Delhi High Court
New India Assurance Co. Ltd. vs Narender Singh @ Birender Singh & ... on 30 September, 2015
$~30 & 31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 30th September,2015
+ MAC.APP. 1231/2012 & CM No.20091/2012 (Stay)
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr.P.Acharya, Advocate
versus
NARENDER SINGH @ BIRENDER SINGH & ORS.... Respondents
Through: Mr.Multan Singh, Advocate.
AND
+ MAC.APP. 1278/2012
NARENDER SINGH @ BIRENDER SINGH ..... Appellant
Through: Mr.Multan Singh, Advocate.
versus
BILKESHAN KAMAT & ORS ..... Respondents
Through: Mr.P.Acharya, Advocate for R-3
PRATIBHA RANI, J. (Oral)
1. These two appeals bearing MAC.APP. No.1231/2012 and MAC.APP.
No.1278/2012 arise out of the award dated 1st October, 2012 passed by
learned Motor Accident Claims Tribunal whereby a total compensation of
₹1,98,413/- has been awarded to injured/claimant Narender Singh @
Birender Singh for the injuries suffered by him in a motor vehicle accident
caused on 23.09.2010 by the offending vehicle i.e. Wagon-R bearing
registration No.DL-3C-Z-6842.
2. On appreciation of evidence, the learned Claims Tribunal held that the
accident was caused due to rash and negligent driving of Sh.Bilkeshan
Kamat - driver of the offending vehicle.
3. The learned Claim Tribunal after considering the material on record
awarded compensation of ` 1,98,413/- along with interest @ 9% per annum
under the following heads:-
Treatment expenses ` 7,301/-
Pain & Sufferings ₹ 40,000/-
Diet & Conveyance ` 20,000/-
Attendant's charges ` 10,000/-
Loss of income ` 21,112/-
Disability/Loss of appearance/ ₹ 1,00,000/-
enjoyment of life
Total ₹ 1,98,413/-
4. For the sake of convenience, appellant in MAC.APP No.1231/2012
i.e. New India Assurance Co. Ltd. shall be referred to as insurance company
and appellant in MAC.APP.No.1278/2012 namely Narender Singh @
Birender Singh shall be referred to as claimant.
5. The finding of rash and negligent driving has not been challenged by
the owner/driver of the offending vehicle and the same has attained finality.
6. On behalf of insurance company, it has been submitted that the
learned Tribunal failed to appreciate that the permanent disability to the
extent of 5% in respect of left lower limb has not caused any loss of earning
capacity and at the most the earning capacity could have been assessed at
2.5%, hence award of compensation of ₹1,98,413/- is exorbitant. Learned
counsel for the insurance company has further submitted that the
compensation awarded to the claimant under heads 'Pain & Suffering', 'Diet
& Conveyance', 'Loss of Income' and 'Disability/Loss of
appearance/Enjoyment of Life' is also on higher side and cannot stand the
test of judicial scrutiny as compensation cannot be awarded as bonanza but
has to be just and proper.
7. On behalf of claimant, Sh.Multan Singh, Advocate has submitted that
the claimant in this case was non-matriculate and the minimum wages for a
non-matriculate should have been ₹ 5850/- per month but the learned
Tribunal in its award has taken the minimum wages ₹5278/- per month,
which is not correct. It has been further submitted that the learned Tribunal
has not considered the loss of future income and under non-pecuniary head,
the compensation instead of being just and proper, is meagre. Learned
counsel for the claimant has relied upon S.Manickam vs. Metropolitan
Transport Corp. 2013 (6) LRC 128 (SC) and submitted that determination
of quantum in motor accidents cases and compensation under Workmen's
Compensation Act must be liberal.
8. In order to appreciate the rival contentions, it is necessary to refer to
the testimony of the claimant and the treatment record produced by him.
The claimant filed his examination-in-chief by way of affidavit stating that
on 23.09.2010 at about 4.00 pm while he was standing on the steps of Shop
adjoining the Dhaba where he was employed, he was hit by Bumper of
Wagon-R (black colour) bearing registration No.DL-3C-Z-6842. He
suffered injury on his left ankle. He was taken to Kailash Diagnostic Centre
by his employer Sh.Manjit Singh. PCR was also informed and case FIR
No.138/2010 under Section 279/337 was registered at PS Greater Kailash.
