Delhi High Court
Paradeep Kumar Mittal vs Dinesh Kumar & Ors. on 5 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 05, 2018
+ MAC.APP. 322/2013
PARADEEP KUMAR MITTAL ..... Appellant
Through: Mr. O.P.Maini, Advocate
Versus
DINESH KUMAR & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 21st February, 2013 grants compensation of
`1,42,297/- with interest @ 7.5 % per annum to appellant- Pradeep
Kumar Mittal (hereinafter referred to as „Injured‟), aged 32 years, who
was engaged in the business of Tent and Decorators, had suffered
grievous injuries in a vehicular accident, which took place on 8th
February, 2010. The facts, as noticed in the impugned Award, are as
under:-
"Brief facts arising out of this case are that on
08.02.2010 at about 11 p.m. petitioner/injured was going
towards his residence on his motorcycle bearing no.DL-7SX-
8955 and when he reached at Vikas Marg, Preet Vihar, Red
Light Point, PS Preet Vihar, Delhi in the meantime a car
make Tavra bearing no. UP-14AT-1670 which was being
driven by R-1 in a rash and negligent manner reached there
and hit the petitioner, due to which he fell down and received
grievous injuries. He was immediately taken to LBS hospital.
He remained admitted there from 8.2.10 to 11.2.10."
2. To render the impugned Award, learned Motor Accident Claims
Tribunal (henceforth referred to as "the Tribunal") has relied upon
evidence of Injured- Pradeep Kumar Mittal and other evidence on record.
The Tribunal has noted in the impugned Award that Injured- Pradeep
Kumar Mittal had suffered 9% permanent disability in relation to right
lower limb and has assessed the functional disability to be 5%. The
Tribunal has assessed the income of Injured-Pradeep Kumar Mittal on
minimum wages payable to an unskilled worker and multiplier of 16 has
been applied and after making addition of 30% towards "future
prospects", future loss of income of Injured- Pradeep Kumar Mittal has
been assessed at `65,865/-. The breakup of compensation awarded by the
Tribunal to the Injured is as under:-
1. Towards medical expenses `5,598/-
2. Towards three months salary `15,834/-
3. Towards future loss of income `65,865/-
4. Towards better diet `10,000/-
5. Towards conveyance `10,000/-
6. Towards attendant `10,000/-
7. Towards pain and suffering `25,000/-
Total `1,42,297/-
3. In this appeal, enhancement in the quantum of compensation
awarded by the Tribunal is sought by Injured- Pradeep Kumar Mittal on
the ground that the compensation granted is inadequate. It is submitted by
counsel for Injured- Pradeep Kumar Mittal that the Tribunal has erred in
assessing income of Injured-Pradeep Kumar Mittal on minimum wages
payable to an unskilled worker, whereas minimum wages payable to a
skilled worker on the day of accident ought to have been considered
while assessing the "loss of earning capacity". It is next submitted that
compensation under the head "loss of amenities of life" ought to be
granted and the Tribunal has erred in not granting it and that the
compensation granted under the "non-pecuniary heads" is inadequate
and it be suitably enhanced. Lastly, it is submitted that finding of
contributory negligence returned by the Tribunal and of putting liability
of 30% upon Injured is unjustified and it needs to be set aside.
4. On the contrary, learned counsel for Insurer supports the impugned
Award and submits that the compensation awarded is just and fair and
this appeal deserves dismissal.
5. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that a Tent Decorator cannot be considered as an
unskilled workman and so, minimum wages payable to a skilled worker
ought to be applied while assessing his "loss of earning capacity". On
the day of accident, minimum wages payable to a skilled worker were
`6,448/- per month. While taking the income of Injured `6,448/- per
month, compensation under the "loss of income" is re-assessed as under:-
`6,448/- x 3 = `19,344/-
6. In view of Supreme Court's Three Judge Bench decision in
Jagdish v. Mohan and Others, (2018) 4 SCC 571, addition of 40%
towards "future prospects" has to be made. The Tribunal has rightly
assessed the "functional disability" of Injured at 5% and has also rightly
applied multiplier of 16. Accordingly, the "loss of earning capacity" of
Injured is re-assessed as under:-
`6,448/- x 12 x 140/100 x 5/100 x 16 = `86,661.12/-
(rounded of to `86,662/-)
7. So far as compensation granted under the „non-pecuniary heads‟ is
concerned, I find that inadequate compensation under these heads has
been granted by the Tribunal. In the facts and circumstances of this case,
compensation granted under the head "pain and suffering" is increased
from `25,000/- to `40,000/-. The "conveyance" and "attendant" charges
are also increased from `10,000/- to `20,000/- each. The Tribunal has
erred in not granting compensation under the head "loss of amenities of
life". Injured- Pradeep Kumar Mittal is granted compensation of
`20,000/- under head "loss of amenities of life". Compensation awarded
under the other heads is found to be just and reasonable.
8. Consequently, the compensation payable to Injured-Pradeep
Kumar Mittal is re-assessed as under:-
1. Medical expenses `5,598/-
2. Loss of income `19,344/-
3. Loss of earning capacity `86,662/-
4. Diet `10,000/-
5. Conveyance `20,000/-
6. Attendant charges `20,000/-
7. Pain and suffering `40,000/-
8. Loss of amenities of life `20,000/-
Total `2,21,604/-
9. On the aspect of contributory negligence, the Tribunal has assessed
30% contributory negligence of Injured, as he was driving the motorcycle
under the influence of liquor and without valid driving license. A Three
Judge Bench of Supreme Court in Dinesh Kumar Vs. National Insurance
Company Limited (2018) 1 SCC 750 has reiterated that even if a driver is
driving without license, it would not justify attribution of contributory
negligence to him, because it has to be seen as to whether the accident
had occurred for any fault of the said driver. In the instant case, I do not
find that the accident in question had taken place due to negligence of
Injured-Pradeep Kumar Mittal because of his being under the influence
of liquor or because he was driving the motor cycle without holding
driving license. Therefore, the Tribunal was not justified in attributing
30% contributory negligence to the Injured.
10. In view of aforesaid, impugned Award is modified to the extent
that the entire modified compensation shall be payable by the Insurer and
no apportionment is to be made, as I find that there was no contributory
negligence on the part of Injured-Pradeep Kumar Mittal in causing this
accident.
11. Consequentially, the compensation awarded by the Tribunal to
Injured-Pradeep Kumar Mittal stands enhanced from `1,42,297/- to
`2,21,604/-. In view of Supreme Court's Three Judge Bench decision in
Jagdish (Supra), the modified compensation shall carry interest @ 9%
per annum. Six weeks' time is granted to Insurer to deposit the modified
compensation with the Tribunal concerned and it be disbursed forthwith
to Injured in the manner already indicated in the impugned Award.
12. While modifying the impugned Award in aforesaid terms, the
above captioned appeal is accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 05, 2018
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