Delhi High CourtUnited India Insurance Co. Ltd. vs Ashok Kumar & Ors. on 22 January, 2015Author:G.P.  MittalBench:G.P.Mittal$-3
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Decided on: 22nd January, 2015
+       MAC.APP. 587/2011

        UNITED INDIA INSURANCE CO. LTD.
                                                       ..... Appellant
                          Through:     Mr. Manish Kaushik, Adv.
                versus
        ASHOK KUMAR & ORS.                 ..... Respondents
                Through : Ms.Shanta Devi Raman, Adv. for R-1.
                          Mr.A.P.Aggarwal, Adv. for R-2.
        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                          JUDGMENTG. P. MITTAL, J. (ORAL)1.      The appellant United Insurance Company Limited impugns the
judgment dated 21.03.2011 passed by the Claims Tribunal awarding
compensation of ` 6,95,951/- to Respondent no.1 for having suffered
injuries in a motor vehicular accident which occurred on 16.01.2005.2.      Relying onRaj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC
343, the sole ground of challenge raised by the learned counsel for the
appellant is that Respondent no.1 was employed as a driver in Delhi
Transport Corporation (DTC). He suffered 62% disability in respect
of his right lower limb leading to permanent locomotor impairment.
Though, on account of the injuries suffered by him, Respondent no.1
was not able to drive a bus, yet he was posted on an alternative job andMAC APP 587/2011                                    Page 1 of 11thus, he did not suffer any pecuniary loss because of the permanent
disability.3.      It is therefore, urged that the Claims Tribunal's award of `
4,28,968/- towards loss of earning capacity is illegal and without
application of mind.4.      On the other hand, Ms.Shanta Devi Raman, learned counsel for
Respondent no.1 has referred to the testimony of Respondent no.1,
PW-3 Dr. Shobha Arora and PW-4 Bihari Lal. She argues that the
injuries of Respondent no.1 were very severe. He suffered fracture of
right leg bones. He had to undergo five surgeries. He remained in and
out of the Hospital for over one year for treatment and hence, could
not go to work.5.      The following contentions are thus, raised by the learned
counsel for Respondent no.1:-(i)        Respondent no.1 being a driver suffered 100% disability
                   because of locomotor impairment in his right lower limb;(ii)       He remained on leave for fifteen months but he was
                   granted compensation for loss of income only for three
                   months;(iii)      The compensation awarded towards loss of amenities,
                   loss of enjoyment and disfigurement on the lower side;(iv)       The compensation awarded towards attendant chargesMAC APP 587/2011                                         Page 2 of 11was also on the lower side;(v)       Because of leave without pay, Respondent no.1 lost one
                   increment for the rest of the period of his service
                   including pensionary benefits.The learned counsel for Respondent no.1 therefore, urges that the
compensation awarded was not adequate and the compensation is
liable to be enhanced.PERMANENT DISABILITY:6.InRaj Kumar versus Ajay Kumar(supra), the Supreme Court
laid down that : to compensate the injured towards permanent
disability, functional disability has to be measured.7.      It is pointed out that in certain cases, permanent disability may
not impact the earning capacity of the victim and in such cases, the
victim may not be entitled to any compensation towards loss of
earning capacity on account of permanent disability, yet in other cases,
