Delhi High Court
Rahul vs Mohd Khalil & Ors. (Iffco Tokio ... on 4 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 04, 2018
+ MAC.APP. 1129/2017
+ MAC.APP. 174/2018
MIRA DEVI & ANR.
RAHUL ..... Appellants
Through: Mr. S.N. Parashar, Advocate
Versus
MOHD KHALIL & ORS. (IFFCO TOKIO GENERAL
INSURANCE CO LTD)
..... Respondents
Through: Mr. Arihant Jain & Ms. Shanta
Devi Raman, Advocates for
respondent No.3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 29th July, 2017 grants compensation of
₹5,10,636/- with interest @ 9% p.a. to legal heirs of deceased-Prateek
Kumar, a Mechanic, aged 17 years and 11 months, on account of fatal
injuries suffered by him in a vehicular accident, which took place on 21st
March, 2014. In this accident, an Executive-Rahul, aged 16 years and 8
months, had also sustained injuries and vide separate Award of even date,
he has been granted compensation of `4,83,896/- with interest @ 9% per
annum.
2. In the above-captioned appeals, the challenge by learned counsel
for Claimants/injured is to impugned Awards on the ground that the
finding of contributory negligence on part of deceased is unwarranted and
that quantum of compensation granted by the Tribunal is inadequate.
Since the impugned Awards arise out of one vehicular accident, therefore,
with the consent of learned counsel for the parties, these 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
Awards, is as under:-
"Brief facts of the case giving rise to the claim Petition
are, that on 21.03.2014, the deceased was driving a
motorcycle along with one Rahul as a pillion rider and when
they reached near Laxmi Niwas Asharam Burari, they were
hit by Truck bearing No. HR-55T-2956 owned by respondent
no 2 and being driven by respondent No1. As a result of the
accident the deceased and the pillion rider fell on the road
and sustained injuries.
The deceased was removed to STC Hospital where he
died during the course of treatment."
4. To render the impugned Awards, the Motor Accident Claims
Tribunal (hereinafter referred to as „the Tribunal‟) has relied upon
evidence of Injured-Rahul and parents of deceased and other evidence on
record. The Tribunal has computed the notional income of deceased, a
minor, at ₹15,000/- per annum and has deducted 1/3rd towards his
„personal expenses‟ and has applied multiplier of 18 to assess the „loss of
estate/dependency‟ at ₹5,10,636/- and has granted the same amount under
the „non-pecuniary heads'. However, after deducting 50% on account of
contributory negligence, the actual compensation granted by the Tribunal
to legal heirs of deceased-Prateek Kumar, is ₹5,10,636/-.
5. In case of Injured-Rahul, the Tribunal has assessed the functional
disability at 100% although the permanent disability suffered by him in
relation to both the lower limbs is 64%. Since Injured-Rahul was minor
on the day of the accident, therefore, his notional income was taken to be
₹15,000/- per annum and after deducting 1/3rd towards his „personal
expenses‟, „loss of earning capacity‟ has been determined at ₹5,10,636/- .
Although Injured-Rahul was a pillion rider, yet 50% deduction on
account of contributory negligence has been made and the compensation
of ₹2,55,318/- has been granted to him. The breakup of compensation
granted to Injured-Rahul by the Tribunal under the „non-pecuniary heads‟
is as under:-
1.) Loss of amenities, loss
of expectation of life &
marriage prospects due
to permanent disability : `1,00,000/-
2.) Pain & Suffering : `1,00,000/-
3.) Medicines & Medical
Treatment : `1,87,156/-
4.) Conveyance Charges : `20,000/-
5.) Special diet : `20,000/-
6.) Attendant charges : `30,000/-
_________
Total : `4,57,156/-
6. However, after deducting 50% on account of contributory
negligence, the compensation actually granted by the Tribunal to Injured-
Rahul is ₹4,83,896/-.
7. The challenge to impugned Award by learned counsel for
Claimants/Injured is on the ground that deduction of 50% on account of
contributory negligence in case of Injured-Rahul is not justified as he was
a pillion rider. It is submitted that Injured-Rahul was a student and was
also working. It is pointed out that even if proof of his income is not
there, still his „loss of earning capacity‟ ought to have been determined
on minimum wages payable to a matriculate. It is further submitted that
quantum of compensation granted to Injured-Rahul under the „non-
pecuniary heads‟ is inadequate and it needs to be substantially enhanced.
8. In case of deceased, it is submitted by learned counsel for
Claimants that this accident was witnessed by Injured-Rahul and as per
evidence of this witness, there was no contributory negligence on the part
of deceased and so, the Tribunal has erred in deducting 50% of the
awarded compensation on account of contributory negligence of
deceased. Reliance is placed by Claimants' counsel upon Supreme
Court's decision in Sudhir Kumar Rana vs. Surinder Singh & Ors. 2008
ACJ 1834 to submit that no contributory negligence is attributable to a
minor for want of driving licence as the negligence has to be determined
on the facts of each case. It is submitted by Claimants' counsel that the
Tribunal has erred in relying upon decision in Chetan Malhotra & Ors.
vs. Lala Ram & Ors. 2016 VIII AD (DELHI) 415 as it was a case of a
student whereas the case in hand, is of a Mechanic and so, minimum
wages of a skilled worker ought to have been applied and the applicable
multiplier was of 18. So, it is submitted by Claimants' counsel that
compensation awarded by the Tribunal to legal heirs of deceased-Prateek
Kumar deserves to be appropriately enhanced.
