Delhi High Court
Rashid Rahbar vs Oriental Insurance Co Ltd & Ors on 27 November, 2014
Author: Jayant Nath
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 15.07.2014
Pronounced on: 27.11.2014
+ MAC.APP. 578/2011 and CM Appl.8701/2013
RASHID RAHBAR ..... Appellant
Through Ms.Padmini Gupta, Advocate.
versus
ORIENTAL INSURANCE CO LTD & ORS ..... Respondents
Through Mr.J.P.N.Shahi and Ms.Kirti Sethi,
Advocates.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. Present appeal is filed by the appellant seeking enhancement of
compensation. The brief facts which led to filing of the claim petition and
thereafter the present appeal is that on 17.10.2007 the appellant was going
with his brother on a motorcycle. In front of RTO Office before Police Post
Okhla, Delhi, their motorcycle was hit by a truck said to be driven at a very
fast speed in a rash and negligent manner. The motorcycle fell down and the
appellant suffered grievous injuries. The offending vehicle crushed the left
leg of the appellant which had to be amputated.
2. On compensation the Tribunal awarded the following compensation:-
Loss of income Rs. 1,24,576/-
Loss of earning Rs.11,11,840.80
capacity due to
disability
Medicines and Rs. 38,514/-
medical treatment
Future Rs. 2,45,250/-
treatment/artificial
limb
Loss of academics Nil
Pain and sufferings Rs. 25,000/-
Loss of marriage Rs. 25,000/-
prospects
Conveyance, special Rs. 30,000/-
diet and attendant
Loss of amenities of Rs. 25,000/-
life
Physical Rs. 25,000/-
disfigurement
TOTAL Rs.16,50,180.80.
COMPENSATION
3. The Tribunal assessed the income of the appellant based on the
appointment letter of HDFC Standard Life Insurance Co.Ltd.Ex.PW1/A1
which showed gross salary of Rs.15,572/- per month. It further assessed the
functional disability of the appellant based on the disability certificate
Ex.PW1/A which shows the functional disability of 70% in relation to left
lower limb and the evidence of PW-1. Dr.Satish Kumar who assessed the
functional disability at 48% in relation to the whole body. The Tribunal
assessed the functional disability at 35%. Total compensation for loss of
earning capacity due to disability was assessed at Rs.11,11,840/-.
4. Learned counsel appearing for the appellant impugns the Award
under various heads. She submits that the functional disability of 35% had
been wrongly assessed keeping into account the fact that the disability of the
left lower limb was 70%. It is submitted that the functional disability should
also have been assessed at 70%. It is also urged that relying upon section
163-A of the M.V.Act read with note 5 of schedule 2 compensation for loss
of salary should have been awarded for at least 52 weeks and not for nine
months as awarded by the Tribunal. It is next urged that after having
assessed the income of the appellant for the purpose of computing loss of
earning capacity due to disability the assessed income has not been
enhanced by future prospects considering that the age of the appellant on the
date of the accident was 30 years.
5. It is next urged that while assessing the salary of the appellant, the
Tribunal has not taken into account the provident fund and gratuity which
was also receivable by the appellant as a component of the salary. It is
urged that Rs.10,000/- would have been the amount under the heads which
have been ignored and not added to the salary. It is next urged that the
Tribunal has awarded Rs.1,43,250/- for an artificial limb and Rs.1,02,000/-
for maintenance of the artificial limb for next 10 years. It is urged that after
10 years the appellant would require maintenance of the limb and hence the
compensation on this account should be enhanced.
6. Learned counsel appearing for the respondents have strongly opposed
the enhancement of compensation sought for. It is urged that functional
disability of 35% assessed by the Tribunal is in order as there is no evidence
on record to the contrary. Reference is made to the cross-examination of
PW-1 who has said that the functional disability of the overall body would
be 48%.
7. I will first deal with the issue of functional disability as assessed by
the Tribunal. The appellant himself entered the witness box. In his affidavit
by way of evidence he states the following regarding the effect of the
accident on his career:-
"That I was 34 years of the age at the time of accident. I
used to work as a Sales Development Manager with
HDFC Standard Life Insurance Company Limited at
Bhikaji Cama Place, New Delhi and was drawing a salary
amount to RS.2,25,000/- per annum. My pay slip for the
month of August, 2007 is marked as PW-2/V and the
photocopy of my I. Card, Pan Card, Election I. Card and
Driving License are marked as Ex. PW-2/W to Ex. PW-
2/Z.
That the said accident has jeopardized my entire career/
future and I have been leading as miserable life of an
unemployed since the date I met with the said accident.
Apart from this my marriage prospects has also suffered a
set back."
8. In his cross-examination he states that his job is a field job and due to
accident he is unable to perform his work efficiently. He admits that he has
not been removed from service by the company till today. His cross-
examination is carried out on 9.7.2009 whereas the accident took place on
17.10.2007.
9. Similarly, PW-1 Dr.Satish Kumar, Sr. Orthopedic Surgeon, RML
Hospital, New Delhi has confirmed that the disability certificate was issued
with 70% physical impairment in respect of left lower limb. In his cross-
examination he states that disability of the whole body is about 48%.
10. Similarly, PW-5 Ms.Shewta Mishra, Manager, HR, HDFC Standard
Life Insurance Co.Ltd. the employer of the appellant in her evidence states
that the appellant was employed as a Sales Development Manager and his
duties were field job. She also states that because of amputation he cannot
be deployed for field duty but will be adjusted in the same salary in some
other department. She also confirms that had the appellant not met with the
accident, based on his performance he would have got incentives and
progress and that he cannot be promoted in his line of employment.
