Delhi High Court
The Oriental Insurancec Co Ltd vs Vinod Kumar & Ors on 19 December, 2014
$~A-64
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19.12.2014
+ MAC.APP. 1157/2014
THE ORIENTAL INSURANCEC CO LTD ..... Appellant
Through Mr.A.K.Soni, Advocate
versus
VINOD KUMAR & ORS ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. The present appeal is filed seeking to impugn the Award dated
1.10.2014.
2. The background facts are that on 1.6.2013 respondent No.1 was sitting in
the capacity of a helper with the driver in the cabin in the Canter. The Canter
was coming to Delhi from Neemrana. At District Rewari it was hit by a Trailer
stated to be driven by its driver at a high speed rashly and negligently in a zig-
zag manner. Due to the sudden and forcible impact, respondent No.1 sustained
grievous injuries on his left leg and other grievous injuries on all parts of his
body.
3. Based on the evidence on record the Tribunal concluded that the accident
took place due to the rash and negligent driving of the driver of the trailer.
4. On the issue of compensation the Tribunal awarded the following
compensation to respondent No.1:-
Medicines and medical treatment Rs.10,000/-
Pain and suffering Rs.75,000/-
Loss of amenities of life Rs.30,000/-
Disfiguration Rs.20,000/-
Loss of Marriage Prospects Rs.15,000/-
Conveyance Rs.10,000/-
Special diet Rs.5,000/-
Attendant Charges Rs.12,000/-
Loss of income Rs.14,16,500/-
Total Rs.15,93,500/-
5. A perusal of the Award shows that the Tribunal noted that respondent
No.1 was suffering from permanent disability of 80% of the left lower limb
which would affect his working capacity. Considering the nature of disability,
the age of respondent No.1 and other attending circumstances, the Tribunal
fixed the functional disability at 50% for the whole body. The Tribunal also
noted that as per the School Leaving Certificate Ex.PW1/5 respondent No.1
had studied upto class V. It also noted that as per respondent No.1 he was
working as a helper on the Canter on private service and was getting a salary of
Rs.9,000/- per month. The Tribunal assessed the income based on minimum
wages for a non matriculate prevalent on that date as Rs.8,528/- per month.
This amount was enhanced by 50% on account of future prospects. Keeping the
age of respondent No.1 in mind of 20 years a multiplier of 18 was used and loss
of income was assessed at Rs.14,16,500/-.
6. Learned counsel appearing for the appellant submits that there is no
proof of negligence inasmuch as the accident took place on 1.6.2013, the FIR
was registered on 24.6.2013. He secondly submits that the respondent No.1
being an employee of the owner of the Canter would be entitled to
compensation under the Employees' Workman Act also. Hence, he submits
that the employee and the insured/owner of the tanker would also be necessary
and proper parties to the case. He thirdly submits that the income of
respondent No.1 has been wrongly assessed by the Tribunal inasmuch as
respondent No.1 was doing the work of an unskilled labourer i.e. helper on the
vehicle. Hence, it is urged that the Tribunal has wrongly assessed the income of
respondent No.1 based on minimum wages for a non matriculate whereas the
minimum wages for an unskilled worker would be the appropriate criteria to
assess the income of respondent No.1.
7. As far as the negligent part is concerned, the Tribunal has noted that the
accident took place on 1.6.2013 but the FIR has been registered on 24.6.2013
under section 279/338 IPC. Thereafter the chargesheet has been filed against
the driver of the offending vehicle. The Tribunal has also noted the site plan
filed on record. The Tribunal also noted that PW1/respondent No.1 was also
examined and cross-examined on the delay of FIR and he has stated that he has
informed the police about the accident a day after the accident. Police also is
stated to have come and made enquiry but no statement of respondent No.1 was
recorded. The Tribunal, however, noted that respondent No.1 having sustained
grievous injuries in the accident could obviously not have followed up
immediately for recording/registration of the FIR.
8. Keeping in view the evidence of PW-1 who was an eye witness to the
accident, the chargesheet filed under sections 279/338 IPC against the driver of
the offending vehicle, and the accompanying criminal court documents and
also keeping in view the judgment of the Madhya Pradesh High Court in
Basant Kaur & Ors. vs. Chatarpal Singh & Ors. 2003 ACJ 369 MP (DB.) and
National Insurance Company Limited vs. Pushpa Rana, 2009 ACJ 287 there
is no evidence on record to doubt the conclusions drawn by the Tribunal that
the accident took place due to the rash and negligent driving of the offending
vehicle.
9. The argument that in view of the fact that the respondent No.1 can claim
compensation under Employees' Compensation Act and is likely to misuse the
process of court by filing the present claim petition and thereafter filing a
separate claim under the Employees' Compensation Act cannot be a ground to
make it mandatory to implead the employer and the insurance company of the
Canter on which respondent No.1 was working as a helper. This contention is
clearly without merits.
10. The employer and the insurance company of the Canter would neither be
necessary nor proper parties to the present petition. There presence would not
in any way help in adjudicating upon the controversies involved.
11. The next contention raised by learned counsel for the appellant is
pertaining to the computation of income based on the minimum wages for a
non matriculate. In my opinion, this contention has no merit. It is on record
that respondent No.1 has passed V class. His School leaving certificate has
been duly proved on record. He has in his evidence stated that he was earning
Rs.9,000/- per month. However, the Tribunal noted that no proper
documentary proof of the income of respondent No.1 was placed on record and
hence relied upon the schedule given in the Minimum Wages Act.
12. In the light of the background and the facts and circumstances of this
case, the computation of income based on minimum wages of a non matriculate
is in order. The assessment of income is reasonable.
13. There is no merit in the appeal. Same is dismissed. All pending
applications, if any, also stand dismissed accordingy.
14. Appellant may comply with the Award within four weeks from today.
15. The Statutory amount deposited by the appellant at the time of filing the
appeal be released to the appellant.
JAYANT NATH, J
DECEMBER 19, 2014
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