Ankur Kapoor Thr. Gpa vs Oriental Insurance Company Ltd

2. The appellant has sought enhancement of

compensation by filing this appeal, questioning the judgment

dated 31.10.2015 passed by the High Court of Punjab and

Haryana at Chandigarh in FAO No. 3218 of 2003 (O&M). 2

3. Facts leading to this appeal are as under:

In the accident that occurred at about 10.30 p.m. on

21.3.2000 at Jamnagar, the appellant sustained grievous injury

to his right arm which resulted in permanent disability to the

extent of 50% to his right arm. Since the appellant was

immediately admitted to the hospital at Jamnagar his life was

saved; the appellant remained as in-patient in the hospital

from 21.03.2000 to 31.05.2000 and had undergone several

surgeries. It is the case of the appellant that even after

discharge from the hospital at Jamnagar, he was taking

treatment at Karnal as out-patient. At the time of accident,

the appellant was “Dec Cadet trainee” of Merchant Navy in the

Binnyship Management Company Ltd. and as a trainee, he was

getting fifty US dollars per month as salary, apart from free

boarding and lodging. It was the claim of the appellant that he

would have become “third Officer” after 18 months and the

said post was attached with the salary of 1500 US dollars per

month. According to the appellant, he would have then

become “Chief Officer” within three years and then “Captain” 3

of the ship after about eight years of the service, but as a result

of accident and as a result of permanent disability to the right

arm of the appellant, he has not only lost his job in Binnyship

Management Company Ltd. but he has become unfit for the

Merchant Navy. He alleges that his future career is ruined,

apart from sustaining heavy financial loss.

4. The Motor Accident Claims Tribunal, Karnal awarded

compensation of Rs.6,60,000/- (Rupees Six Lacs Sixty

Thousand only) along with 9% interest per annum from the

date of filing the claim petition to the appellant.

5. Dissatisfied with the quantum of compensation, the

appellant approached the High Court of Punjab and Haryana at

Chandigarh seeking enhancement of compensation. The High

Court has enhanced the compensation by Rs.2,20,000/-

(Rupees Two Lacs Twenty Thousand only) along with interest @

6% per annum, which means the appellant has been awarded a

total compensation of Rs.8,80,000/- along with interest. As

mentioned supra, this appeal is filed praying for further

enhancement of compensation.

4

6. The Tribunal as well as the High Court have not

quantified the compensation under separate heads, which in

our considered opinion has resulted in grant of lesser

compensation.

7. It is by now well settled by this Court in a catena of

decisions including the case of Raj Kumar vs. Ajay Kumar

reported in (2011) 1 SCC 343, in the case of permanent

disability, the compensation is usually awarded under the

following heads:

A. Pecuniary damages (Special Damages):

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure;

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses.

B. Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries;

5 (v) Loss of amenities (and/or loss of prospects of marriage);

(vi) Loss of expectation of life (shortening of normal longevity)

8. The record reveals that the Tribunal has made a note

while recording the deposition of the claimant about the

seriousness of the injuries sustained by the claimant. The

observation of the Tribunal reads thus:

“At this stage I have seen the right arm i.e. right upper limb which is almost completely in a damaged condition and skin is not visible properly from elbow onward till shoulder and there seems to be some muscle loss.”

The record also reveals that the claimant was

unconscious for a couple of days in the hospital and he was

operated by the doctor at Jamnagar hospital. According to the

appellant, he has spent an amount of Rs.3,00,000/- (Rupees

Three Lacs only) at Jamnagar hospital. Thereafter, he has

taken the assistance of Dr. O.P.Miglani at Karnal for getting the

dressing done every day. The disability certificate is Ex. P1

and the treatment certificate issued by the hospital is Ex. P9.

Due to the injuries sustained, the appellant has lost strength 6

and flexibility in his right arm and he cannot lift the weight.

The appellant cannot raise the arm beyond the level of 90

degree and he cannot drive the vehicle as his arm is not as

strong as it was before the accident. The appellant had

completed six and half months training prior to the incident.

When the ship had halted at Jamnagar for ten days, he took

casual leave for seven days to go to Karnal for applying fresh

passport, during which time the accident occurred. After

completion of his 10+2, the appellant had passed Diploma in

Applied Research International, New Delhi which is a condition

precedent for joining Merchant Navy. The appellant had also

passed Diploma in Personal Safety and Social Responsibilities,

Oil Tanker Familiarization, Elementary First Aid, Personal

Survival Techniques, Fire Prevention and Fire Fighting(all are

related to sea courses) for Dec Cadet and thereafter he joined

Binniship Management Company as Dec Cadet. The record

further reveals that the appellant has to undergo one more

surgery i.e. plastic surgery at Mumbai inasmuch as such facility

is not available in his native place at Karnal. According to the 7

appellant, the said surgery may cost him rupees three to four

lacs.

9. Having regard to the afore-mentioned material on

record and keeping in mind that the future of the appellant has

become bleak, so also his marriage prospects are reduced to

greater extent, in our considered opinion, the compensation

awarded to the appellant needs to be enhanced to certain

extent.

The appellant, as mentioned supra, has spent about

rupees three lacs for treatment, hospitalization, medicines,

transportation, nourishing food and miscellaneous expenditure

during the course of treatment. He lost his earnings during the

course of treatment, i.e., at least for a period of four months.

He has also lost his future earnings since he may not be able

to do the job as before and he cannot join Merchant Navy.

Even, it would be very difficult for him to get an alternate job

easily, particularly in view of 50% permanent disability to his

right arm. Thus, the appellant is awarded Rs.10,00,000/-

(Rupees Ten Lacs only) on account of the expenses relating to

treatment, hospitalization, medicines etc, loss of earnings

during the course of treatment and loss of future earnings on 8

account of permanent disability. The appellant is awarded

Rs.3,00,000/- (Rupees Three Lacs only) for future medical

expenses. The appellant must have suffered pain, agony and

trauma as a consequence of injuries. The Court can take

judicial notice of the fact that he may not have bright future as

before. He was just 22 years of age at the time of accident and

was unmarried. It is unfortunate that he had to suffer at this

young age when he was thinking of his bright future life.

Having regard to the material on record, we award

Rs.3,00,000/-(Rupees Three Lacs only) towards pain, agony and

trauma as a consequence of injuries, and Rs.3,00,000/-(Rupees

Three Lacs only) towards loss of amenities(including loss of

prospects of marriage) and Rs.3,00,000/-(Rupees Three Lacs

only) towards loss of expectation of life.

10. Thus, on all counts, the appellant is awarded, in total,

a compensation of Rs.22,00,000/-(Rupees Twenty Two Lacs

only), instead of Rs.8,80,000/-(Rupees Eight Lacs Eighty

Thousand only) awarded by the High Court, along with uniform

rate of interest @ 8% per annum from the date of filing of the

claim petition before the Motor Accident Claims Tribunal till 9

its realization. It is also directed that the payment of

compensation with interest shall be made to the appellant

within three months from today. Needless to mention that any

amount, if already paid, shall be adjusted. The findings of the

Motor Accident Claims Tribunal and the High Court regarding

composite negligence and liability to pay will remain

undisturbed.

11. The instant appeal is accordingly allowed to the

aforesaid extent. There shall be no order as to costs.

……………………………………….J. [S.A. BOBDE]

………………………………………..J. [MOHAN M. SHANTANAGOUDAR]

NEW DELHI;

NOVEMBER 06, 2017.