Delhi High Court
The Oriental Insurance Co. Ltd. vs Suresh Kumar & Ors. on 28 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 28, 2018
+ MAC.APP. 437/2013
THE ORIENTAL INSURANCE CO. LTD.
..... Appellant
Through: Mr A.K.Soni, Advocate.
versus
SURESH KUMAR & ORS.
..... Respondent
Through: Mr M.K.Sinha, Advocate for R-1.
+ MAC.APP. 828/2013
SH SURESH KUMAR
..... Appellant
Through: Mr M.K.Sinha, Advocate.
versus
SH JAIBIR SINGH & ORS ..... Respondents
Through: Mr A.K.Soni, Advocate for
Insurance Company.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned two appeals arise out of impugned Award of
17th December, 2012, vide which the Motor Accident Claims Tribunal
(henceforth referred to as "the Tribunal") has awarded compensation of
`34,95,700/- to a Chowkidar-Suresh, aged 45 years, who was grievously
injured in a vehicular accident which took place on 10th July, 2010. The
Tribunal has granted interest @ 9% per annum on `3,44,100/- while
MAC.APP. 828/2018
excluding interest on future medical expenses.
2. In the above captioned first appeal, Oriental Insurance Company
Limited (henceforth referred to as the "Insurer") seeks exoneration from
paying the compensation awarded by the Tribunal, whereas in the above
captioned second appeal, Injured-Suresh (henceforth referred to as the
„Injured‟) seeks enhancement in the quantum of compensation awarded
by the Tribunal.
3. Since these two appeals 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.
4. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Briefly, the facts are that on 10.07.10, the
petitioner was going to his place of duty from his house
on a scooter bearing no. DL 3S BT 0272 being driven by
respondent no. 1 in a zig zag manner and at a high speed
came from the opposite side and hit his scooter. He fell
down and sustained head injuries. He was taken to
Safdarjung Hospital. A case was registered at the Police
Station Mehrauli vide FIR No. 292/10. The petitioner was
a Chowkidar in MCD and used to get Rs. 13677/- p.m.
After the accident, he could not resume his duty and
became permanent disabled. Respondent no. 2 was the
owner of the motorcycle and it was insured with
respondent no. 3. A Detailed Accident Report was also
filed by the SHO of the police station which was clubbed
with the petition. On the DAR a reply/legal offer of Rs.
50760/- was also filed by the insurance company.
Respondent no. 1 and 2 did not contest the petition."
MAC.APP. 828/2018
5. To render the impugned Award, the Tribunal has relied upon
evidence of wife of the Injured-Suresh, Disability Certificate of 30th
March, 2012 and the other evidence on record. As per the aforesaid
Disability Certificate of 30th March, 2012, the Injured has become 90%
permanently disabled in relation to his whole body and the Tribunal has
assessed his "functional disability" to be 100%, as he is in totally
vegetative state. The Tribunal has considered "loss of income" and
"future income" while taking Injured's net salary of ₹12,507/- per
month and has applied the multiplier of 14. Addition of 30% has been
made by the Tribunal while taking into account the inflation aspect.
6. The breakup of compensation awarded by the Tribunal to the
Injured-Suresh is as under:-
1 Medical expenses `20,000/-
2 Future Medical Expenses `20,000/-
3 Pain & Sufferings & Enjoyment of life `1,00,000/-
4 Special Diet and Conveyance `24,000/-
5 Attendant Charges `4,00,000/-
6 Loss of Income ₹1,00,100/-
7 Loss of Future Income ₹27,31,600/-
8 Loss of Amenities ₹1,00,000/-
Total ₹34,95,700/-
7. The challenge to the impugned Award by learned counsel for
Insurer is on the ground that involvement of insured motor vehicle in the
accident in question does not stand proved. It is submitted that the
Tribunal has erroneously relied upon the evidence of alleged eye-
witness-Manish Kumar (PW-2). It is pointed out that in the claim
petition, it is stated that somebody informed the family of the Injured
MAC.APP. 828/2018
about this accident and then they took the Injured to their home, which
was nearby. So, it is submitted that the presence of the alleged eye-
witness - Manish Kumar (PW-2) at the spot is clearly ruled out. It is
further pointed out that as per the MLC (Ex.PW1/12) of the Injured, his
wife had taken him to Hospital on 28th July, 2010.