9. On the contrary, learned counsel for IFFCO TOKIO General
Insurance Company Limited (hereinafter referred to as „Insurer‟)
supports the impugned Awards and submits that the Tribunal has rightly
assessed the compensation and no case for enhancement of compensation
is made out. In support of his submissions, Insurer's counsel has relied
upon Supreme Court's decision in R.K. Malik & Anr. vs. Kiran Pal &
Ors. (2009) 14 SCC 1.
10. Upon hearing and on perusal of impugned Awards, evidence on
record and the decisions cited, I find that the Tribunal has erred in relying
upon decision in Chetan Malhotra (supra) as the said case was of school
going children, whereas in the instant case, deceased and Injured were
working. Since their income is not proved on record, therefore, it has to
be assessed on minimum wages payable to a matriculate as both of them
were matriculates. Reliance placed by Insurer's counsel upon Supreme
Court's decision in R.K. Malik (Supra) is of no avail as the said decision
pertained to school going children. Even if it is taken that deceased and
Injured were engaged in Distance Learning and were working also, still
their income cannot be assessed on notional basis. In the considered
opinion of this Court, the income of deceased and Injured has to be
assessed on minimum wages payable to a matriculate. The minimum
wages payable to a matriculate at the relevant time was ₹9802/- per
month. Since deceased was aged 17 years and 11 months, therefore, the
applicable multiplier is of 18. In view of Supreme Court's Constitution
Bench decision in National Insurance Company Ltd. Vs. Pranay Sethi &
Ors. (2017) 16 SCC 680, addition of 40% has to be made towards „future
prospects‟, whereas addition of ₹30,000/- is made under the „non-
pecuniary heads‟. In view thereof, compensation payable to legal heirs of
deceased-Prateek Kumar is re-assessed as under: -
₹9802/-p.m. X 12 X 18 X 50/100 X 140/100 + ₹30,000/- =₹15,12,062/-
11. As far as deduction of 50% on account of contributory negligence
by the Tribunal is concerned, I find that evidence of eye-witness-Rahul
(PW-1), who was also injured in this accident, is unambiguous regarding
the negligence of insured vehicle in causing the accident in question.
There is no worthwhile cross-examination of this witness (PW-1) on the
aspect of contributory negligence. Otherwise also, driver of insured
vehicle has not come forward to set up a version contrary to the one given
by the Injured. Therefore, the Tribunal was not justified in deducting 50%
on account of contributory negligence. Merely because the deceased was
not possessing a driving licence, would not justify a finding of
contributory negligence. It is so said in view of Supreme Court's decision
in Sudhir Kumar Rana (supra). In view of above, it is held that
negligence in causing the accident in question was of driver of insured
vehicle. Hence, no deduction on this account is called for.
12. The Tribunal has displayed utter non-application of mind while
deducting 50% of compensation on account of contributory negligence on
part of Injured as the Injured was a pillion rider. In any case, no
compensation is required to be deducted on account of contributory
negligence, as this Court has already concluded in preceding paragraph
that negligence in causing the accident in question was of the driver of
insured vehicle.
13. Insofar as compensation granted to Injured-Rahul under the „non-
pecuniary heads‟ is concerned, I find it to be just and fair and as such, it
is maintained. However, I find that „loss of earning capacity‟ has to be
assessed on the basis of minimum wages payable to a matriculate. It is so
said because Injured-Rahul in his evidence has categorically asserted that
he was working as a Field Survey Executive and was earning `12,000/- to
`15,000/- per month. Nothing has been brought out in the cross-
examination of Injured-Rahul (PW-1) to indicate that he is a student and
so, his „loss of earning capacity‟ has to be assessed at minimum wages
payable to a matriculate. Reliance placed by Insurer's counsel upon
Supreme Court's decision in R.K. Malik (supra) is misplaced as the said
decision relates to a case of school going children, whereas the instant
case pertains to an Executive. The Tribunal has also erred in assessing the
functional disability at 100%, as after going through the evidence of
Injured-Rahul, I find that there is no basis to assess the functional
disability at 100%. It ought to be taken at 60% and it is so taken.
14. In light of the aforesaid, the compensation payable to Injured-
Rahul is reassessed as under:-
1. Loss of Earning Capacity `14,82,062/-
2. Medical Expenses `1,87,156/-
3. Conveyance Charges `20,000/-
4. Special Diet `20,000/-
5. Attendant Charges `30,000/-
6. Loss of amenities of life, etc. `1,00,000/-
7. Pain and suffering `1,00,000/-
Total `19,39,218/-
15. Consequentially, the compensation payable to legal heirs of
deceased-Prateek Kumar is enhanced from `5,10,636/- to `15,12,062/-
and the compensation payable to Injured-Rahul is enhanced from
`4,83,896/- to `19,39,218/-. The modified compensation shall carry
interest @ 9% per annum. The enhanced compensation be deposited by
Insurer within six weeks from today and thereafter, it be disbursed to
Claimants/Injured in the manner as indicated in the impugned Awards.
16. With aforesaid directions, the above captioned two appeals are
disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 04, 2018
s