even on account of less permanent disability, an injured may be
completely incapacitated to carry out his vocation and hence, the
functional disability may be much more than the permanent disability
suffered by the injured.8.      The Hon'ble Supreme Court gave an instance that if
the left hand of the claimant who is the driver by profession, is
amputated, the actual loss of earning capacity may virtually be 100%.MAC APP 587/2011                                        Page 3 of 119.      In the instant case, Respondent no.1 was incapacitated to work
as a driver but at the same time, he was working in the DTC on some
other post and, therefore, the permanent disability did not impact his
earning capacity except that he lost an increment because of him
having taken leave without pay for about an year. At the same time, it
has to be noted that the age of retirement in DTC is 60 years and the
permanent disability will incapacitate Respondent no.1 to work as a
driver.10.     It may also be difficult for him to perform an alternative
employment with full efficiency. Respondent no.1 was taking a salary
of `9661/- at the time of accident.11.     Hence, I will take the increment of Respondent no.1 on the day
of accident as `300/- and thereby award a compensation of `46,800/-
(`300X12) X 13(multiplier) towards loss of increment.12.     Because of permanent locomotor impairment and 62%
disability, I am inclined to hold that his loss of earning capacity after
the age of 60 years would be about 50% and thereby, I award a
compensation of ` 5,21,694/- (9661X12X9X50%) towards loss of
earning capacity.13.     I have the record of trial court before me. PW-4 Bihari Lal
deposed that Respondent no.1 remained on medical leave from
16.01.2005 to 15.04.2005, 16.04.20115 to 15.05.2005, 16.05.2005 to
13.10.2005 and then for three months up to 5.12.2005 and was on
complete leave for the year 2006. He further stated that RespondentMAC APP 587/2011                                     Page 4 of 11no.1 was absent without leave from 18.04.2006 to 09.04.2006,
10.07.2006 to 26.01.2007 and he joined his duties on 27.01.2007.14.      Respondent no.1 was hence, away from work either on leave
with pay, or on leave without pay for a period of about 15 months. He
is hence, entitled to compensation of `1,44,915/- (`15X9661) for the
loss of leave or for loss of salary for the period he had to take leave
without pay.15.      The Claims Tribunal awarded a compensation of `18,000/-
towards attendant charges. PW-3 Dr. Shobha Arora stated that
Respondent no.1 needed an attendant from the date of accident till
18.10.2005. Thus, Respondent no.1 would be entitled to attendant
charges for a period of nine months instead of six months. The
compensation is hence, raised from `18,000/- to `27,000/- under this
head.16.      The Claims Tribunal awarded a compensation of `1 lakh
towards loss of amenities.    The amount of compensation towards
amenities should be able to bring the amenities and restoration of
health to Respondent no.1. In the circumstances, the sum awarded
seems to be just and reasonable. The compensation awarded is hence,
re-computed as under:-Sl.         Compensation under       Awarded by          Awarded by
                 various heads          the Claims           this Court
  No.                                   Tribunal (in
                                            Rs.)                   (in Rs.)MAC APP 587/2011                                    Page 5 of 111.      Pain & sufferings                  `1,00,000/-              `1,00,000/-2.      Loss of amenities, loss of         `1,00,000/-              `1,00,000/-enjoyment              and
           compensation            for
           disfiguration

