Delhi High Court
Tara Chand Sharma vs United India Insurance Company on 10 October, 2014
$~A-9, A-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 10th October, 2014
+ MAC.APP. 444/2012
UNITED INDIA INSURANCE CO LTD ..... Appellant
Through
versus
TARA CHAND SHARMA & ORS ..... Respondent
Through Mr.Navneet Goyal, Adv. for R-1
Ms.Tehsina Hussain, Adv. for
Mr.Sarfaraz Khan, Adv. for DTC
+ MAC.APP. 1150/2012
TARA CHAND SHARMA ..... Appellant
Through Mr.Navneet Goyal, Adv.
versus
UNITED INDIA INSURANCE COMPANY ..... Respondent
Through Ms.Tehsina Hussain, Adv. for
Mr.Sarfaraz Khan, Adv.for DTC
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present two appeals arise out of the Award dated 08.02.2012.
MAC.APP.No.444/2012 is filed by the appellant/insurance company
challenging the quantum of compensation awarded by the impugned award.
MAC.APP.No.1150/2012 which was originally filed as cross-objections has
been filed by the claimant seeking enhancement of the compensation.
2. The brief facts leading to the filing of the petition are that the claimant
Tara Chand Sharma on 24.3.2011 was going to Lado Sarai. When he was about
to board a bus belonging to DTC, all of a sudden the driver of the offending
vehicle, namely, ShriRavinder negligently drove the bus. The claimant fell
down on the road and the rear wheel of the bus ran over his left leg. He
sustained multiple injuries on his left leg.
3. The Tribunal awarded a the following compensation:-
"Medical expenses : Rs.8,00,000/-
Pain and sufferings and
Enjoyment of life : Rs.1,00,000/-
Special diet, attendant and
Conveyance charges : Rs.55,000/-
Loss of income : Rs.21,11,500/-
Loss of amenities : Rs.70,000/-
Total : Rs.31,36,500/-"
MAC.App.No.444/2012.
4. I will now deal with the appeal of the appellant Insurance Company
MAC.App.No.444/2012.
5. Learned counsel appearing for the appellant/insurance company submits
that the compensation awarded on account of loss of income is excessive and
on the higher side. He secondly submits that the Award of Rs.8 lacs as
reimbursement of medical expenses is improper as it is submitted that as per
evidence on record the expenses incurred for the medical expenses by the
claimant were reimbursed to him by his employer. He thirdly submits that the
compensation for non pecuniary damages including pain and suffering and loss
of amenities is on the higher side.
6. Regarding compensation for loss of income, learned counsel has
submitted that the Tribunal has wrongly assessed the functional disability at
90%. He submits that as per the disability certificate produced by the claimant
he had 70% physical impairment of the left lower limb. At the relevant time he
was working as a driver and hence he could carry on some other profession.
Hence functional disability as assessed by the Tribunal of 90% is erroneous.
He relies upon the judgment of the Supreme Court in the case of Raj Kumar vs.
Ajay Kumar and Anr., (2011) 1 SCC 343. He further submits that the salary of
the claimant has been taken on the higher side. He points out that as per the
salary certificate produced by the claimant, apart from his salary and other
perks he was receiving every month Rs.665/- as bonus, Rs.720/- as Provident
Fund and Rs.288/- as gratuity. He submits that this amount should have been
deducted inasmuch as it represents a deferred annual payment. Hence,
according to him, the salary of the appellant for computing loss of income
should have been only Rs.16,100/- and not Rs.17,773/- as taken by the
Tribunal.
7. A perusal of the Award shows that the Tribunal noted that the claimant
had placed his termination letter on record which clearly indicates that the
claimant was not capable of performing his duty as a driver in the employer
company due to amputation of his left leg. Based on the photographs and
medical documents placed on record, the Tribunal concluded that the claimant
would not be able to carry on his vocation of a driver. The tribunal hence
assessed his functional disability as 90%. The Tribunal also noted that the
claimant was 54 years of age and at this stage of life it would be very difficult
for him to find a job with an amputated leg.
8. On the question of assessment of salary the Tribunal noted his driving
license in respect of HTV which was Ex.PW1/3 and his salary certificate
Ex.PW1/5. The Tribunal noted that as per his salary slip he was being paid
Rs.2,795/- as conveyance and Rs.600/- for mobile phone and this amount was
deducted from his monthly income of Rs.21,168/- and his monthly salary was
taken as Rs.17,773/-.
9. A perusal of the Disability Certificate of the claimant shows that he is
suffering from 70% physical impairment of his left lower limb. This disability
certificate is issued by Pt.Madan Mohan Malviya Hospital. A perusal of the
evidence by way of affidavit of PW-1 shows that he has in his affidavit stated
that he is unable to work anymore and that he has also been removed from his
service by his employer. He also states that he is bedridden till that date. There
is no cross-examination of the claimant on these submissions made. Similarly,
PW-2 Dr.Joginder Kumar, Senior Resident Orthopaedics, Pt.Madan Mohan
Malviya Hospital has proved disability certificate and has identified the
signatures of the doctor on the disability certificate which was Ex.PW1/11. He
has mentioned that the claimant is unlikely to drive a motor vehicle though he
can do a sitting job. However, it is stated that any job which requires
ambulation or frequent travelling may also be hampered.
