healing and rehabilitation and the same does not warrant any interference.
21. Thus, the Total Loss of Earnings is calculated as under: - (Rs. 2,32,750/- p.a. / 12) X 6 months = Rs. 1,16,375/- Loss of Future Earnings due to Disability: -
(i) Functional Disability: -
22. As per the Disability Certificate-PW-5/1, the Injured/ Appellant has suffered Permanent Disability to the extent of 75% of right lower limb due to amputation of right leg through knee and fracture of ulna bone left.
23. Considering that the Appellant was engaged in teaching work and was taking tuitions, the amputation would only partly affect the working capacity of the injured. Thus, the Learned Tribunal has rightly assessed the functional disability as 35% and the same warrants no interference.
(ii) Multiplier and Age: -
24. The Learned Tribunal has assessed the Age of the injured/Appellant as 40 years on the basis of his date of Birth mentioned in his PAN Card i.e. 14.08.1971 and thus, applied the Multiplier of 15.
25. However, since he was about 39 years and 11 months on the date of the accident i.e. 15.07.2011, the correct multiplier of 16 would be applicable in light of the judgment of Sarla Verma v. DTC, (2009) 6 SCC
121.
(iii) Future Prospects: -
26. It has also been challenged that the Learned Tribunal has erred in calculating the Loss of future earning capacity without adding any amount for future prospects.
27. In light of the judgment of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, the injured would be entitled to an addition of 40% as he was below the age of 40 years.
28. Thus, the Total Loss of Future Earning due to Disability is recalculated as under: - Rs. 2,32,750/- p.a. X 140/100 X 35/100 X 16 = Rs. 18,24,760/- Future Treatment Expenses: -
29. The Appellant has challenged the same on the ground that the above amount is granted without considering the Quotation Letter Ex. PW1/12 which reflects the actual future expense for the prosthetics, specifically when the Quotation Letter was not challenged by the Insurance Company.
30. The Learned Tribunal did not accept the Quotation Letter dated 13.02.2012- Ex. PW1/12, wherein the expenditure for the prosthetic leg for a period of 25 years is reflected as 11,52,000/-, by observing that no witness has been examined in this respect and no specific evidence was produced to substantiate the same. However, keeping in mind that the injured would require an artificial limb for the remaining period of his life, Rs.3,32,000/- was granted to the injured for 5 replacements of the artificial limb.
31. To substantiate the expenses he has incurred, the Appellant has placed on record Additional Evidence i.e. the payment Receipt Slip dated 19.08.2014 which amounts to Rs.10,000/- for the change of knee accessories, Invoice for above knee prostheses which amounts of Rs.1,75,000/- and the Invoice dated 30.06.2014, for Screw Valve for Resin Casting Socket which amounts to Rs.8,213/-.
32. In the case of Mhd. Sabeer @ Shabir Hussain v. Regional Manager, U.P. SRTC and Ors., Civil Appeal No. 9070-9071 of 2022 decided on 09.12.2022, in similar facts wherein the injured suffered 70% permanent disability in his right lower limb and Rs. 5,20,000/- was granted as compensation towards repair, purchase and maintenance of artificial Limb. The Hon’ble Apex Court observed that the same was inadequate and granted a total of Rs. 12,80,000/- i.e. Rs. 7,80,000/towards compensation of artificial limb and Rs. 5,00,000/- towards maintenance of the same. It was opined that: -
lifetime and is able to maintain the same at least till he has reached 70 years of age. For the Prosthetic limbs alone, the Appellant is to be awarded compensation of Rs. 7,80,000 and for maintenance of the same he is to be awarded an additional Rs. 5,00,000/-.”
33. In view of the above, since the injured was also about 39 years of age at the time of accident and assuming he would have lived up to 70 years, it would be appropriate to award amount for 6 replacements every five years i.e. Rs. 1,00,000/- approx. for 1 Artificial Limb X 6 = Rs. 6,00,000/- and Rs. 5,00,000/- for maintenance of the same.
34. Thus, the total amount towards Future Medical Expenses including Cost of Prosthetic Leg, maintenance and repair charges is modified to Rs. 11,00,000/-. Special Diet and Conveyance Charges: -
35. In view of the nature of injury and period of treatment of about 6 months, the sum of Rs. 18,000/- granted for compensation towards Special Diet and Conveyance charges, the amount is enhanced to Rs. 30,000/-, considering the nature of injury suffered. Attendant Charges: -
36. The appellant has also sought compensation towards attendant charges. He has also pleaded that due to his disability his wife has divorced him and therefore, since his spouse is not available to take care of him, he has to avail the services of an attendant for the rest of his life.
37. Though no evidence has been placed on record to prove the same, however, it is evident that due to the amputation he would require some assistance due to reduced mobility and thus, a sum of Rs. 1,00,000/- is granted towards attendant charges. Non- Pecuniary Heads: -
38. The Learned Tribunal has granted a total amount of Rs. 3,00,000/i.e. Rs. 1,00,000/- each towards Pain and suffering, Loss of amenities of life & Loss of expectation of Life.
39. However, considering that the right leg of the injured was amputated, in light of Mhd. Sabeer @ Shabir Hussain (Supra), the same is re-calculated as under: a) Pain and Suffering = Rs. 2,00,000 b) Loss of Amenities of life = Rs. 2,00,000 c) Loss of Expectation of Life = Rs. 1,00,000/- (no change)
40. He is also held entitled to a sum of Rs. 1,00,000/- towards disfiguration.
41. It has also been argued that the injured would be entitled to compensation under the head of loss of consortium as his wife has divorced him consequent to the injury sustained. However, this argument is not tenable as the Loss of Consortium is granted in death cases to spouses/dependants/heirs of deceased victims in motor vehicle accidents.
42. Moreover, the Divorce Decree dated 29.11.2013 records that the parties had filed the petition by mutual consent as they started to live separately from 28.08.2011 i.e. about 1 month after the accident. It may be an unfortunate case where the parties may have separated but there can be no compensation granted on account of fall-out between the husband and the wife. No compensation is granted on account of Divorce. Relief: -
43. Thus, the total amount of compensation is re-calculated as under:
1. Total Loss of Income Rs. 1,03,195/- Rs. 1,16,375/-
2. Medical Expenses Rs. 39,100/- (same) Rs. 39,100/- (same)
3. Future Medical Expenses (Cost of Artificial Limb and Maintenance) Rs. 3,32,500/- Rs. 11,00,000/-
4. Loss of Future Earning Capacity Rs. 10,82,500/- Rs. 18,24,760/-
5. Special Diet and Conveyance Charges Rs. 18,000/- Rs. 30,000/-
6. Pain and Suffering Rs. 1,00,000/- Rs. 2,00,000/-
7. Loss of Amenities Rs. 1,00,000/- Rs. 2,00,000/-
8. Loss of Enjoyment of life Rs. 1,00,000/- Rs. 1,00,000/- (same)
9. Disfigurement Nil Rs. 1,00,000/-
10. Loss of Marriage Prospects Nil Nil
11. Attendant Charges Nil Rs. 1,00,000/-
12. Interest 9% 9% (same)
44. Thus, the total compensation granted to the Claimant is enhanced to Rs. 38,10,500/- along with interest @9% per annum from the date of the Claim till the disbursal of the amount, in terms of the Impugned Award dated 05.07.2012 of the Tribunal.
45. The compensation amount be deposited by the Insurance Company within four weeks.
46. The Appeal stands disposed of along with the pending Application(s), if any.
JUDGE DECEMBER 05, 2024