Delhi High Court
The New India Assurance Co.Ltd. vs Yashpal @ Kallu & Ors. on 8 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 08, 2018
+ MAC.APP. 114/2013
THE NEW INDIA ASSURANCE CO.LTD. ..... Appellant
Through: Mr. J.P.N Shahi, Advocate
Versus
YASHPAL @ KALLU & ORS. .....Respondents
Through: Mr. Nishant Shaiva, Advocate for
respondent No.1
+ MAC.APP. 839/2018
YASHPAL @ KALLU ..... Appellant
Through: Mr. Yash Pal Sapra, Advocate
Versus
THE NEW INDIA INSURANCE CO LTD ..... Respondent
Through: Mr. J.P.N Shahi, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 30th November, 2012 grants compensation of
`15,33,872/- with interest @9% per annum to a Milk Vendor-Yashpal
(hereinafter referred to as the "Injured"), aged 24 years, on account of
grievous injuries suffered by him in a vehicular accident, which took
place on 16th August, 2012.
MAC.APP. 839/2018
2. In the above captioned first appeal, The New India Assurance
Company Limited (henceforth referred to as the "Insurer") seeks
reduction in the quantum of compensation awarded, whereas in the above
captioned second appeal, enhancement of compensation is sought by
Injured- Yashpal.
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:-
"Petitioner‟s case is that on the day of accident
he was travelling on Scooter driven by his friend but on
reaching Shiv Mandir Pulia, Wazirabad Pull, Timar
Pur, Delhi was hit from driver‟s side by vehicle no. UP
17T 4179 (offending vehicle) driven by respondent no.1
in rash and negligent manner causing grievous
injuries. Petitioner was taken to hospital where FIR
was lodged and MLC was prepared."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as the "Tribunal") has relied upon evidence of
Injured-Yashpal (PW-1) and as per Disability Certificate (Ex.PW1/4), the
Injured had suffered permanent disability of 75% in relation to his left
lower limb. On the strength of evidence recorded, impugned Award has
been rendered. The breakup of compensation awarded by Tribunal to the
Injured-Yashpal is as under:-
MAC.APP. 839/2018
1. Medical Expenses `3,100/-
2. Special diet and conveyance `12,000/-
3. Attendant charges `12,000/-
4. Expenses for artificial limb `2,52,204/-
5. Loss of income `19,968/-
6. Loss of future income `9,34,600/-
7. Pain and suffering, loss of `3,00,000/-
amenities of life & loss of
expectation of life (composite
compensation)
Total `15,33,872/-
5. Learned counsel for Insurer assails impugned Award on the ground
that compensation of `3,00,000/- granted under the heads of „pain and
suffering, loss of amenities of life and loss of expectation of life" is
exorbitant and it needs to be reduced to `1,50,000/-. It is further
submitted by counsel for Insurer that Insurer is not bound to pay interest
on the cost of artificial limb. Hence, reduction in the quantum of
compensation awarded by the Tribunal is sought by Insurer.
6. On the other hand, learned counsel for Injured-Yashpal refutes the
aforesaid stand taken on behalf of Insurer and submits that the
compensation granted by the Tribunal is inadequate. It is submitted that
keeping in view the nature of work of Injured, his "functional disability"
ought to be assessed at 75%. It is next submitted that the minimum wages
payable to a skilled workman ought to be the basis to assess the "loss of
income", as the Injured was possessing license for commercial vehicle. It
is pointed out that the Injured used to sell milk while riding the motor
MAC.APP. 839/2018
cycle, which he is unable to drive after suffering the injuries in this
accident. Lastly, reliance is placed upon decision of this Court of 4th July,
2018 in MAC.APP.861/2017, Ankit Kumar Vs. The United India
Insurance Company Limited & Ors. to seek lump-sum compensation of
`4,00,000/- on account of injuries suffered by Injured. So, it is submitted
that compensation granted by the Tribunal deserves to be appropriately
enhanced.
7. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that Injured in his evidence has not
claimed that for the purpose of selling milk, he used to ride the motor
cycle. There is no reference by the Injured with regard to his driving
license in his evidence. So, I find that the Tribunal has rightly taken the
minimum wages payable to an unskilled workman while assessing the
income of Injured- Yashpal and therefore, his "loss of income" has been
rightly assessed at `19,968/-.
8. As regards "loss of future income" of Injured-Yashpal, I find that
the Tribunal has rightly assessed his "functional disability" at 50%,
because Injured is unable to ride motor cycle due to amputation of his left
leg below the knee. No case for assessing the "functional disability" of
Injured-Yashpal more than or less than 50% is made out in the instant
case. Reliance placed upon decision in Ankit Kumar (Supra), is
misplaced, as in the said decision lump-sum compensation of `4,00,000/-
was granted in the case of a minor while relying upon Supreme Court's
decision in Master Malikarjun Vs. Divisional Manager, The National
Insurance Company Ltd & Anr. AIR 2014 SC 736.
MAC.APP. 839/2018
9. So far as addition towards "future prospects" is concerned, I find
that Tribunal has erred in making addition of 30% towards "future
prospects". 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
applied multiplier of 18. Accordingly, the "loss of earning capacity" of
Injured is re-assessed as under:-
`6,656/- x 12 x 140/100 x 50/100 x 18 = `10,06,387.20/-
(rounded off to `10,06,388/-)
10. With regard to plea of Insurer seeking exoneration from paying the
interest component under the head of "expenses for artificial limb", I find
that Injured could have obtained artificial limb only after he had received
compensation from the Tribunal and therefore, payment of interest on the
compensation awarded under the head of "expenses for artificial limb"
by the Tribunal is justified. Compensation granted by the Tribunal under
the head of "pain and suffering, loss of amenities of life and loss of
expectation of life" and other heads is found to be adequate and does not
call for any alteration.
11. In view of aforesaid, the compensation payable to Injured-Yashpal
is reassessed as under:-
1. Medical Expenses `3,100/-
2. Special diet and conveyance `12,000/-
3. Attendant charges `12,000/-
4. Expenses for artificial limb `2,52,204/-
5. Loss of income `19,968/-
MAC.APP. 839/2018
6. Loss of future income `10,06,388/-
7. Pain and suffering, loss of amenities `3,00,000/-
of life & loss of expectation of life
(composite compensation)
Total `16,05,660/-
12. Consequentially, the compensation amount payable to Injured-
Yashpal stands enhanced from `15,33,872/- to `16,05,660/-. The
modified compensation shall carry interest @ 9% per annum. Six weeks'
time is granted to Insurer to deposit the enhanced compensation with
UCO Bank, Delhi High Court Branch, New Delhi. The Registrar General
shall ensure that the modified compensation is disbursed forthwith to
Injured-Yashpal in the manner already indicated in the impugned Award.
13. While modifying the impugned Award in aforesaid terms, the
above captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 08, 2018
r
MAC.APP. 839/2018
