Delhi High Court
Vibhor Fialok vs Krishan Dev & Anr on 14 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 14, 2018
+ MAC.APP. 976/2017 & CM 40603/2017
U P STATE ROAD TRANSPORT CORPORATION ....Appellant
Through: Mr. Shadab Khan, Advocate for
Ms. Garima Prashad, Advocate
versus
VIBHOR FIALOK & ANR. .....Respondents
Through: Mr. S.N. Parashar and Ms. Pankaj
Kumari, Advocates
+ MAC.APP. 585/2018
VIBHOR FIALOK
..... Appellant
Through: Mr. S.N. Parashar and Ms. Pankaj
Kumari, Advocates
versus
KRISHAN DEV & ANR
..... Respondent
Through: Mr. Shadab Khan, Advocate for
Ms. Garima Prashad, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 8th June, 2017 grants compensation of
`4,24,000/- with interest @ 9% per annum to a private employee-Vibhor,
aged 28 years (hereinafter referred to as Injured) on account of grievous
injuries suffered by him in a vehicular accident, which took place on 4th
August, 2014.
2. In the above captioned first appeal, the Owner of Bus in question,
seeks reduction in quantum of compensation awarded, on the ground that
income of the Injured has been wrongly computed as ₹15,400/- per
month, whereas the income of the Injured ought to be assessed on
minimum wages. In the above captioned second appeal, enhancement of
compensation is sought by the Injured. Since both the appeals arise out of
common impugned 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:-
"Necessary facts in brief leading to filing the
present claim petition are that on August 4, 2014,
petitioner was travelling in U.P. roadways bus bearing
registration No. UP-11T-6261 from Haridwar to Delhi.
The bus was being driven by respondent No. 1 Krishan
Dev and the bus belongs to respondent No. 2. It was
alleged that respondent No. 1 was driving the bus at high
speed in a rash and negligent manner and in zig-zag
manner. Though petitioner and other co-passengers asked
the driver not to drive the bus in such a manner, yet
respondent No. 1 did not give any heed to their request
and continued to drive carelessly, rashly or negligently. It
was alleged that at about 3 AM, when the bus reached
near Khatoli Chowk, Kankad Khera, NH-8 within the
jurisdiction of PS Khankad Khera,District Meerut, UP, all
of sudden, respondent No. 1 lost his control over the bus
and hit in the truck bearing registration No. UP-15-BT-
4962 with great force in its back side. Due to accident,
petitioner sustained grievous injury i.e. open grade III, B/L
femur condoyle with fracture SOF with fracture proximal
fibula with ciley Pest (RT) side and other multiple injuries.
He was taken to Kailash Hospital, Meerut from where he
was shifted to E.S.I Hospital Basaidarapur, Ring Road,
New Delhi where he remained admitted till October 1,
2014. Thereafter, he took medical treatment as outdoor
patient."
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. PW3/A), the Injured had
suffered permanent disability of 48% in relation to right lower limb and
the Tribunal has taken Functional Disability of the Injured at 40%. The
breakup of compensation awarded by the Tribunal is as under:-
NAME OF HEAD AMOUNT
Loss of Income (₹15,400/- X 5) ₹77,000/-
Medical Expenses ₹8,250/-
Conveyance Charges ₹7,000/-
Special Diet(1000 X 9) ₹9,000/-
Attendant Charges (75 X 300) ₹22,500/-
Pain, suffering & Mental Shock ₹1,00,000/-
Loss of disfigurement/disability ₹2,00,000/-
Total ₹4,23,750/-
(rounded of to
₹4,24,000/-)
5. Learned counsel for the Owner of Bus in question, assails
impugned Award on the ground that the computation of the income of the
Injured has been incorrectly made by the Tribunal and that the
compensation under the "non pecuniary heads" is exorbitant and needs
to be suitably reduced. It is also submitted by learned counsel for the
owner that the Disability Certificate has not been issued as per the Second
Schedule to Motor Vehicles Act,1988 and as per the criteria adopted
under the Workmen Compensation Act. So, it is submitted by learned
counsel for the owner of Bus in question that the compensation awarded
by the Tribunal needs to be modified.
6. On the contrary, learned counsel for the Injured refutes the
aforesaid stand taken on behalf of the owner and submits that the
quantum of compensation granted by the Tribunal is inadequate and it
needs to be suitably enhanced.