10. The Supreme Court in the case of Raj Kumar vs. Ajay Kumar and Anr.
(supra)has given an example for assessment of functional disability. The
example pertains to a person who has permanent physical disability assessed at
60%. The Supreme Court mentioned that if the claimant in that example was a
driver the actual loss of earning capacity may virtually be 100%.
11. In view of the above facts and circumstances of this case and the legal
position, in my opinion there is no merit in the contentions of the appellant.
There are no grounds to interfere with the findings recorded by the Tribunal
assessing the functional disability at 90%.
12. Coming to the issue of salary, the salary certificate of the claimant issued
by his employer Madan Trading Company Private Limited Ex.PW1/5 is on
record stating that he has been the driver of the Managing Director of the
company and stays in the servant quarter on Sainik Farms, Delhi . He further
points out that he has been provided a furnished residential accommodation.
The Tribunal had accepted his salary certificate.
13. In my opinion, there is no merit in the contention of the insurance
company that the amount paid to the claimant on account of bonus, provident
fund and gratuity is not to be included while computing the net salary of the
claimant. The Supreme Court in the case of National Insurance Company vs.
Indira Srivastava, AIR 2006 SC 485 has held that income is what an employee
carries home at the end of the month including perks which are beneficial to the
members of the entire family. Provident fund, bonus and gratuity would
certainly be part of the income. Hence, there is no merit in the said contention
of the appellant.
14. On the issue of medical expenses, the Tribunal has awarded Rs.8 lacs for
the same. Learned counsel has argued that this amount has been reimbursed to
the claimant. For this he relies upon an investigation done by Ajay Kumar Jain
on behalf of the insurance company where the investigator has said that he
checked up from the claimant and he mentioned to the investigator that all
medical expenses were borne by his company.
15. This bald averment relying upon the report of the investigator cannot be
accepted as evidence to prove that the claimant was reimbursed the medical
expenses from his employer. The report is based on some alleged verbal
statement of the claimant and cannot be accepted. There is no merit in the said
contention.
16. Coming to the last contention of the appellant pertaining to pain and
suffering and loss of amenities. The Tribunal has awarded Rs.1 lac for pain and
sufferings and Rs.70,000/- for loss of amenities.
17. In my opinion there is no merit in the said contention of the appellant.
18. Accordingly there is no merit in the averments of the appellant.
MAC.APP.444/2012 is dismissed.
19. Statutory amount, if any, paid by the appellant at the time of filing the
appeal be refunded to the appellant.
MAC.App.No.1150/2012
20. Coming now to MAC.APP.No.1150/2012. Learned counsel appearing
for the appellant has submitted that the Tribunal has wrongly granted low
compensation for non pecuniary damages to the claimants. He seeks low
enhancement of compensation awarded under the head of pain and suffering
and loss of amenities. He further submits that while computing loss of income
due to disability the Tribunal has not enhanced the income of the claimants on
the ground of future prospects as per judgment of the Supreme Court in the
case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54.
21. On the issue of future prospects, I can take judicial note of the fact that
minimum wages for a skilled worker in 2002 were Rs.3,103.7 P.M. and in 2012
were Rs.8,528/- P.M.It is obvious that the prescribed minimum wages have
more than doubled in ten years.
22. In case of Rajesh & Ors. vs. Rajbir Singh & Ors., (supra), the Supreme
Court held that in the case of self employed or those on fixed wages, when the
victim is above 50 years an addition of 15% should be made in the wages for
the purpose of computing loss of future earnings for the compensation to be
just and equitable.
23. In the case of Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505,
the Supreme Court was of the view that in the case of self employed or those
engaged on fixed wages, 30% increase in income over period of time would be
appropriate. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441,
the Supreme Court in the case of a student who was studying in Class XI aged
16 years had awarded 50% increase for future prospects.
24. In the facts and circumstances of this case and in view of the judgments
above, it would be just and fair to increase the income of the deceased by 15%
as future prospects for the calculation of loss of income as the deceased is
stated to be 54 years of age.
25. Thus, the loss of income now comes to Rs. 24,28,153/- [(17,773/- +
15%) x 90% x 12 x 11].
26. The Tribunal has awarded a sum of Rs.1 lac for pain and suffering and
Rs.70,000/- for loss of amenities.
27. The Supreme Court in the case of Govind Yadav vs. The New India
Insurance Co. Ltd.,(2011) 10 SCC 683 had awarded Rs.1,50,000/- for loss of
amenities and enjoyment of life. That was also a case of amputation of one of
the limbs. Accordingly, I enhance the compensation awarded by the Tribunal
for loss of amenities from Rs.70,000/- to Rs.1,50,000/-.
28. On pain and sufferings, in my opinion, the Award of compensation of
Rs.1 lac is adequate and no further enhancement would be necessary. The
compensation awarded by the Tribunal in this account is just and fair.
29. In view of the above, the total compensation now payable would read as
under:-
Medical expenses : Rs.8,00,000/-
Pain and sufferings and
Enjoyment of life : Rs.1,00,000/-
Special diet, attendant and
Conveyance charges : Rs.55,000/-
Loss of income : Rs.24,28,153/-
Loss of amenities : Rs.1,50,000/-
Total : Rs.35,33,153 /-
30. The insurance company will deposit the enhanced compensation amount
with pendente lite interest of 9% per annum from the date of filing of petition
till deposit in Court. On deposit of the enhanced compensation amount the
Registrar General may release the amount to the claimant. Appeal stands
disposed of.
JAYANT NATH, J
OCTOBER 10, 2014
n/sh