11. The appellant has not given proper evidence to show the impact of the
accident on his professional career. The affidavit by way of evidence is
general in nature. It also cannot be ignored that the accident took place on
17.10.2007. The cross-examination took place on 9.7.2009. Hence, even
roughly 18 months after the accident he is still being employed by his
employer HDFC Standard Life Insurance. PW-5 does mention about loss of
incentives but no details are given. Accordingly, in my opinion, the
Tribunal has rightly assessed the functional disability as 35%. There are no
reasons to differ with the said finding in the Award.
12. I will now deal with the issue of loss of income which the appellant
claims for 52 weeks. The Tribunal noted that though the appellant claims
that he could not earn since the date of the accident but he has not placed on
record any certificate of the doctor to substantiate his claim. The Tribunal
noted that PW-5 had deposed that the appellant is on medical leave without
pay. The Tribunal further noted that the appellant was appearing in Court
regularly since 22.9.2008 and he has already purchased an artificial limb in
May 2009. The Tribunal concluded that the appellant could have attended
the office after purchase and adjustment of the artificial limb. However, the
Tribunal held that on account of the injuries suffered and amputation of his
left leg, the appellant could not have attended his work for 8 months and
accordingly granted a compensation of Rs.1,24,576/- being loss of salary for
eight months. In the light of the evidence on record there are no reasons to
differ with the view taken by the Tribunal i.e. that the appellant could have
joined duties after eight months.
13. The reliance of the appellant on section 163A of the M.V.Act is
misplaced. This is a petition filed under section 166 of the M.V.Act. The
provisions of 163A would only be a guiding factor. Further Clause 5 of
Schedule (II) of section 163A of the Act provides that loss of income, if any,
for the actual period of disablement not exceeding 52 weeks is to be paid for
victims of non fatal accidents. It is for the appellant to prove that there was a
loss of income for 52 weeks before compensation under the said provisions
can be awarded. In the present case, as already stated above, the appellant
has failed to prove that there was a necessity to remain on leave for the
period of 52 weeks as is being claimed by the appellant.
14. The next contention raised by the learned counsel for the appellant
pertains to grant of future prospects for the purpose of computing loss of
earning capacity. A perusal of the Award shows that the Tribunal has
assessed the income based on the appointment letter showing income of
Rs.15,572/- per month. The loss of earning capacity due to disability has
been assessed based on this income. In view of the judgment of the
Supreme Court in V. Mekala vs. M. Malathi & Anr 2014 ACJ 1441 and
Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54, I enhance the
assessed income by 50% on account of future prospects for calculation of
loss of earning capacity due to disability.
15. Coming to the next issue raised by the learned counsel for the
appellant regarding the addition of provident fund and gratuity being not
added to the salary of the appellant. A perusal of the evidence of PW-1 and
PW-5 shows that there is no attempt to elaborate or explain or prove these
aspects of the salary. Ex.PW2/A2 the salary slip of October 2007 also does
not mention any such composition. The salary shown in the salary slip is
Rs.13,748/- and the Tribunal has already taken the salary at Rs.15,572/-
which is on a higher side. In view of the nature of evidence led, there is no
reason to differ with the view of the Tribunal for computing the income at
Rs.15,572/-.
16. Hence, the loss of earning capacity due to disability amounts to
Rs.16,67,761/- [(Rs.15,572/- + 50%) x 12 x17 x 35%].
17. As far as the next submission is concerned, regarding maintenance of
the artificial limb no evidence is pointed out to show as to why the
compensation awarded for Rs.2,45,250/- for the artificial limb and future
maintenance is inadequate.
18. Coming to non pecuniary damages the Tribunal has awarded
Rs.25,000/- for pain and suffering, Rs.25,000/- for loss of marriage
prospects, Rs.25,000/- for loss of amenities and Rs.25,000/- for physical
disfigurement.
19. As per discharge summary of Indraprastha Apollo Hospital, Delhi
Ex.PW2/A the appellant was admitted on 18.10.2007 and was discharged on
17.11.2007.
20. PW-2 in his evidence has said that after discharge from hospital he
used to visit the hospital twice or thrice in a month for about one year. The
OPD Cards, medical reports have been filed as Ex.PW2/B. He further states
that he has received medical treatment from Abidin Medical Centre, Jamia
Nagar, New Delhi where he underwent dressing of the wound. He states
that he visited the said hospital daily for about a month.
21. Keeping in view the nature of the prolonged treatment and the nature
of injuries suffered, I enhance the compensation payable for pain and
suffering from Rs.25,000/- toRs.50,000/-. I also enhance the compensation
for loss of marriage prospects, loss of amenities of life and physical
disfigurement from Rs,25,000/- to Rs.50,000/- each.
22. The total compensation now payable to the appellant would read as
under:-
Loss of income Rs. 1,24,576/-
Loss of earning Rs.16,67,761/-
capacity due to
disability
Medicines and Rs. 38,514/-
medical treatment
Future Rs. 2,45,250/-
treatment/artificial
limb
Loss of academics Nil
Pain and sufferings Rs. 50,000/-
Loss of marriage Rs. 50,000/-
prospects
Conveyance, special Rs. 30,000/-
diet and attendant
Loss of amenities of Rs. 50,000/-
life
Physical Rs. 50,000/-
disfigurement
TOTAL Rs.23,06,101/-
COMPENSATION
23. The respondent No.1/Insurance company may deposit the additional
compensation amount with the Registrar General of this Court, as directed
by this court alongwith interest @ 7.5% per annum from the date of filing of
the petition i.e. 4.1.2008 till deposit in court
24. The Registrar General may release 50% of the amount to the
appellant. Balance 50% be kept in a Fixed Deposit for a period of five years
through UCO Bank, Delhi High Court. The appellant shall be entitled to
receive quarterly interest on the said amount. Appeal stands disposed of.
JAYANT NATH
(JUDGE)
NOVEMBER 27, 2014
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