Delhi High Court
Gurdev Singh vs Ramshray Yadav & Ors (M/S Reliance ... on 27 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 27, 2018
+ MAC.APP. 33/2018
RELIANCE GENERAL INSURANCE CO LTD. ..... Appellant
Through: Mr.A.K.Soni, Advocate
Versus
GURDEV SINGH & ORS. ....Respondents
Through: Mr. R.K.Nain, Advocate
+ MAC.APP. 311/2018
GURDEV SINGH ..... Appellant
Through: Mr. R.K.Nain, Advocate
Versus
RAMSHRAY YADAV & ORS (M/s RELIANCE GENERAL
INSURANCE CO ) .....Respondents
Through: Mr.A.K.Soni, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 24th November, 2017 grants compensation of
`12,72,000/- with interest @9% per annum to Gurdev Singh (hereinafter
referred to as the "Injured"), aged 37 years, on account of grievous
injuries suffered by him in a vehicular accident, which took place on 13th
August, 2009.
2. In the above captioned first appeal, M/s Reliance General
Insurance Company (henceforth referred to as the "Insurer") seeks
reduction in the quantum of compensation awarded, whereas in the above
MAC.APP. 311/2018
captioned second appeal, enhancement of compensation is sought by
Injured-Gurdev Singh.
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:-
"That, the brief material facts to decide this claim
petition are that on dated 13.08.2009, Sh. Gurdev Singh,
petitioner/injured was driving vehicle bearing no. HR-38K-0063
and he was taking it from Tinsukhia to Delhi having goods
loaded in it and when reached under the territory of police
station Khalilabad, it was around 5:00 or 06:00 a.m., one
Canter bearing no. UP-52F-2603-EICHER-Canter came from
the opposite direction while being driven by its driver rashly and
negligently and hit the vehicle of the petitioner/injured and he
sustained multiple grievous injuries and because of this reason,
the present petition for compensation has been filed."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as the "Tribunal") has relied upon evidence of
Injured-Gurdev Singh (PW-1) and as per Disability Certificate, the
Injured had suffered permanent disability of 30% in relation to visual
disability in his left eye. 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 `2,81,603/-
MAC.APP. 311/2018
2. Loss of income `52,524/-
3. Pain and suffering `50,000/-
4. Conveyance and Special diet etc. `25000/-
+`25000/-
= `50,000/-
5. Loss of Amenities of life `50,000/-
6. Just compensation on account of `7,87,860/-
disability
Total `12,71,987/-
(which is
rounded off to
`12,72,000/-)
5. Learned counsel for Insurer assails impugned Award on the ground
that the Tribunal has erroneously assessed the "functional disability" of
the Injured at 100% and has not considered the actual disability suffered.
It is submitted that the "functional disability" ought to be assessed at
30%. It is further submitted that the compensation granted under the
heads of „loss of amenities of life" and "pain and suffering" is exorbitant
and it needs to be reduced. It is further submitted that the Tribunal has
erred in taking the age of Injured as 37 years on the basis of Aadhar
Card, which is not duly proved on record. It is further submitted that as
per Voter's Election Identity Card, the age of Injured on the day of
accident was 47 years and so, multiplier of 13 and not 15 has to be
applied. Thus, it is submitted by learned counsel for Insurer that the
compensation granted by the Tribunal to the Injured needs to be suitably
reduced.
6. On the other hand, enhancement of compensation is sought by
learned counsel for Injured-Gurdev Singh on the ground that the Tribunal
MAC.APP. 311/2018
has erred in taking the minimum wages of a skilled worker while
assessing the income of Injured. It is pointed out that evidence of Injured
regarding earning `10,000/- per month on the day of accident ought to
have been accepted by the Tribunal, as there is no worthwhile challenge
to it in the cross-examination. Reliance is placed upon Section 26 of
Motor Transporters Workers Act, 1961, to submit that extra wages
payable for over time is double the wages normally payable to the
drivers. Attention of this Court is drawn to the impugned Award to point
out that the Injured was driving the insured vehicle from Tinsukhia to
Delhi and so, the Injured is entitled to extra wages for over time. Lastly, it
is submitted that the "loss of earning capacity" of Injured ought to be re-
assessed while taking the income of Injured to be `10,000/- and
compensation under the non-pecuniary heads is wholly inadequate and
so, the compensation granted by the Tribunal ought to be substantially
enhanced. Nothing else is urged by either side.
7. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that the Tribunal has erred in assessing the "functional
disability" of the Injured at 100%. Supreme Court in Raj Kumar Vs. Ajay
Kumar & Anr. (2011) 1 SCC 343 and Mohan Soni Vs. Ram Avtar Tomar
& Ors. (2012) 2 SCC 267 has reiterated that the effect and impact of such
permanent disability has to be assessed and the "functional disability"
ought not be assessed mechanically. In the facts and circumstances of this
case, I find that the "functional disability" of the Injured was not more
than 30%.
MAC.APP. 311/2018
8. So far as assessment of "loss of earning capacity" is concerned, I
find that on earning capacity of Injured, there is no worthwhile challenge
to Injured's assertion that he was earning `10,000/- per month. On
perusal of Injured's Voter Identity Card, I find that on 1 st January, 2005,
he was aged 42 years. The Aadhar Card relied upon by the Tribunal was
prepared subsequently and Birth Certificate of the Injured was also
obtained later on. So, to assess the age of Injured, the Tribunal ought to
have relied upon Injured's Voter's Identity Card, according to which the
age of Injured was 47 years on the day of accident and so, the applicable
multiplier of 13 ought to be applied and not 15, as applied by the
Tribunal. Accordingly, the "loss of earning capacity" of Injured is re-
assessed as under:-
`10,000/- X 12 X 13 X 30/100 = `4,68,000/-
9. As regards compensation of `50,000/-granted under the head of
"pain and suffering" by the Tribunal is concerned, I find it to be
inadequate and is therefore increase it to `75,000/-. Similarly,
compensation of `50,000/-granted under the head of "loss of amenities of
life" awarded by the Tribunal is also found to be inadequate and is also
increased to `75,000/-. The Tribunal has noted in the impugned Award
that Injured had sustained grievous injuries and must have taken
treatment for one year and has accordingly assessed his "loss of income"
while taking his income as of a skilled worker. In view of finding
returned by this Court in preceding paragraph and while taking income of
Injured @`10,000/- per month, compensation granted to Injured under
the head of "loss of income" is re-assessed as under :-
MAC.APP. 311/2018
`10,000/- per month X 12 = `1,20,000/-
10. Compensation awarded by the Tribunal under the other heads is
found to be adequate. Accordingly, the compensation payable to Injured-
Gurdev Singh is re-assessed as under:-
1. Medical Expenses `2,81,603/-
2. Loss of income `1,20,000/-
3. Pain and suffering `75,000/-
4. Conveyance and special diet `50,000/-
5. Loss of Amenities of life `75,000/-
6. Loss of earning capacity `4,68,000/-
Total `10,69,603/-
11. Consequentially, the compensation awarded by the Tribunal to
Injured-Gurdev Singh stands reduced from `12,72,000/- to `10,69,603/-.
The modified compensation shall carry interest @ 9% per annum and it
be released forthwith to Injured-Gurdev Singh in the manner, as indicated
in the impugned Award. Statutory deposit alongwith excess deposit, be
refunded to the Insurer.
12. With aforesaid modification in the impugned Award, the above
captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 27, 2018
r
MAC.APP. 311/2018
