New India Assurance Company v. Dinesh Kumar & Ors.

CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Vinod Chaudhari, Mr. Ajay Jain and Mr. Sanjay Mittal, Advocates, for the appellant in FAO Nos.3806, 5478 and 5611 of 2004 respectively. None for the respondents. ----

1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

2. 3. Whether the judgment should be reported in the digest ? ---- FAO No.3806 of 2004 - 2 - K.Kannan, J.

1. FAO Nos.5611 and 5478 of 2004 are at the instance of claimants seeking for enhancement of compensation. FAO No.3806 of 2004 is an appeal filed by the Insurance Company against the award in MACT No.104 of 2001 which is also subject in FAO No.5611 of 2004. The applicant in claim petition No.104 of 2001 would aver in his petition that he was a passenger in the jeep and the accident took place due to the negligence of the driver of the Tata Sumo car. The Tribunal found that both the vehicles were equally responsible for the accident and made the respondents 1 and 2, who were the driver and the Tata Sumo. I find from the memo of parties, described before the Tribunal, New India Assurance Company was not even described as a party. It is not very clear as to how the New India Assurance Company is preferring an appeal, but I take the appeal maintainable on the ground that alongside the claim petition No.104 of 2001, three petitions were arising from the claims in the same accident and the New India Assurance Company had been impleaded as party in all the other claim petitions namely in 30, 31 and 34 of 2001.

2. As regards the liability issue taken up by the Insurance Company in FAO No.3806 of 2004, I have no difficulty in finding that the Tribunal was in error in casting only the liability on the United India Insurance Company, having found elsewhere in the same judgment that drivers of both the vehicles were equally negligent and the accident was the result of composite negligence on account of both of them. It ought to have distributed the liability between United India Insurance Company which was the insurer for the Tata Sumo and the Oriental Insurance FAO No.3806 of 2004 - 3 - Company which was the insurer for the jeep. The apportionment of liability between the Insurance Company as having thus been found to be borne on 50:50 basis, the cases will have to be considered with reference to the enhancement of claims for compensation.

3. FAO No.5611 of 2004 is at the instance of a passenger in the jeep, who averred in the petition that he had suffered multiple injuries. Before the Tribunal, the contention of the claimant was that he had spent Rs.70,000/- for his treatment. His contention was that he was running a shop of general merchant and used to earn Rs.200/- to 250/- per day and that due to the injuries suffered by him, he could not open the shop for 2 ½ months. He had examined S.P.Sharma (PW2) as a doctor, who had treated him and the x-rays had been filed as Ex.P4 and P5, showing that he had a fracture on the right femur. A Medical Board comprising of three doctors, one of whom was Dr.Dinesh Podar (PW1) had been examined before the Tribunal which had assessed his disability at 15% on account of mal-united fracture. His evidence is that he had mild restricted movement of right hip and knee joint and that the disability qua the whole body was 14%.

4. From the medical bills produced before the Tribunal, the Tribunal found that he had spent Rs.34,190/-. Although he had claimed that he had spent Rs.70,000/- towards medical expenses, I would round off the medical expenses to be Rs.35,000/-. According to him, he had been under treatment for about 2 ½ months and he could not attend to his job. No award has been made for transportation and for attendant’s charges. I would provide for Rs.5,000/- for transportation charges and FAO No.3806 of 2004 - 4 - another Rs.2,500/- for attendant’s charges. The Tribunal has awarded for Rs.20,000/- for pain and suffering, which I will uphold and has provided another Rs.5,000/- towards special diet which also I shall retain. In the matter of assessment of loss of earning capacity for the disability, the Tribunal took his income to be Rs.24,000/-, adopted a multiplier of 17 and took 14% of that amount as determining the loss of earning. This is a complete misunderstanding of the application of principle of determining loss of earning power. It must be remembered that the percentage of disability is not the same as loss of earning power. The assessment of disability is usually a functional disability. The Tribunal must try to assess through doctor's evidence and the evidence of the claimant as to how the physical disability assessed by a doctor impairs his earning capacity. Definitely a certain approximation will have to be made but still it is an exercise that the Court shall undertake. A functional disability may, even apart from impairing the earning capacity, may result in loss of amenities and put a person to inconvenience which could be either permanent or temporary depending again on whether the disability was temporary or permanent. In this case, the disability of 14% for a whole body must be taken as a functional disability of 14%, the Court would be justified in awarding to a person compensation for functional disability for the inconvenience, loss of amenities, etc. A certain approach adopted by this Court as well as other Courts is to make a rough estimate from Rs.1,000/- to Rs.2,000/- for every percentage of disability. In this case, I would accord to the claimant a loss due to permanent disability as Rs.28,000/-. It is in evidence that the claimant FAO No.3806 of 2004 - 5 - was unable to work from about 2 ½ months. Having regard to the fact that the Tribunal has taken the salary to Rs.2,000/- per month, I would provide for Rs.5,000/- as loss of income during the period of treatment. The loss of earning capacity for a person, who has a difficulty of flexion of his limb due to mal-united fracture, I would take it to be 10% and adopting a multiplier of 17 for a person aged 21 years, I would find the compensation payable to be Rs.40,800/- (Rs.2,000/- (salary) x 12 (months) x 10/100 (% of earning capacity) x 17 (value of multiplier)). In all, the total amount of compensation that become payable would be Rs.1,41,300/-. The Tribunal has awarded already Rs.1,16,310/-. The award of the Tribunal is therefore modified to provide for an additional amount of Rs.24,990/- which is round off to Rs.25,000/-. The liability shall be shared between the United India Assurance Company and the Oriental Insurance Company.

