Delhi High Court
Vineeta vs Pradeep Kumar & Ors (United India ... on 27 July, 2018
$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 27th July, 2018
+ MAC.APP. 463/2018
VINEETA ..... Appellant
Through: Mr.A.K. Soni and Mr.Pavan Kumar
Vashishth, Advocates
versus
PRADEEP KUMAR & ORS (UNITED INDIA INSURANCE
COMPANY LTD) ..... Respondents
Through: Mr.Shoumik Majumdar, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the award of the Claims Tribunal
whereby the compensation of Rs.3,96,314/- has been awarded to the
appellant. The appellant seeks enhancement of award amount.
2. On 07th May, 2006, the appellant was going to Mata Sundri College as
a pillion rider along with her friend, Shabnam on a motor cycle bearing No.
DL-7S AK-4409, driven by Shahid Ahmed Kureshi. When the motor cycle
reached I.T.O. Chowk, Shahid stopped the motor cycle on the red light.
When the light turned green, Shahid started his motor cycle and was
crossing I.T.O. Chowk when he was hit by the offending car which jumped
the red light. The accident resulted in grievous injuries namely, fracture of
the right shaft of femur of the right leg of the appellant. The police registered
FIR No. 229/2006 under Sections 279/337 IPC at P.S. I.P.Estate against the
driver of the car.
3. The appellant was admitted in St. Stephen Hospital from 08th May,
2006 to 11th May, 2006 where she underwent a surgery for illizarov fixator
with iron nails. The appellant was again admitted in St. Stephen Hospital
from 11th September, 2006 to 16th September, 2006 and 26th October, 2006
to 01st November, 2006. The fixator attached to the right leg of the appellant
was removed on 30th July, 2007. The injuries suffered by the appellant
resulted in 58% permanent disability relating to the right lower limb.
4. The appellant was aged 21 years at the time of the accident and was a
student of BA (final year) in Mata Sundri College. The appellant claimed to
be employed in ICICI Bank Limited, Delhi University Branch Delhi at a
basic salary of Rs.4,500/- per month. However, in the absence of any
documentary proof of income, the Claims Tribunal took the minimum wages
of Rs.3,719/- per month of an under-graduate, applied the multiplier of 18 to
compute the loss of earning capacity as Rs.1,60,661/- by taking the loss of
functional disability as 20%. The Claims Tribunal awarded Rs.44,979/- for
treatment expenses, Rs.50,000/- for pain and sufferings, Rs.40,000/- for
conveyance, attendant charges and special diet, Rs.50,000/- for mental and
physical shock, Rs.25,000/- for disfiguration, Rs.50,000/- for loss of
inconvenience/hardship/mental stress, Rs.20,000/- for loss of amenities of
life, Rs.25,000/- loss of marriage prospects and Rs.29,752/- for loss of
income during treatment. The total compensation computed is Rs.4,95,392/-.
The Claims Tribunal held the appellant contributory negligent and deducted
20% towards contributory negligence and net compensation awarded is Rs.
3,96,314/-.
5. The counsel for the appellant urged at the time of hearing that there is
no contributory negligence on the part of the appellant. It is submitted that
non-wearing of helmet has not contributed to the accident and, therefore,
finding of contributory negligence is erroneous. It is further submitted that
the finding of negligence of the driver of the offending vehicle had reached
finality in the earlier award dated 19th May, 2010 and this Court, vide
judgement dated 21st September, 2017 in MAC.APP.642 of 2010, remanded
back the matter only with respect to the computation of compensation.
Learned counsel for the appellant further urged that the Claims Tribunal
assessed the functional disability of 20% which is on a lower side. It is
further submitted that the deceased was a graduate working in ICICI Bank
Limited drawing a salary of Rs.4,500/- at the time of the accident and,
therefore, the minimum wages of a graduate and future prospects should
have been taken into consideration in terms of National Insurance Co.
Limited v. Pranay Sethi, (2017) 16 SCC 680. It is further submitted that the
compensation awarded under the head of pain and suffering, disfiguration
and loss of marriage prospects is on the lower side.
6. The appellant is present in court and her condition has been seen. This
Court is of the view that the functional disability of the appellant taken as
20% is on a lower side. Considering the injuries suffered by the appellant
and 58% permanent disability in relation to her right leg, the functional
disability of the appellant is enhanced to 30%.
7. The Claims Tribunal has taken the minimum wages of an under-
graduate as income for computing loss earning capacity whereas the
appellant was in the final year of her graduation and she completed the
graduation thereafter. This Court is of the view that the income of the
appellant should have been taken as the minimum wages of a graduate i.e.,
Rs.4,031/-per month. The appellant is also entitled to future prospects of
40% in terms of the principles laid down in Pranay Sethi (supra).
8. This Court is of the view that the accident occurred due to the rash
and negligent driving of the offending car driven by respondent No.1. There
is also merit in the contention of the learned counsel of the appellant that the
finding of negligence of the driver of offending vehicle had reached finality
in the earlier award dated 19th May, 2010 and this Court, vide judgement
dated 21st September, 2017 in MAC.APP.642 of 2010, remanded back the
matter only with respect to the computation of compensation. The finding of
contributory negligence of the appellant is therefore, set aside.
9. Taking the income of the appellant as Rs.4,031 /- per month, adding
40% towards future prospects, applying the multiplier of 18 and taking the
functional disability as 30%, the loss of earning capacity is computed as
Rs.3,65,692/-. The compensation awarded under the head of loss of income
during treatment enhanced from Rs.29,752/- to Rs.32,248/-. The
compensation under the head of loss of marriage prospects is enhanced from
Rs.25,000/- to Rs.75,000/-. The compensation awarded under the heads of
disfiguration and loss of amenities of life is on a lower side. The
compensation for loss of amenities of life is enhanced from Rs.20,000/- to
Rs.50,000/-. The compensation for disfiguration is enhanced from
Rs.25,000/- to Rs.75,000/-. The compensation awarded under the other
heads is fair and reasonable and is upheld. The total compensation is
computed as Rs.8,32,919/-.
10. The appeal is allowing and the compensation amount is enhanced
from Rs.3,96,314/- to Rs.8,32,919/- along with interest @ 9% per annum
from the date of filing of the first claim petition i.e., 16th January, 2007 till
realization.
11. United India Insurance Company Ltd. is directed to deposit the
enhanced award amount along with upto date interest within six weeks from
today.
12. The appellant shall remain present in Court on the next date of hearing
along with the original passbook of her savings bank account near the place
of her residence with the necessary endorsement as well as PAN Card and
Aadhaar Card.
13. The concerned bank of appellant is directed not to issue any cheque
book or debit card to appellant and if the same have already been issued, the
bank is directed to cancel the same and make an endorsement on her
passbook to this effect. The appellant shall produce the copy of this
judgement to the concerned bank, whereupon the bank shall make an
endorsement on the passbook of the appellant that no cheque book and/or
debit card shall be issued to the appellant without the permission of this
Court. However, the concerned bank shall permit the appellant to withdraw
money from her savings bank account by means of a withdrawal form.
However, appellant be permitted to withdraw money from her savings bank
account by means of a withdrawal form.
14. List for disbursement on 28th September, 2018.
15. Copy of this judgment be given dasti to counsel for the parties under
the signature of the Court Master.
JULY 27, 2018 J.R.MIDHA, J.
uj
