Delhi High Court
Rajaram Prasad vs Sultan & Ors on 23 May, 2016
$~10 & 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.05.2016
+ MAC.APP. 1199/2013
RAJARAM PRASAD ..... Appellant
Through Mr. S N Parashar, Adv.
versus
SULTAN & ORS ..... Respondent
Through Ms. Neerja Sachdeva, Adv. for R-3
+ MAC.APP. 205/2014
DELHI TRANSPORT CORPORATION
..... Appellant
Through Ms. Avnish Ahlawat with Ms. Latika
Chaudhary, Advs.
versus
UNITED INDIA INSURANCE COMPANY LTD ..... Respondent
Through Ms. Neerja Sachdeva, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Rajaram Prasad (appellant in MAC.APP.No.1199/2013), who is about
38 years old, self-employed in business, suffered injuries in motor vehicular
accident that occurred on 08.07.2011 on account of negligent driving of bus
bearing No.DL 1PC 9683 (the offending vehicle) of Delhi Transport
Corporation (DTC), driven by its employee Sultan (first respondent in
MAC.APP.No.1199/2013). He was rendered permanently disabled on
account of consequent amputation of his right upper limb above elbow. He
filed an accident claim case (MACT No.276/11) before the motor accident
claims tribunal (tribunal) on 10.08.2011, impleading the said Sultan (driver),
DTC (appellant in MAC.APP.No.205/2014) and United India Insurance Co.
Ltd. (insurer) as respondents, the last party having admittedly issued an
insurance policy against third party risk covering the period in question in
respect of the offending vehicle. On the basis of inquiry held, the tribunal,
by judgment dated 08.10.2013, upheld the case about injuries and permanent
disability having been suffered on account of accident caused due to
negligent driving of the offending vehicle. Compensation in the sum of
`15,77,836/- was awarded with interest at 7.5% per annum from the date of
filing of the petition till realization (subject to adjustment of the amount paid
as interim compensation), it having been calculated thus :
Sl.No. On Account of Amount (Rs.)
1 Towards medical expenses. Rs.36,987/-
2 Towards six months salary Rs. 31,614/-
3 Towards future loss of income Rs.12,09,235/-
4 Towards non pecuniary heads Rs.3,00,000/-
Total Rs. 15,77,836/-
2. The insurer had admitted the liability to indemnify but set up a
defence that the driving license of Sultan (driver) had been obtained
surreptitiously in violation of the laws and rules. The tribunal considered
this plea of the insurer and returned a finding that the driving license though
confirmed to have been issued by licensing authority at Nagaland was to be
treated as fake since it had been admitted that the driver had never visited
the said authority nor had undergone a test anterior to its issuance. The
insurance company was directed to pay the compensation but granted rights
to recover against Sultan and DTC.
3. The claimant by his appeal (MAC.APP.No.1199/2013), has submitted
grievance that though he had proved his income by submission of income
tax returns (ITRs) for the assessment year 2002-03 upto 2010-11, the
tribunal declined to accept the said proof and proceeded to assess the loss of
income on account of loss of dependency assuming the minimum wages of
matriculate payable in the state of Uttar Pradesh. This, in the submission of
the claimant, was improper and has resulted in inadequate award of
compensation. The claimant further submits that the lumpsum of Rs.3 lakh
under the non-pecuniary heads of damages and the rate of interest at 7.5%
per annum is inadequate. He also points out that though he had led evidence
to prove that an artificial limb can be arranged from a company dealing in
such systems, as proved on record through quotations (Ex.PW3/B & C), the
benefit of the same was not even considered by the tribunal.
4. DTC, by its appeal (MAC.APP.No.205/2014), on the other hand,
argues that the finding that the driver may have obtained the driving license
surreptitiously or by improper means from the licensing authority at
Nagaland could not have been used to allow the insurer to get away with the
indemnity clause. It submits that, as a responsible employer, it had
exercised due diligence by obtaining a copy of the driving license of the
driver before engaging him, it admittedly being a document actually issued
by the licensing authority at Nagaland and, therefore, the recovery rights
granted against it are unfair dispensation.
5. Having heard the learned counsel on all sides and having gone
through the tribunal's record, this Court agrees with the submission of the
claimant that his income has not been properly assessed. It is noted that
though the claimant had proved the ITRs for the period 2002-03 upto 2011-
12 by documents (Ex.PW1/60 to 87), the tribunal was not impressed for the
reason these returns do not indicate the nature of business. The tribunal did
not notice that the forms in which the ITRs were submitted to the income tax
department, contain no column wherein the nature of business is to be
declared. The claimant had appeared in evidence as PW1 affirming on oath
the necessary facts by his affidavit (Ex.PW1/A) testifying, inter alia, that he
had been working for gain as an artisan shaping all kinds of gems and jewels
for manufacture of jewellery items. In absence of any proof to the contrary,
his unchallenged testimony to this effect could not have been disbelieved.