5. As regards the claim in FAO No.5478 of 2004, the claimant is Ravinder Kumar Jain in MACT No.34 of 2001. He was a passenger travelling in Tata Sumo car. According to him, he was immediately given treatment as SMS Hospital, Jaipur where he was admitted for two days and thereafter, he was taken to Delhi and get him admitted in Goswami Medical Centre where he was operated upon. He would contend that he spent Rs.2,50,000/- for his treatment. Dr. S.P.Sharma (PW2) had been examined through whom the x-ray was filed. PW6 Dr. Devender Purohit, who stated that he had suffered fracture of ribs and right patella. He had been in SMS hospital at Goswami Medical Centre, New Delhi in two spells i.e. from 28.12.2000 to 03.01.2001 and later on 25.06.2001 and FAO No.3806 of 2004 - 6 - discharged on the same day. The treatment records were filed through PW4 as Ex.P7 to P15. PW1 Dr.Dinesh Podar had examined along with two other persons constituting a Board and assessed his disability to be permanent and assessed the disability to be 30% on account of ankylosis of right knee joint in extension with wasting of quadriceps muscles. The whole body disability was assessed at 27%. He had produced medical bills to the tune of Rs.52,621/- and, therefore, the Tribunal provided for the entire amount. Towards pain and suffering for the injuries suffered, the Tribunal had awarded Rs.20,000/- and Rs.5,000/- towards the rich diet. I would retain the amount as found by the Tribunal towards medical expenses and pain and suffering as well as for diet. As regards the assessment of loss of earning capacity, the Tribunal had again committed the same mistake of what I have pointed out in earlier case by treating 27% disability as constituting 27% loss of earning capacity. Ravinder Kumar was himself the owner of the tata sumo car and going by the fact that he was the owner, the Tribunal took his income to be Rs.5,000/- per month. For the nature of injuries suffered by him and the disability spoken to by the doctor, I have not been read through the evidence of the claimant himself as to how the disability came in the way of his earning power. I would provide for Rs.54,000/- as going towards his disability for loss of amenities of life and the inconvenience that he has put up with. As regards the loss of income, the Tribunal has awarded Rs.2,59,200/-. This should include Rs.54,000/- I have provided for towards disability. The loss due to loss of future earning by his disability would work out to Rs.2,05,200/- (i.e.Rs.2,59,200-Rs.54,000 FAO No.3806 of 2004 - 7 - =2,05,200/-). If he must take 20% as the loss of earning power for a person, who had difficulty in flexion of his leg and who has a higher percentage of disability, the amount of compensation shall be Rs.1,92,000/- (i.e. Rs.5,000 x 12 x 20% x16= Rs.1,92,000/-), which is in excess over the amount awarded by the Tribunal, in the manner that I have worked out. I do not think there is a case for enhancement of compensation. The award of the Tribunal shall stand modified however to provide for apportionment of liability between the Oriental Insurance Company and the New India Assurance Company. While the liability of Oriental Insurance Company with reference to 50% cannot be in any way doubt, the liability of the New India Insurance Company to bear 50% for the negligence attributed to his own driver will become possible only if the owner had the benefit of accident cover for the driver. Otherwise 50% of the amount shall stand abated in so far as the claim against the New India Insurance Company is concerned. However, no argument is advance by the insurance company on that basis and I have not the benefit of the policy details to ascertain the extent of liability of the insurer to cover the risk for the insured’s driver.

6. FAO No.5611 of 2004 is allowed however with the modification that the liability shall be borne between the Oriental Insurance Company and New India Assurance Company. The appeal filed by the New India Assurance Company in FAO No.3806 of 2004 shall stand partly allowed apportioning the liability between both Oriental Insurance Company and New India Assurance Company instead of casting the liability wholly on New India Assurance Company as the FAO No.3806 of 2004 - 8 - Tribunal had done. FAO No.5478 of 2004 shall stand dismissed in so far as it seeks for enhancement. Consistent with the finding that both the vehicles were responsible for the accident, the claimant's right of enforcement of the award shall obtain against the Oriental Insurance Company for 50% of the award and the other 50% shall come out of New India Assurance Company. The Oriental Insurance Company itself has not come on appeal in FAO No.5478 of 2004 against the award in MACT No.34 of 2001. I make however modification in the award by exercising the powers akin to the power of the appellant court under Order 41 Rule 33 CPC. Having regard to the fact that the liability cast on the Oriental Insurance Company has not been the subject of appeal, it shall satisfy the whole award in MACT No 34 of 2001, if not already done and recover 50% of the same against the insurer of Tata Sumo car namely, United India Insurance Company.

24.08.2010 sanjeev (K.KANNAN) JUDGE