Delhi High Court
National Insurance Co Ltd vs Anil Kumar & Ors. on 10 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 10, 2018
+ MAC. APP. 369/2017
NATIONAL INSURANCE CO LTD .....Appellant
Through: Mr. Sameer Nandwani, Advocate
Versus
ANIL KUMAR & ORS. .....Respondents
Through: Mr. S.N. Prashar, Advocate
+ MAC. APP. 612/2017
ANIL KUMAR .....Appellant
Through: Mr. S.N. Prashar, Advocate
Versus
MOHD. KAMIL & OTHERS (NATIONAL INSURANCE CO
LTD) .....Respondents
Through: Mr. Sameer Nandwani, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 9th February, 2017 grants compensation of
`8,47,100/- with interest @12% per annum to three wheeler driver-Anil
Kumar, aged 47 years, on account of grievous injuries suffered by him in
a vehicular accident, which took place on 28th October, 2014.
2. In the above captioned first appeal, Insurer seeks exoneration from
paying awarded compensation on the ground that the insured bus was not
having a valid permit. In the above captioned second appeal,
enhancement of compensation is sought by claimants. Since both the
appeals arise out of common award, therefore, with the consent of learned
counsel for the parties, both the appeals have been heard together and are
being decided by this common judgment.
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Briefly the facts of the case are that on 28.10.14 at about
10 o'clock, the petitioner boarded the bus bearing No. UP
8 E 9207 from Gajrola Chopla to Delhi Anand Vihar and
driver of the said bus was driving the bus in a very fast and
uncontrollable speed, in rash and negligent manner,
violating all the traffic rules and due to which the bus
turned down near Shahbazpur Dor and the petitioner
sustained grievous injuries. The petitioner sustained
grievous injuries and his left upper limb on outside was
amputated in Lala Ram M Medical College."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as the "Tribunal") has relied upon evidence of
injured and as per Disability Certificate (Ex. PW1/2), the injured had
suffered permanent disability of 83% in relation to left upper limb. The
breakup of compensation awarded by the Tribunal is as under:-
Attendant charges ₹20,000/-
Future loss of income ₹6,00,535/-
Medical Bills ₹95,901/-
Loss of wages ₹25,664/-
Conveyance and special diet ₹30,000/-
Pain and suffering ₹50,000/-
Loss of Amenities and enjoyment of ₹25,000/-
life
Total ₹8,47,100/-
5. Learned counsel for Insurer assails impugned Award on the ground
that the insurer has no liability to pay the awarded compensation because
the insured vehicle was not having a valid permit.
6. Attention of this Court is drawn to the „Special Temporary Permit'
to point out that this permit was obtained for one day only, to carry the
marriage party etc. and as per the evidence of R3W1, witness from the
concerned licensing authority, the aforesaid permit was issued after 10:15
A.M. on the day of the accident.
7. Attention of this Court is also drawn to the evidence of the Injured
(PW-1) who has deposed that the accident in question had taken place at
about 12.00 noon. It is pointed out that the Injured (PW-1) in his
evidence has also stated that the accident has taken place at about 10:00
A.M. So, it is submitted that the Insurer has no liability to pay the
awarded compensation. It is submitted that since owner and driver of the
insured vehicle has not come forward to contest before the Tribunal or
this Court, despite service of Notice under Order 12, Rule 8 of the CPC,
therefore an adverse inference should be drawn against the owner and
driver of insured vehicle.
8. On the contrary, learned counsel for the Injured refutes the
aforesaid stand taken on behalf of the Insurer and submits that the
quantum of compensation granted by the Tribunal is inadequate and it
needs to be suitably enhanced.
9. It is pointed out that the Tribunal has erred in assessing the income
of the injured on minimum wages payable to an unskilled worker,
whereas the injured was a driver and so, the minimum wages of skilled
worker ought to have been adopted. It is submitted that the Tribunal has
erred in not making any addition towards future prospects.
10. It is further submitted that the Tribunal has also erred in taking the
functional disability at 60% in relation to his whole body, whereas it
ought to have been taken at 100% as the injured is not able to now drive
the three wheeler scooter for his livelihood. It is submitted that the
compensation granted under the head of „Pain and Suffering‟ and other
heads needs to be suitably enhanced.
11. In rebuttal, Insurer's counsel submits that recovery rights have
been wrongly denied to Insurer despite Report of 23rd February, 2011 of
the concerned Licensing Authority regarding driving license in question
being not issued by the said Licensing Authority. Counsel for Insurer
submits that there are two contradictory reports regarding issuance of
driving license by the Licensing Authority concerned and so, in such a
situation, the Tribunal ought to have summoned a witness from the
concerned Licensing Authority to find out that which of the two reports
issued by the same Licensing Authority, is correct. It is submitted by
Insurer's counsel that despite service, owner of the vehicle in question
has not come forward to contest the grant of recovery rights and in view
of Report of 23rd February, 2011 of the concerned Licensing Authority,
recovery rights ought to be granted to Insurer.