8. It is next submitted by counsel for Insurer that the FIR of this case
was registered on the basis of information received regarding this
accident, after 18 days of this accident and even in the FIR, there is no
mention of the Registration Number of the insured vehicle in question. It
is urged that these details came to light after 73 days, on the statement of
some informer. So, it is submitted that the particulars of the insured
vehicle were not disclosed by son of the Injured and mention of the
Registration Number of the insured vehicle in the Charge-sheet in
criminal case, is not sufficient to justify putting the liability on the
Insurer. Thus, it is submitted that since the involvement of insured
vehicle does not stand proved, therefore, Insurer ought to be exonerated
from paying the awarded compensation.
9. On the contrary, learned counsel for the Injured refutes the
aforesaid stand taken on behalf of Insurer and submits that the quantum
of the compensation granted by the Tribunal is inadequate. Enhancement
of compensation is sought by counsel for the Injured on the ground that
the Tribunal has computed the attendant charges on conjectures as no
attendant is available at a paltry salary of `3,500/- per month. So, it is
submitted that the attendant charges ought to be calculated on minimum
wages payable to a skilled worker. It is thus submitted that the special
MAC.APP. 828/2018
diet and conveyance charges granted by the Tribunal are inadequate and
they deserve to be suitably enhanced.
10. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that Manish Kumar (PW-2), in his evidence has
categorically asserted that the accident in question had taken place due to
the negligence of driver of the insured vehicle and there is no cross-
examination of the eye-witness (PW-2) on this aspect. So, the Insurer in
this appeal cannot assert that there was no negligence on the part of driver
of the insured vehicle. Unless a witness is confronted with the FIR, MLC
etc., his/her deposition cannot be discredited. Since the Insurer has failed
to do so, therefore, there is no basis to conclude that the negligence was
not of the driver of the insured vehicle. Whether there is any delay in
registering FIR or not is also aspect on which the eye-witness (PW-2) has
not been confronted. Thus, it cannot be said that involvement of the
insured vehicle does not stand proved. There is no justification
whatsoever to exonerate the Insurer from paying the awarded
compensation.
11. The Injured is not satisfied with the quantum of compensation
granted by the Tribunal to him. The only grievance put-forth on behalf
of the Injured is that the attendant charges granted by the Tribunal are
wholly inadequate. The Tribunal has assessed salary of an attendant at
₹3,500/- per month. This Court is of the considered view that in the
absence of any positive evidence, the salary of an attendant has to be
assessed on minimum wages payable to a semi-skilled worker.
12. Considering the life span of an Injured-Suresh, who is in totally
MAC.APP. 828/2018
vegetative state with 100% functional disability, his life span is taken to
be 14 years, out of which about 8 years have already gone by. The
minimum wages of a semi-skilled worker in the year 2010 were `5,850/-
per month and in the year 2018, minimum wages of a semi-skilled
worker were `11,362/- per month. On an average basis, the salary of a
semi-skilled worker is taken to be `8,606/-. It is nobody's case that the
medical condition of the Injured has substantially deteriorated in the last
eight years and so, the Tribunal has rightly applied the multiplier of 14 to
compute attendant charges. The attendant charges payable are re-assessed
as under:-
`8606/- per month X 12 X 14 = `14,45,808/-
13. It has come in evidence that Injured had been advised bed rest and
rich protein diet. The Tribunal has erred in granting paltry compensation
of `24,000/- under the head "Special Diet & Conveyance" and so, it is
enhanced from `24,000/- to `50,000/-.
14. On scrutiny of the evidence on record, I find that the compensation
granted by the Tribunal to the Injured under other heads is found to be
adequate. Accordingly, the compensation payable to Injured-Suresh is
re-assessed as under:-
1 Medical expenses `20,000/-
2 Future Medical Expenses `20,000/-
3 Pain & Sufferings & Enjoyment of life `1,00,000/-
4 Special Diet and Conveyance `,50,000/-
5 Attendant Charges `14,45,808/-
6 Loss of Income ₹1,00,100/-
7 Loss of Future Income ₹27,31,600/-
8 Loss of Amenities ₹1,00,000/-
Total ₹45,67,508/-
MAC.APP. 828/2018
15. Consequently, the compensation granted to Injured-Suresh by the
Tribunal is enhanced from `34,95,702/- to `45,67,508/-. Insurer is
granted six weeks time to deposit the enhanced compensation with the
Registrar General of this Court. The modified compensation shall carry
interest @ 9% per annum and it be released forthwith to Injured-Suresh
in the manner as indicated in the impugned Award. Statutory deposit, if
any, be refunded to the Insurer.
16. The above captioned two appeals are accordingly disposed of while
modifying impugned Award in aforesaid terms.
(SUNIL GAUR)
JUDGE
SEPTEMBER 28, 2018
SN
MAC.APP. 828/2018