6. The ITR for the assessment year 2011-12 (Ex.PW1/85-87) is,
however, kept out of consideration because it was submitted after the
accident. The ITRs for the preceding periods beginning for assessment year
2002-03 (Ex.PW1/60-62) and ending with that for assessment year 2010-11
(Ex.PW1/82-84) show progressive rise in income from Rs.49,870/- per
annum to Rs.1,92,892/- per annum. There is no reason why the last said
declared income for assessment year 2010-11 could not have been taken as
the benchmark for making assessments of loss of earnings due to disability.
In the face of such irrefutable evidence, the benefit of future prospects of
increase to the extent of 50% also deserved to be factored in. [see judgment
dated 28.03.2016 in MAC.APP. 548/2013 United India Insurance Co. Ltd.
v. Kamla & Ors.]
7. The income for calculating the loss of earnings is, therefore,
computed as (1,92,892 x 150 ÷ 100) ₹2,89,338/-.
8. The disability certificate dated 25.11.2011 (page 419 of the tribunal's
record) shows that the medical board of Lal Bahadur Shashtri Hospital,
Government of NCT of Delhi had assessed the claimant to be a case of
physical disability to the extent of 85% in relation to the right upper limb.
The tribunal accepted the case to be one of functional disability to the extent
of 85%. This conclusion has not been challenged by any of the respondents.
Even otherwise, it seems to be in consonance with the percentage of loss of
earning capacity in such cases as is specified in the first schedule to the
Employees' Compensation Act, 1923. Thus, the loss of future earnings on
account of permanent disability to the extent of 85% in the case of the
claimant (aged 38 years) on the multiplier of 15 is calculated as (2,89,338 x
85 ÷ 100 x 15) ₹36,89,059.50 rounded off to ₹36,90,000/-.
9. The tribunal had awarded loss of income during the period of
treatment at ₹31,614/-, on the basis of minimum wages. Having regard to
the conclusions reached above, the loss of income for the period of six
months of treatment is recomputed as (1,92,892 ÷ 2) ₹96,446/- rounded off
to ₹97,000/-.
10. The tribunal's record shows that the claimant had led evidence to
prove that there is a possibility of he having the benefit of an artificial
endolite mayo electric hand system. Two quotations, one (Ex.PW3/B)
requiring an expenditure of Rs.5,61,900/- and the other (Ex.PW3/C) wherein
expenditure would be 1,19,900/- were submitted through Ms. Ekta (PW3),
Prosthetist and Orthotist of M/s Endolite India Ltd. The learned counsel for
the claimant submits that the artificial limb described in the second
document (Ex.PW3/C) would suffice. It is noted that the quotation given in
December, 2012 was valid for a period of three months. Having regard to
the period since undergone and the fact that equipments of this nature
generally require regular maintenance and upkeep or even replacement, as
pressed by the counsel for the claimant, provision for finance for two such
equipments (one for immediate use and the other for replacement in future)
would suffice. In these circumstances, assuming the present cost to be in the
region of ₹1,50,000/-, the award of ₹3 lakhs is granted for artificial limb.
11. In the considered view of this Court, the lumpsum award of non-
pecuniary damages in the sum of ₹3 lakh was indeed deficient. Having
regard to the nature of injuries suffered and their effect on the quality of life
of the claimant, compensation in the sum of ₹1,50,000/- toward pain &
suffering, ₹1,50,000/- towards loss of amenities of life and ₹1,00,000/- on
account of disfigurement are awarded. Putting all the above mentioned
heads together, along with ₹36,987/- calculated as medical expenses, the
total compensation payable in the case comes to (36,90,000 + 97,000 +
3,00,000 + 1,50,000 + 1,50,000 + 1,00,000) ₹45,73,987/- rounded off to
₹45,74,000/-.
12. Following the consistent view taken by this Court [see judgment dated
22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta
Devi & Ors.], the rate of interest is increased to 9% per annum from the date
of filing of the petition till realization.
13. The award is modified accordingly.
14. The insurance company is directed to deposit the enhanced portion of
the compensation including on account of increase in the rate of interest
with the tribunal within 30 days of this judgment. Upon such deposit being
made, the same shall be released to the claimant in the form of four fixed
deposit receipts of equivalent amounts, to be kept in a nationalized bank of
his choice with right to draw periodical interest from three of them. The
fourth fixed deposit receipt shall be kept aside to be availed by the claimant
as and when he requires to procure the artificial limb or for purposes of its
maintenance or upkeep or replacement in future. For purposes of release of
amount towards that end, the claimant will have the liberty to approach the
tribunal supporting his request with suitable advice/prescription for the
necessary directions to be issued.
15. The grounds on which recovery rights were granted against DTC
cannot be upheld. The driver may have adopted improper means to secure a
driving license. The fact, however, remains that the driving license was
genuine and, therefore, the insured cannot be made to suffer on such
account. The direction in the impugned judgment about recovery rights are,
thus, set aside.
16. By order dated 21.07.2015 (in MAC.APP.No.205/2014), DTC had
been directed to deposit 50% of the awarded amount with the Registrar
General which was ordered to be kept in fixed deposit receipt for a period of
six months. The said deposited amount shall be refunded to DTC with
statutory deposit, if made.
17. Both appeals are disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 23, 2016
VLD
