Delhi High Court
Devender Singh vs Upsrtc & Ors. on 24 October, 2017
$~R-351
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 24th October, 2017
+ MAC APPEAL No. 520/2011
DEVENDER SINGH ..... Appellant
Through: None.
versus
UPSRTC & ORS. ..... Respondents
Through: Mr. Shadab Khan for Ms.
Garima Prashad, Adv. for R-1.
Mr. Pankaj Seth, Adv. for R-4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant, then aged 28 years, a graduate, engaged as a
conductor on contract basis, suffered injuries in a motor vehicular
accident that occurred on 25.11.2005 due to negligent driving of
private bus bearing registration no. UP 14K 6883, (hereinafter referred
to as the "private bus"), as also negligence on the part of the driver of
another bus bearing registration UP 81 N 9446 of Uttar Pradesh State
Road Transport Corporation (UPSRTC) (hereinafter referred to as "the
bus of the UPSRTC"). He instituted accident claim case (MACT
211/2010) on 18.01.2006 impleading the drivers, owners and insurers
respectively of both the buses as party respondents. On the basis of
evidence led during the inquiry, the Tribunal, by judgment dated
05.03.2011, found a case made out for compensation holding the
drivers of both the buses negligent apportioning the liability equally
amongst them.
2. The Oriental Insurance Company Ltd.(second respondent), it
being the insurer of the bus of UPSRTC had taken the plea that there
was breach of terms and conditions of the insurance policy since
Lakhpat Singh (fifth respondent), the driver of the said bus, was not
holding a valid or effective driving licence. This plea was accepted
and consequently the said insurer of the bus of UPSRTC was granted
right to recover from UPSRTC and also the driver who were held
jointly and severally liable. By the impugned judgment, the Tribunal
awarded compensation in the total sum of Rs. 5,78,610/-, calculating
it, thus:-
S.No. Heads Compensation
1. Towards special diet Rs. 15,000/-
2. Towards conveyance allowance Rs. 15,000/-
3. Towards mental pain & agony Rs. 50,000/-
4. Towards loss of amenities of life Rs. 1,00,000/-
and happiness frustration
5. Towards disfigurement & Rs. 50,000/-
enjoyment of life
6. Towards functional disability Rs. 3,20,362/-
7. Towards medical expense Rs. 4,692/-
8. Towards not being able to do his Rs. 23,556
duties for 6 months
Total Rs. 5,78,610/-
3. It may be noted here that the claimant (the appellant) had
suffered grievous injuries in the accident, his right lower limb above
knee having been amputated to the extent of 1/3 rd, the board of doctors
constituted by Chief Medical Officer, Baghpat, UP having certified
(Ex.PW-1/1) he to have been rendered permanently physically
handicapped to the extent of 80%.
4. The tribunal concluded that the functional disability suffered by
the appellant was 40% in relation to the whole body. It rejected the
evidence that the appellant was earning Rs. 6,000/- per month and
assumed the income notionally with the help of minimum wages
(Rs.3,926) as payable to a graduate during the relevant period and
granted the award accordingly.
5. The appeal at hand was filed primarily raising the grievance that
the loss on account of permanent disability had not been properly
assessed as the income of Rs. 6,000/- was wrongly ignored and that
the disability should have been treated as 100%.
6. The appeal was admitted and directed to be put in the list of
„regulars‟ as per order dated 16.01.2012. When it is taken up for
hearing, there is no appearance on behalf of the appellant.
7. The matter has been considered with the assistance of learned
counsel for UPSRTC and the learned counsel representing both the
insurance companies and by perusal of the record.
8. The grievance of the appellant about the evaluation of
functional disability is correct. In similarly placed cases of
amputation of one of the lower limbs above knee, this Court has
followed the prescription in the first schedule appended to Employees
Compensation Act, 1923, in one such case decided on 24.08.2017
(MAC Appeal No. 1068/2016 National Insurance Company vs. Preeti
Gupta & Ors.), such condition of the victim being taken as one of
functional disability to the extent of 80%. Since that was also the
medical opinion in the instant case, the calculation should have been
made accordingly.
9. There is, however, no substance in the grievance about the
income. The claim that the appellant was earning Rs. 6,000/- per
month was not substantiated by any cogent material. In these
circumstances, the approach of the tribunal in going by the minimum
wages of a graduate cannot be faulted. Since the functional disability
by the tribunal has taken as 40%, and it is now being treated as 80%,
Rs. 3,20362/- will require to be doubled to grant just compensation
under the head of loss of future income.
10. The mental pain & agony at Rs. 50,000/- only is found to be
inadequate. The said award is increased to Rs. 1,00,000/- and,
consequently, the compensation in the case would stand enhanced by
(3,20,362 + 50,000 ) Rs. 3,70,362/-. It is accordingly increased to
(5,78,610 + 3,70,362) Rs.9,48,972/-, rounded off to Rs. 9,49,000/-
(Nine Lakhs Forty Nine Thousand Only). The enhanced portion of the
award shall carry interest @ 9% per annum from the date of filing of
the petition till payment. The recovery rights granted by the tribunal
shall remain undisturbed.
11. The respective insurance companies are obliged to make the
requisite deposits with the tribunal in favour of the claimant within 30
days.
12. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 24, 2017
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