7. It is submitted by counsel for the Injured that the provisions of
Second Schedule to the Motor Vehicles Act, 1988 are in relation to no
fault liability and fixed compensation is payable under Section 163-A of
the Motor Vehicles Act,1988 and this Schedule cannot be applied to the
cases under Section 166 of the Motor Vehicles Act,1988. Enhancement
of compensation is sought on the ground that the Tribunal has erred in not
making any addition towards "future prospects" and in not awarding
compensation under the head „loss of future earning capacity‟ due to the
disability suffered by the Injured in this accident.
8. It is pointed out that as per Income Tax Returns (ITRs) for the year
2013-14, the taxable income of the Injured was ₹2,33,523/- and for the
subsequent year it was ₹2,67,870/-, so addition of 40% towards "future
prospects" is sought by learned counsel for the Injured.
9. It is submitted that the functional disability of the Injured ought to
be taken as 48% as he faces difficulty in walking and doing the routine
work. It is submitted that the Injured was hospitalized for three months
and so, the compensation under the "non pecuniary heads" ought to be
suitably enhanced.
10. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that reliance placed by learned counsel for the Owner of
Bus in question on the Second Schedule to Motor Vehicles Act, 1988 is
misplaced as Supreme Court has clarified in its Constitution Bench
decision in National Insurance Company Ltd. Vs. Pranay Sethi & ors.,
(2017) 16 SCC 680 that Second Schedule to Motor Vehicles Act, 1988 is
defective. The Tribunal has relied upon the evidence of Injured's
employer to assess the income of the Injured at ₹15,400/- per month
while ignoring the Income Tax Returns filed by the Injured for the
relevant year. The Tribunal has overlooked the evidence of the injured
regarding his earning from his business also. In such a situation, the
Tribunal ought to have relied upon the evidence of PW4-Inspector of the
concerned Income Tax Office who has proved the Income Tax Returns of
the Injured for the relevant period. In the face of the evidence of
aforesaid witness (PW4), the monthly income of the Injured was
₹19,460/- which is made the basis to assess the income of the Injured.
11. The assessment of permanent disability of the Injured is on the
basis of the Disability Certificate (Ex. PW3/A) which has been duly
proved on record by Dr. Lalit (PW3) and as per this Disability
Certificate, the permanent disability suffered by the Injured is 48% in
relation to right lower limb. The evidence of Dr. Lalit (PW3), who proved
the Disability Certificate (Ex. PW3/A), remains unchallenged. In view
thereof, there is no basis to reassess the permanent disability of the
Injured. However, the Tribunal has assessed the Functional Disability of
the Injured while noting that the injured faces difficulty in walking and
doing other routine work. Since the permanent disability of the Injured is
in relation to the right lower limb, therefore, the functional disability
ought to be assessed at 48% and not less. Considering that the injured was
aged 28 years on the day of the accident and was having a fixed income,
addition of 40% towards "future prospects" is to be made in view of
Supreme Court's Constitution Bench decision in Pranay Sethi (Supra). In
view of Supreme Court's decision in Sarla Verma (Smt.) & Ors. Vs.
Delhi Transport Corporation & Anr. (2009) 6 SCC 121 the applicable
multiplier is of 17. Accordingly, the "loss of future earning capacity" is
reassessed as under:-
₹19,460/- X 12 X 48/100 X 17 X 140/100= ₹26,67,732/-
12. As regards the compensation granted under the "non pecuniary
heads", I find adequate compensation has been already granted by the
Tribunal and no case for enhancement of compensation under the "non
pecuniary heads" is made out. The break-up of compensation payable to
Injured is as under:-
Loss of Future Earning Capacity ₹26,67,732/-
Loss of Income during treatment ₹77,000/-
Medical Expenses ₹8,250/-
Conveyance Charges ₹7,000/-
Special Diet ₹9,000/-
Attendant Charges ₹22,500/-
Pain and suffering ₹1,00,000/-
Disfigurement ₹2,00,000/-
Total ₹30,91,482/-
13. Consequentially, the compensation awarded by the Tribunal stands
enhanced from `4,24,000/- to `30,91,482/-. The enhanced compensation
be deposited by the owner of Bus in question with Registrar General of
this Court within six weeks. The enhanced compensation with interest @
9% per annum be released to the Injured forthwith in the manner as
indicated in the impugned Award. Statutory deposit, if any, be refunded
to the Owner of Bus in question.
19. With the aforesaid directions, both the appeals are accordingly
disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 14, 2018
v
