Delhi High Court
Oriental Insurance Co. Ltd. vs Nihal Chand & Ors. on 6 January, 2017
$~2 & 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: January 06, 2017
(i) + MAC.APP. 200/2011 & C.M.No.4693/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. JPN Shahi, Advocate
versus
NIHAL CHAND & ORS .....Respondents
Through: Mr. Rajnish K. Jha, Advocate for
LRs of respondent No.1
(ii) + MAC.APP. 115/2015
NIHAL CHAND ..... Appellant
Through: Mr. Rajnish K. Jha, Advocate for
LRs of appellant
versus
ORIENTAL INSURANCE CO LTD ..... Respondent
Through: Mr. JPN Shahi, Advocate for
respondent No.3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. The above captioned second appeal is the cross-objections to the
Award of 13th December, 2010 which is assailed in the above captioned
first appeal. Since these two appeals arise out of common impugned
Award, therefore, they are heard together and are being disposed of by
this common judgment.
2. On account of fracture of both the bends of the right forearm
resulting in a restricted movement of wrist and an elbow joint with
deranged hand function in a road accident on 17th February, 2010,
injured-Nihal Chand has been granted compensation of `1,84,400/- with
interest, which is under challenge in the above-captioned first appeal. The
injured was hit by the vehicle in question while he was trying to cross the
road on foot near Sai Baba Mandir, Old Rohtak Road, Azad Market,
Delhi. Impugned Award assesses 40% temporary disability in regard to
right upper limb.
3. During the pendency of the appeal, appellant-injured had died and
his legal heirs have been brought on record as the copy of death
certificate of the injured-Nihal Singh has been placed on record. The
amended memo of parties of 17th March, 2016 is taken on record.
4. At the hearing, learned counsel for insurer submits that loss of
earning for 8 months when injured was under treatment, has been
erroneously assessed by the Tribunal as injured was a pensioner and was
in any way getting the pension and so, grant of compensation of
`32,000/- under the head of 'loss of earning' is unjustified. It is submitted
by learned counsel for insurer that the grant of lump sum compensation of
`50,000/- under the Head of 'loss of future income' is unjustified as there
is no documentary proof to show that the injured was running a grocery
shop and was earning `7,000/- per month. It is also submitted by learned
counsel for insurer for grant of compensation of `75,000/- under the Head
of 'pain and sufferings' is on the higher side and needs to be suitably
reduced. It is further submitted that as per MLC of the injured, he was
under influence of liquor and so, the compensation granted ought to be
suitably reduced while taking into account the contributory negligence of
appellant. Lastly, it is submitted that there is no substance in the cross-
objections by the injured as 40% permanent disability would not justify
enhancement of compensation granted to him, as it is already exorbitant.
5. On the other hand, learned counsel for injured submits that even if
there is no documentary proof on record regarding the earning capacity,
but still there is positive evidence on record to the effect that injured was
hale and hearty and so, there is no reason to discard his oral evidence. To
seek enhancement of compensation, in the cross-objections, learned
counsel for injured submits that while taking into account the permanent
disability of 40% and by applying the multiplier of 5, the compensation
ought to assessed and not on lump sum basis, as has been done by the
Tribunal. It is submitted by learned counsel for injured that no case for
reduction of compensation is made out and infact, the compensation
awarded deserves to be suitably enhanced.
6. Upon hearing and on perusal of impugned order and the evidence
on record, I find that as per Section 185 of the Motor Vehicle Act, 1988, a
person is considered to be drunken if the alcohol contents in his blood
exceeds 30mg per 100 ml of blood, which is to be detected by a Breath
Analyzer Test. Admittedly, no Breath Analyzer Test has been conducted
in the instant case and so, there is no basis to conclude that the alcohol
content in the blood of the injured was exceeding the limit as provided
under Section 185 of the Motor Vehicles Act, 1988. So, it cannot be taken
that there was any contributory negligence on the part of injured.
7. Regarding the 'loss of earning', the learned Tribunal has taken into
account the pension amount and the period of 8 months during which
injured had remained confined to bed on account of grievous injuries
sustained. On the face of it, this finding is erroneous as injured was
getting pension irrespective of his having met with an accident and so,
award of compensation of `32,000/- under the Head of 'loss of earning'
is set aside. Since the injured had positively asserted in his evidence that
he was of good health, therefore, there is no justification to presume that
he was not working. In the absence of any documentary evidence, it is
deemed appropriate to rely upon the minimum wages payable for the
relevant period in a case of semi-skilled worker. In the instant case, the
minimum wages, which the injured could have earned by working, comes
to `6,000/- per month and by applying the multiplier of 5, the loss of
earning is assessed at `72,000/-. As the injured was not in a permanent
employment, therefore, no case for grant of compensation for loss of
future income is made out and so, grant of lump sum of `50,000/- under
the Head of 'loss of future income' is disallowed.
8. Under the Head of 'pain and sufferings', injured has been granted
compensation of `75,000/-, which appears reasonable for the reason that
he was under treatment for a period of 8 months. So, the compensation
granted under this Head is maintained. Nothing substantial has been
urged to increase the quantum of compensation granted. As far as the
grant of compensation under the Head of 'loss of amenities of life and
future enjoyment' is concerned, I find that the compensation of `25,000/-
granted under this Head appears to be on the lesser side. The permanent
disability is of 40%, but I find that the functional disability is of 20%. The
compensation assessed under this Head is `35,000/-. Compensation of
`2,400/- under the head of medical expenses, is however justified.
9. Consequentially, the modified Award of `1,84,400/- shall carry the
interest @ 9% per annum as the interest @7.5% per annum granted by
the learned Tribunal appears to be inadequate.
10. The awarded amount deposited by insurer be released in equal
proportion directly into the bank account of legal heirs of injured, who
had died during the pendency of this appeal. The amount of differential
rate of interest be deposited by insurer with the Registrar General of this
Court within four weeks from today. The statutory deposit be refunded to
insurer.
11. With aforesaid directions, the above captioned two appeals and the
application are disposed of.
(SUNIL GAUR)
JUDGE
JANUARY 06, 2017
s
