Puran Singh vs New India Assurance Co. Ltd. And
2016 Latest Caselaw 581 Del

$~R-9
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Date of Decision: 27th January, 2016

+      MAC.APP. 728/2006
       PURAN SINGH                                        ..... Appellant
                         Through        Mr. O P Gupta and Mr. Nitin
                                        Garg, Advs.
                         versus
       NEW INDIA ASSURANCE CO. LTD. AND                 ..... Respondents
                         Through        Mr. D K Sharma, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                         JUDGMENT

R.K.GAUBA, J (ORAL):

1. The appellant had suffered injuries in a motor vehicular accident at about 11.30 AM on 19.06.2002 in the area of Sera Ghat at Kasad Band, 41 kms from Almora while travelling in Tata Sumo bearing registration No.UA 04 4464 which fell into a gorge. He filed claim petition under Sections 166 and 140 of Motor Vehicles Act, 1988 ("MV Act") on 05.06.2003 registered by the Motor Accident Claims Tribunal ("the Tribunal") as petition No.145/2003. The appellant insurance company was impleaded as a party respondent, in addition to Paan Singh Khati, the registered owner of the said vehicle. Admittedly, the said vehicle was insured against the third party risk with the respondent insurer. The Tribunal awarded compensation in the sum of Rs.5,17,000/-, taking into account his notional income at Rs.3,500/- per month on the basis of rates of minimum wages payable at that point of time and factoring in the disability suffered to the extent of 30% of

permanent character.

2. The appellant brought this appeal assailing the award granted by judgment dated 30.01.2006, inter alia, pleading that his treatment had continued and that he has been eventually certified to have suffered permanent disability to the extent of 74%. On his request, he was granted permission to lead additional evidence, in the wake of which he examined himself (as AW-1) on the strength of his affidavit (Ex.AW- 1/1). During the inquiry before the Tribunal, he had proved disability certificate (Ex.PW-1/136) issued on 21.10.2005 by a Medical Board of Lok Nayak Hospital, Govt. of NCT of Delhi. During the opportunity given for additional evidence, he examined Dr. Kartik Saxena (AW-2) to prove a fresh disability certificate (Ex. AW2/1) obtained by him on 25.05.2006 from a Medical Board of Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi of Govt. of NCT of Delhi.

3. The appellant is also aggrieved with the notional income assumed at the rate of minimum wages, his contention being that his claim about salary to the tune of Rs.5,000/- per month could not have been ignored. He relies on judgment on Sanjay Kumar V. Ashok Kumar and Anr. (2014) 5 SCC 330. He further contends that non-pecuniary damages on the ground of pain and suffering and loss of amenities have not been duly compensated and the rate of interest awarded (6% per annum) is on the lower side.

4. It is noticed that on the basis of disability certificate dated 21.10.2005 (Ex.PW-1/136), the Tribunal had factored in the extent of permanent disability to the tune of 30% in relation to the whole body and calculated the loss of future earning capacity accordingly. The disability certificate dated 25.05.2006 (Ex.AW-2/1) itself declares that

the disability to the extent of 74% has been assessed in relation to the left lower limb. In these circumstances, it cannot be said that the Medical Board in the later opinion has given any indication of the earlier opinion being erroneous. In fact, there is nothing on record to show but when the second opinion was taken, the Medical Board was apprised of the disability certificate granted earlier by the other government hospital. There is no material either to show that the appellant had undergone any further treatment or surgical procedure after his disability had been certified to the extent of 30% by the Medical Board on 21.10.2005. In these circumstances, there is no justification for any further increase on account of loss of functional disability on the basis of disability certificate dated 25.05.2006.

5. The Tribunal was not satisfied with the claim about the income of Rs.5,000/- per month. Clearly, on this score it is only the word of the claimant himself which is pressed in aid. It has been consistent view of this Court and of the Supreme Court in various pronouncements that in absence of any formal proof in cases of this nature, the minimum wages are the appropriate benchmark. In the case of Sanjay Kumar (supra), the injured claimant was an embroider. In the peculiar facts and circumstances, the Supreme Court upheld the evidence led about his income. In the case at hand the Tribunal has assumed the notional income at Rs.3,500/- per month, which is higher than the minimum wages payable during those days. Thus, there is no error in the view taken by the Tribunal on this score.

6. The appellant was a driver by profession. Indeed, as a result of the injuries and permanent disability suffered, there has been a loss of amenities which require to be duly compensated. Having regard to

these facts, the compensation on account of pain & suffering and loss of amenities is increased to Rs.1 lakh each.

7. In the result, the compensation would stand enhanced by Rs.75,000/- over and above what was granted by the Tribunal in the impugned judgment. This Court finds that the interest @ 6% is deficient. Having regard to the consistent view taken in series of pronouncement by this Court and Supreme Court, the interest is increased to 9% per annum from the date of filing of the petition for the period directed by the Tribunal in the impugned judgment. [Municipal Corporation of Delhi, Delhi V. Association of Victims of Uphaar Tragedy and Ors., (2011) 14 SCC 481; Surti Gupta V. United India Insurance Company and Ors., 2015 (3) SCALE 795; Basappa V. T. Ramesh, (2014) 10 SCC 789; Kumari Kiran V. Sajjan Singh (2015) 1 SCC 539 and Syed Sadiq etc. V. Divisional Manager, United India Ins. Company (2014) 2 SCC 735]

8. The enhanced compensation of Rs.75,000/- with the corresponding interest shall be paid by the respondent insurer within 30 days of this order and the said amount shall be put in fixed deposit receipt for a period of six years with liberty to draw quarterly interest.

9. On being asked, the learned counsel for the appellant submitted that the amount in terms of the impugned award has already been received. In case of any default on the part of the insurance company in making timely payment in terms of the modification ordered above, the appellant will be entitled to take out appropriate execution proceedings before the Tribunal.

R.K. GAUBA (JUDGE) JANUARY 27, 2016/VLD