Delhi High Court
The Oriental Insurance Company ... vs Ganga Saran & Ors. on 1 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 01, 2018
+ MAC.APP. 968/2015
THE ORIENTAL INSURANCE COMPANY
LIMITED .....Appellant
Through: Mr. A. K. Soni, Advocate
Versus
GANGA SARAN & ORS. .....Respondents
Through: Mr. Ghanshyam Thakur, Advocate
For R-1
+ MAC.APP. 808/2018
GANGA SARAN .....Appellant
Through: Mr. Ghanshyam Thakur, Advocate
Versus
THE ORIENTAL INSURANCE COMPANY
LTD & ORS ....Respondents
Through: Mr. A.K. Soni, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 25th August, 2015 grants compensation of
`3,37,493/- with interest @ 9% per annum to Ganga Saran (hereinafter
referred to as the "Injured"), aged 45 years, on account of grievous
MAC.APP. 808/2018
injuries suffered by him in a vehicular accident, which took place on 4th
February, 2009.
2. In the above captioned first appeal, The Oriental Insurance
Company Limited (henceforth referred to as the "Insurer") seeks
recovery rights against driver and owner of Insured vehicle, whereas in
the above captioned second appeal, enhancement of compensation is
sought by the Injured-Ganga Saran.
3. 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. The factual background of this case, as noticed in the
impugned Award, is as under:-
"As per case of petitioner, on 04.02.2009, he was
returning to his house from Jharoda on his motorcycle
having registration number DL 8SNC 2044. He was driving
the said bike with due care and caution by observing traffic
rules. At about 01.00 a.m., when he reached main road,
Pooth Kalan, near Bus stand, all of a sudden a tempo
bearing no. DL ILA 7952 being driven rashly, negligently
and at a very high speed came there and hit his motorbike
with great force. Due to heavy impact, he (petitioner) fell
down on road and suffered injuries, all over his body."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as the "Tribunal") has relied upon evidence of
MAC.APP. 808/2018
Injured-Ganga Saran (PW-1) and as per Disability Certificate
(Ex.PW2/1), the Injured had suffered permanent physical disability of
37% in relation to his right lower limb. On the strength of evidence
recorded, impugned Award has been rendered. The breakup of
compensation awarded by the Tribunal to the Injured is as under :-
1. Medical expenses `50,285/-
2. Loss of income during treatment `47,208/-
3. Special diet `25,000/-
4. Conveyance Charges `15,000/-
5. Pain & Suffering `1,00,000/-
6. Loss of enjoyment of life `1,00,000/-
Total compensation `3,37,493/-
5. Learned counsel for the Insurer assails the impugned Award on the
ground that the Tribunal has erred in not granting recovery rights to the
Insurer against driver and owner of the insured vehicle as driver of the
insured vehicle was not having a valid driving licence on the day of the
accident. To submit so, attention of this Court is drawn to the evidence of
Insurer's witness- Charanjit Singh (R3W2) to point out that this witness
(R3W2) had obtained a Report Ex. R3W2/3 from the concerned licencing
authority regarding the said driving license being valid from 18th
February, 2013 to 17th February, 2016. It is pointed out that the accident
in question had taken place on 4th February, 2009 and on that day, the
driver of the insured vehicle was not possessing valid driving license.
Learned counsel for the Insurer further submits that an opportunity ought
to be granted to the Insurer to get the witness (R3W2) from the concerned
MAC.APP. 808/2018
licensing authority examined, to prove the Report Ex.R3W2/3. Thus, it is
submitted that recovery rights deserve to be granted to Insurer against
driver and owner of the insured vehicle.
6. On the contrary, learned counsel for the Injured-Ganga Saran
refutes the aforesaid stand taken on behalf of Insurer and submits that the
quantum of compensation awarded by the Tribunal is inadequate. It is
submitted that a shopkeeper atleast earns `10,000/- per month and the
Tribunal has erred in assessing the income of the Injured on the basis of
minimum wages payable to an unskilled worker. It is also submitted by
Injured's counsel that no addition towards future prospects has been made
and the cost of deploying the attendant has not been granted by the
Tribunal. It is next submitted that the „loss of earning capacity‟ of the
Injured deserves to be taken into consideration to enhance the
compensation granted by the Tribunal. Thus, it is submitted that the
compensation granted to the Injured by the Tribunal deserves to be
suitably enhanced.