12. However, learned counsel for Injured reiterates plea for
enhancement in quantum of compensation granted by submitting that the
functional disability ought to be considered as per the Disability
Certificate, as the injured is confined to bed. It is submitted by counsel
for Injured that in light of Supreme Court's Constitution Bench decision
in National Insurance Company Ltd. Vs. Pranay Sethi & ors. (2017) 16
SCC 680, addition towards „future prospects‟ ought to be 40% and not
30% as awarded by the Tribunal. It is further submitted by counsel for
Injured that the compensation granted under the non-pecuniary heads, is
wholly inadequate, as the Injured has suffered permanent disability of
83% in relation to left upper limb. Thus, while controverting Insurer's
stand as referred above, enhancement of compensation is sought by
counsel for the Injured.
13. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that plying of an Auto Rickshaw
without permit is infraction of law and to avoid the liability to pay
compensation, this defence is available to the Insurer. I find that „Special
Transport Permit‟ is to carry the marriage/reserve party/personal effect.
As per the evidence of R3W1, the said permit was issued after 10:15
A.M. A suggestion was put to the Injured (PW-1) in cross-examination
that the accident in question took place at 12.00 noon and this suggestion
has been accepted by the Injured. Therefore, it cannot be said that the
insured vehicle did not have a valid permit, when the accident took place
and so, the Insurer cannot avoid the liability to pay the awarded
compensation.
14. The Tribunal has erred in assessing income of the Injured on
minimum wages payable to an unskilled worker as the Injured was a
driver by profession and so, the minimum wages of a skilled worker at
the relevant time were ₹10,478/- per month which ought to have been
taken by the Tribunal. As per the Disability Certificate on record, the
disability suffered by the Injured is 83% in relation to left upper limb. In
the considered opinion of this Court, the Tribunal has rightly assessed the
functional disability of the Injured at 60%. However, the Tribunal has
erred in not making any addition towards future prospects. Injured was
aged 25 years on day of the accident and is entitled to minimum wages of
a skilled worker and so, addition of 40% towards future prospects ought
to be made in view of Supreme Court's decision in Pranay Sethi (Supra).
15. The Tribunal has erred in applying the multiplier of 13 as in view
of the Supreme Court's decision in Sarla Verma (Smt.) & Ors. Vs. Delhi
Transport Corporation & Anr. (2009) 6 SCC 121, the applicable
multiplier is of 18. Accordingly, the "loss of future earning capacity" is
re-assessed as under :-
₹10,478/- p.m. X 12 X 18 X 60/100 X 140/100 = ₹19,01,128/-
16. So far as compensation granted by the Tribunal under the non
pecuniary heads is concerned, I find it to be wholly inadequate.
Considering the disability suffered by the Injured, it is deemed
appropriate to enhance the compensation under the head of „pain and
suffering', from ₹50,000/- to ₹1,00,000/-. The compensation granted by
the Tribunal under the head of "loss of amenities of life" is also enhanced
from ₹25,000/- to ₹75,000/-. However, compensation granted by the
Tribunal under the other "non-pecuniary damages" is found to be
adequate.
17. In view of above, the compensation payable to Injured is
reassessed as under: -
Loss of earning capacity ₹19,01,128/-
Pain and sufferings ₹1,00,000/-
Medical Bills ₹95,901/-
Loss of amenities and enjoyment ₹75,000/-
of life
Conveyance and Special diet ₹30,000/-
Loss of wages ₹25,664/-
Attendant charges ₹20,000/-
Total ₹22,47,693/-
18. Consequentially, the compensation awarded stands enhanced from
`8,47,100/- to `22,47,693/-. The enhanced compensation be deposited by
Insurer with the Registrar General of this Court within six weeks from
today. As far as interest granted by the Tribunal is concerned, a Three
Judge Bench of Supreme Court in a recent decision of Jagdish v. Mohan
and Others, (2018) 4 SCC 571 has granted interest @ 9% per annum on
the awarded compensation and so, in the instant case, it is directed that
the re-assessed compensation shall carry interest @ 9% per annum. The
re-assessed compensation be disbursed in the ratio and manner as
indicated in the impugned Award. Statutory deposit, if any, be refunded
to Insurer.
19. With the aforesaid directions, both the appeals are accordingly
disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 10, 2018
p