Subsequently he was removed to Trauma Centre for his treatment. He has
stated that he suffered 5% permanent disability which has affected his
physical movement as well future earnings. He has also stated that he
remained absent from duty for four months. During that period, he has
suffered mental pain and agony and became handicapped for whole of his
life. He has also produced the bills of purchasing the medicines which are
Ex.PW1/B (colly.).
9. The Investigating Officer has filed DAR alongwith the treatment
record and copy of the FIR. On the directions issued by the Tribunal on
09.03.2011, the claimant was examined at Pt. Madan Mohan Malviya
hospital wherein his physical disability has been assessed to be 5% in
relation to his left lower limb. In the certificate, it is also mentioned that this
condition is progressive/likely to improve and reassessment was
recommended after a period of one year. After obtaining this certificate
dated 02.06.2011 till date the claimant has not got himself examined to bring
on record the medical report of reassessment of his condition.
10. The Claimant was working as kitchen helper at a Dhaba. At the time
of suffering injury, the claimant was drawing monthly salary of ₹5000/- per
month. As per his own affidavit he could not attend his job for a period of
four month. The OPD slips from Safdarjung Hospital placed on record
establish that he visited the hospital on 11.10.2010, 21.10.2010, 28.10.2010
and 06.12.2010.
11. On the basis of medical bills, the Tribunal has awarded ₹7,301/-.
Thus the claimant cannot have any grievance that cost of treatment has not
been reimbursed to him
12. Although the claimant had been getting salary of ₹5000/- per month,
he has been awarded ₹21,112/- calculating the minimum wages payable to
an unskilled worker i.e. ₹ 5278 X 4 months.
13. The contention of the claimant that he should have been awarded
minimum wages payable to a non-matriculate clerk does not apply to his
case as undisputedly he was an unskilled worker employed as kitchen helper
in a Dhaba and as per the minimum wages payable to an unskilled worker
during that period was ₹5278/- per month and not ₹5850/- per month as
claimed by the claimant, which is payable to a non-matriculate clerical, non-
technical and supervisory staff. Thus, the claimant cannot be left with any
grievance so far as award of compensation towards loss of income is
concerned.
14. The nature of injury suffered by the claimant in this case is fracture of
medial malleolus of left side and has been subjected to ORIF. The learned
Tribunal has awarded ₹40,000/- towards pain and sufferings and ₹20,000/-
towards conveyance and special diet, which can neither be termed as
exorbitant nor inadequate. The learned Tribunal has also awarded ₹10,000/-
towards the attendant charges presuming that due to the injury suffered, the
claimant must have availed the services of some attendant. Not only that,
for disability to the extent of 5% in respect of left lower limb and for
disfigurement and loss of amenities of life, the learned Tribunal has awarded
a sum of ₹1 lac to the claimant. It is a case where injury suffered by the
claimant was on left ankle and as per the disability certificate issued by
Pt.Madan Mohan Malviya hospital, it required reassessment of the nature of
permanent disability which has not been got done till date. I am of the
considered view that the award of total compensation of ₹1,98,413/- to the
claimant cannot be considered as exorbitant as claimed by the insurance
company or inadequate as claimed by the claimant.
15. Both the appeals are hereby dismissed.
16. The statutory amount of ₹25,000/- deposited by the insurance
company at the time of filing MAC.APP. No.1231/2012 shall be refunded to
the insurance company.
17. Perusal of the record reveals that 50% of the award amount has
already been released to the claimant as directed by this Court vide order
dated 30.01.2014. The Registry is directed to issue directions to UCO Bank,
Delhi High Court Branch to release remaining 50% of the award amount
alongwith interest accrued thereon to the claimant.
A copy of this order be given dasti to learned counsel for the parties,
as prayed.
PRATIBHA RANI, J.
SEPTEMBER 30, 2015
'st'