7. Upon hearing and on perusal of impugned Award and evidence on
record, I find that the evidence of Insurer's witness-R3W2 is of
secondary nature. The Report Ex. R3W2/3 obtained from the concerned
licencing authority reveals that the driving license in question was issued
in the year 2002. Although, Report Ex.R3W2/3 reveals that the date of
renewal is from the year 2013 to 2016, but on its basis, it cannot be
concluded that prior thereto, it was not renewed. As such, the application
(C.M. 30529/2015) seeking permission to lead evidence in respect of the
MAC.APP. 808/2018
aforesaid report from the concerned licencing authority is hereby
declined, as there is no justification to permit the Insurer to lead evidence
to prove this Report Ex R3W2/3, as it does not advance the case of
Insurer. Invalidity of a driving license is not to be presumed on
conjunctures. It has to be proved by direct evidence, which is not
forthcoming. Thus, no case is made out for granting recovery rights qua
driver and owner of the insured vehicle to the Insurer.
8. Although, it is the case of Injured-Ganga Saran that he was
running a shop in the name of „Pal General Store‟ on rent, but neither
rent receipt nor any licence issued by the shop establishment is
forthcoming and therefore, the Tribunal has rightly assessed the income
of Injured on minimum wages payable to an unskilled worker.
9. As per the medical report, Injured was aged 45 years on the date of
the accident. The Tribunal has erred in not assessing the „loss of earning
capacity‟ of the Injured, despite the Injured suffering 37% permanent
disability in relation to his right lower limb. Dr. Amreshwar Narayan
(PW-2) has proved the disability certificate of the Injured on record as
Ex. PW2/1. As per the evidence of this witness (PW-2) there is
shortening of right leg of the injured by 1½ inches resulting in imbalance
in walking, difficulty in running, sitting normally and all related
difficulties due to imbalance owing to the disability suffered by the
Injured.
10. In the face of the above referred evidence on record, the Tribunal
has erred in not assessing the functional disability of the Injured. In light
MAC.APP. 808/2018
of the evidence of Dr. Amreshwar Narayan (PW-2), evidence of the
Injured and the disability certificate, I find that the functional disability
suffered by the Injured deserves to be assessed at 20%. While assessing
the income of Injured, addition of 25% towards future prospects is made
in view of Supreme Court's Three Judge Bench decision in Jagdish v.
Mohan and Others, (2018) 4 SCC 571. Accordingly, the „loss of earning
capacity‟ of the Injured is assessed as under :-
`3,934 x 12 x 20/100 x 125/100 x 14 = `1,65,228/-
11. The compensation granted by the Tribunal under the other heads is
found to be just and proper. Thus, the compensation payable to the
Injured is re-assessed as under :-
1. Loss of earning capacity ` 1,65,228/-
2. Medical expenses `50,285/-
3. Loss of income during treatment `47,208/-
4. Special diet ₹25,000/-
5. Conveyance charges ₹15,000/-
6. Pain & suffering `1,00,000/-
7. Loss of enjoyment of life `1,00,000/-
Total compensation `5,02,721/-
12. Consequentially, the compensation awarded by the Tribunal to
Injured-Ganga Saran is enhanced from `3,37,493/- to `5,02,721/-. The
re-assessed compensation shall carry interest @ 9% per annum. The
Insurer is granted six weeks time to deposit the enhanced compensation
with interest @ 9% p.a. and after it is so done, the statutory deposit along
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with excess deposit be refunded to the Insurer. The modified
compensation be released forthwith to Injured- Ganga Saran in the
manner, as indicated in the impugned Award.
13. While modifying the impugned Award to the aforesaid extent, the
above captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 01, 2018
p
MAC.APP. 808/2018