   3.      Loss of leave for three              `28,983/-              `1,44,915/-
           months.

   4.      Expenses towards attendant           `18,000/-               `27,000/-
           (for six months @ ` 3,000/-
           per month)

 5.        Special diet and conveyance          `20,000/-               `20,000/-

 6.        Loss in earning capacity due     `4,28,968.8/-              `5,21,694/-
           to disability (30%X
           9166X12X13)

 7.        Loss of increment                     --                     `46,800/-

           TOTAL                            `6,95,951.8/-              `9,60,409/-
           (Rounded off)                      `6,96,000/-17.     The compensation is hence, enhanced by ` 2,64,409/-.18.     It is averred by the learned counsel for the appellant that there is
no cross- appeal or cross-objections by Respondent no.1. However,
the question whether enhancement of the amount without filing
cross-appeal or cross-objections has been dealt with by this Court in
MAC APP. 629/2010 titledOriental Insurance Company Limited
versus Mamta Kumari & Ors., decided on 06.09.2012 wherein thisMAC APP 587/2011                                        Page 6 of 11Court in paras 13 to 19 has held as under:-"13. The theory of not awarding compensation more than
                   the amount claimed got a sea change with the judgment
                   of the Supreme Court inNagappa v. Gurudayal Singh &
                   Ors., (2003) 2 SCC 274, wherein the Supreme Court held
                   that there is no restriction that compensation could be
                   awarded only up to the amount claimed by the Claimant.
                   In an appropriate case where from the evidence brought
                   on record if the Tribunal/Court considers that claimant is
                   entitled to get more compensation than claimed, the
                   Tribunal may pass such an award. The Supreme Court
                   said that the only embargo was; that it should be „just‟
                   compensation, that is to say, it should be neither
                   arbitrary, fanciful nor unjustifiable.   Para 21 of the
                   report is extracted hereunder:"21. In our view, under theM.V. Act, there is no
                   restriction that Tribunal/Court cannot award
                   compensation amount exceeding the claimed amount.
                   The function of the Tribunal/Court is to award „just‟
                   compensation which is reasonable on the basis of
                   evidence produced on record. Further, in such cases
                   there is no question of claim becoming time barred or
                   it cannot be contended that by enhancing the claim
                   there would be change of cause of action. It is also to
                   be stated that as provided under Sub-section(4) toSection 166, even report submitted to the Claims
                   Tribunal under Sub-section (6) ofSection 158can be
                   treated as an application for compensation under theM.V. Act, If required, in appropriate cases, Court
                   may permit amendment to the claim Petition."14.InNational Insurance Company Ltd. v. Rani, 2006
                   ACJ 1224, a Division Bench of Madras High Court held
                   that without filing any Appeal or Cross-Objections, High
                   Court is competent to enhance the compensation inMAC APP 587/2011                                          Page 7 of 11favour of a victim of a motor vehicle accident by invoking
                   provisions ofOrder XLI Rule 33 Code of Civil
                   Procedure(Code). Para 16 of the report is extracted
                   hereunder:"16.     At the risk of repetition it may be stated
                   that the contention put forward is that the Court is
                   duty bound to fix the just compensation. The fact that
                   the Claimants have not filed any cross objection
                   would not stand in the way and further the Court can
                   by invoking the powers conferred underOrder XLI
                   Rule 33 of CPC, is satisfied, can enhance the
                   compensation and call upon the Claimants to pay
                   necessary court fee. In that context, the learned
                   counsel also submitted, when the Supreme Court has
                   ruled that even at the appellate stage original
                   petition can be amended claiming enhanced
                   compensation, the Court enhancing compensation in
                   the instant case, if satisfied, invoking powers under
                   Order XLI, Rule 33 will certainly be in order."15.InOriental Fire and General Insurance Co. Ltd. v.
                   Amarsingh Pratapsingh Sikliker, 1(1993) ACC 627, a
                   Division Bench of Gujarat High Court held that the
                   Appellate Court was empowered to grant adequate
                   compensation so as to do substantial justice between the
                   parties even in absence of Cross-Objections or Appeal.
                   Para 17 of the report is extracted hereunder:"17. It becomes very clear from the aforesaid
                   provisions that the appellate Court is empowered to
                   grant adequate relief so as to do substantial justice
                   between the parties even in absence of cross-
                   objections or appeal...."16. In Sone Ram v. Jayaprakash, AIR 1986 MP 21, the
                   High Court of Madhya Pradesh exercising power under
                   Order XLI Rule 33 of the Code enhanced the
                   compensation granted by the Claims Tribunal evenMAC APP 587/2011                                          Page 8 of 11though no Appeal was preferred by the Claimant. In the
                   case of Sewaram alias Sewan v. Nanhe Khan alias Asgar
                   Beg, 1987 ACJ 354(MP), the High Court of Madhya
                   Pradesh awarded 10% interest on the compensation
                   amount in the absence of any Appeal or Cross-Objections
                   by the Claimants.17. A learned Single Judge of this Court in National
                   Insurance     Co.    Ltd.    v.    Komal     &     Ors.,
                   MANU/DE/2870/2012, (MAC. APP.No.595/2007
                   decided on: 27.04.2012) referred to the judgments of the
                   Supreme Court inPannalal v. State of Bombay, AIR 1963
                   SC 1516; Rameshwar Prasad v. M/s Shyam Beharilal
                   Jagannath, (1964) 3 SCR 549;Nirmal Bala Ghose v.
                   Balai Chand Ghose, AIR 1965 SC 1874;Giasi Ram v.
                   Ramjilal, AIR 1969 SC 1144;Harihar Prasad Singh v.
                   Balmiki Prasad Singh, (1975) 2 SCR 932;Mahant
                   Dhangir v. Madan Mohan, (1988) 1 SCR 679;State of
                   Punjab v. Bakshish Singh, (1999) 8 SCC 222 and
                   judgments of various High Courts to opine that the High
                   Court is empowered to enhance the compensation
                   without filing any Appeal or Cross-Objections by a
                   Claimant.18.InIbrahim v. Raju, AIR 2012 SC 534, a
                   compensation of `3,00,000/- was claimed by the
                   Appellant which resulted in an award of `60,000/- by the
                   Claims Tribunal. The compensation was enhanced to
                   `1,89,440/- by the High Court, which was enhanced to
                   `6,00,000/- by the Supreme Court.       Para 21 of the
                   report is extracted hereunder:"21. We are conscious of the fact that in the petition
                   filed by him, the Appellant had claimed compensation
                   of Rs. 3 lacs only with interest and cost. It will be
                   reasonable to presume that due to financial
                   incapacity the Appellant and his family could not
                   avail the services of a competent lawyer and make a
                   claim for adequate compensation. However, as theMAC APP 587/2011                                         Page 9 of 11Tribunal and the High Court and for that reason
                   this Court are duty bound to award just
                   compensation, (emphasis supplied) we deem it proper
                   to enhance the compensation from Rs. 1,89,440/- to
                   Rs. 6 lacs. This approach is in tune with the judgment
                   inNagappa v. Gurudayal Singh, (2003) 2 SCC 274.In
                   that case, the Court considered a similar issue,
                   referred to the judgments of the Bombay High Court
                   in Municipal Corporation of Greater Bombay v.
                   Kisan Gangaram Hire, 1987 ACJ 311(Bombay),
                   Orissa High Court in Mulla Mod.Abdul Wahid v.
                   Abdul Rahim,1994 ACJ348 (Orissa) and Punjab and
                   Haryana High Court inDevki Nandan Bangur v.
                   State of Haryana, 1995 ACJ 1288 (P & H)."19.InNew India Assurance Co. Ltd. v. Gopali & Ors.,
                   Civil Appeal No.5179of 2012 (arising out of SLP (C)
                   No.11345 of 2007) decided by the Supreme Court on
                   05.07.2012, the New India Assurance Co. Ltd. challenged
                   an award of compensation of `6,45,300/-.            The
                   compensation was, however, enhanced to `10,63,040/- by
                   the Supreme Court."19.     Thus, there is no impediment in enhancing the compensation
awarded to Respondent no.1.20.     The enhanced compensation of ` 2,64,409/- shall carry interest
at the rate of 7.5% per annum from the date of filing of the petition till
the date of deposit with the Claims Tribunal and the same shall be
deposited within a period of six weeks.21.     If the compensation is not deposited within six weeks, it shall
carry interest at the rate of 12% per annum from the date of this
judgment.MAC APP 587/2011                                         Page 10 of 1122.     50% of the enhanced compensation shall be held in Fixed
Deposit for a period of six years on which Respondent no.1 shall be
entitled to quarterly interest; rest of the compensation shall be released
on deposit.        The compensation already awarded by the Claims
Tribunal shall be released/held in a Fixed Deposit in terms of the order
passed by the Claims Tribunal.23.     The appeal stands disposed of.24.     Statutory amount of ` 25,000/-, if any, shall be refunded to the
appellant      Insurance   Company   on    deposit   of     the       enhanced
compensation.(G.P. MITTAL)
                                                             JUDGE
JANUARY 22, 2015
'sn'MAC APP 587/2011                                      Page 11 of 11