Delhi High Court
The New India Assurance Co Ltd vs Deepak Arora & Ors. on 28 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 28, 2018
+ MAC.APP. 320/2013
THE NEW INDIA ASSURANCE CO LTD .....Appellant
Through: Mr Pankaj Seth, Advocate.
Versus
DEEPAK ARORA & ORS. .....Respondents
Through: Mr. Kartik Rai, Advocate for
respondents No.2 & 3.
+ MAC.APP. 336/2013
THE NEW INDIA ASSURANCE CO LTD .....Appellant
Through: Mr Pankaj Seth, Advocate.
Versus
PHOOL KUMARI & ORS. .....Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned two appeals arise out of separate Awards of
even date i.e. 11th February, 2013, vide which the Motor Accident Claims
Tribunal (henceforth referred to as the "Tribunal") has awarded
compensation of `7,10,448/- with interest @ 9% p.a. to legal heirs of a
Supervisor-Rajeev, aged 42 years, in a vehicular accident which took
place on 27th October, 2008.
2. In this unfortunate accident in question, a driver-Deepak, aged 25
years, was grievously injured and the Tribunal vide separate Award of
11th February, 2013 has granted compensation of `4,15,674/- with interest
@ 9% p.a. to him, which is under challenge in the above captioned first
appeal.
3. In the above captioned appeals, Insurer assails the impugned
Awards on the ground that quantum of compensation granted by the
Tribunal to Injured-Deepak and legal heirs of deceased-Rajeev is
exorbitant.
4. 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.
5. The factual background of this case, as noticed in the impugned
Award, is as under:-
"On the unfortunate day of 27.10.2008 at about
10.30 AM the petitioner was going to Hissar and driving
the Indica Car No.DL 8CM 5424 from Delhi to Hissar
with his owner and their employee of the Jyoti Associates.
When the petitioner reached at Pipe Factory Cantt Hissar
near Gate No. 3, the offending vehicle truck bearing No.
HR 38C 8523 coming from opposite side and the
offending driver of the offending vehicle tried to overtake
for heading the another vehicle from the opposite side
and in the negligent manner hit the car of the petitioner.
Due to the said accident, the petitioner sustained
grievous injuries. The said accident occurred due to rash
and negligent driving of the respondent No. 1. The FIR
was registered in respect of this accident vide FIR No.
889/08, PS Hissar, Sadar (Haryana), U/s/ 279/338/304A
IPC."
6. To render the impugned Award, the Tribunal has relied upon
evidence of legal heirs of deceased and the Injured as well as other
evidence on record.
7. The Tribunal has assessed income of the Injured on minimum
wages of ₹4,107/- payable to skilled persons and has made addition of
30% towards „future prospects‟ and multiplier of 18 has been applied. As
per Disability Certificate of 30th July, 2011 sent to the Tribunal, the
Injured has suffered permanent disability of 36% in relation to right upper
limb and right lower limb. There is another Disability Certificate of 26 th
May, 2012 (Ex.PX), which reveals that Injured had suffered permanent
disability of 23% in relation to right upper limb. The Tribunal has
assessed the functional disability to be 23% in relation to the whole body.
8. The breakup of compensation awarded by the Tribunal to Injured-
Deepak is as under:-
1 Expenses on medicines etc. ₹65,000/-
2 Loss of Income `16,428/-
3 Loss of future income `2,65,246/-
4 Special diet expenses `7,000/-
5 Conveyance charges `7,000/-
6 Pain, suffering, mental `25,000/-
shock and trauma
7 Loss of amenities etc. `30,000/-
Total ₹4,15,674/-
9. The breakup of compensation awarded by the Tribunal to legal
heirs of deceased-Rajeev Kumar is as under:-
1. Loss of dependency `5,60,448/-
2. Funeral charges `10,000/-
3. Loss of Estate `10,000/-
4. Loss of consortium `10,000/-
5. Loss of love, company and `1,00,000/-
affection etc.
6 Loss of gratuitous services ₹20,000/-
Total ₹7,10,448/-
10. The challenge to the impugned Awards by learned counsel for
Insurer is on the ground that the Tribunal has erred in making addition of
30% towards „future prospects‟ of Injured-Deepak. In support of the
above submissions, reliance is placed upon Supreme Court's decision in
Anant son of Sidheshwar Dukre Vs. Pratap son of Zhamnnappa Lamzane
& Anr. 2018 (10) SCALE 130. It is further submitted that the functional
disability of the Injured ought to be assessed at 12%. Attention of this
Court is drawn to evidence of Dr.P.K.Aggarwal (PW-1) to point out that
the Injured can do all normal work and so, there was no loss of earning
capacity.
11. In case of deceased-Rajeev, it is submitted by Insurer's counsel that
the Tribunal has erred in making addition of 30% towards „future
prospects‟. Attention of this Court is drawn to Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & Ors. (2017) 16 SCC 680 to submit that addition towards
future prospect ought to be 25%. It is next submitted by learned counsel
for the Insurer that the compensation granted by the Tribunal under the
head of "loss of love, company and affection" ought to be disallowed in
the light of decision of Supreme Court's Constitution Bench decision in
Pranay Sethi (Supra). It is also submitted by Insurer's counsel that there
is no basis to grant compensation of ₹20,000/- to legal heirs of deceased
under the head of "loss of gratuitous services". Thus, it is submitted by
learned counsel for the Insurer that the quantum of compensation granted
to legal heirs of the deceased- Rajeev deserves to be suitably reduced.
12. On the other hand, Counsel for Injured-Deepak submits that
compensation awarded by the Tribunal is just and proper and the appeals
are liable to be dismissed. It is evident from order of 3rd October, 2013 in
MAC.APP. 336/2013, that despite service, none had appeared on behalf
of respondent- Claimants.
13. Upon hearing and on perusal of impugned Awards, evidence on
record and the decisions cited, I find that Injured- Deepak was aged 25
years and the Tribunal has rightly assessed his income on the basis of
minimum wages payable to a skilled person. No doubt, a two Judge
Bench of Supreme Court in Anant Son of Sidheshwar Durke (supra)
while dealing with a case of injured, had not considered the aspect of
future prospects but a Three Judge Bench of Supreme Court in a recent
decision of Jagdish v. Mohan and Others, (2018) 4 SCC 571, while
dealing with the case of an Injured, has made addition towards future
prospects of the Injured. In the instant case, in view of Supreme Court's
decision in Jagdish (supra), addition of 40% towards "future prospects"
ought to have been made. However, since no cross-objections have been
filed, therefore, addition of 30% towards "future prospects" of the injured
made by the Tribunal is not being modified.
14. Upon scrutiny of evidence of Dr. P.K.Aggarwal, (PW-1), I find that
it is not clear from his evidence as to what normal work the Injured can
do. Pertinently, the Injured-Deepak is a driver by profession and as per
latter Disability Certificate (EX.PX) of 26th May, 2012, he has permanent
traumatic stiffness of right elbow to the extent of 23%. So, it cannot be
said that there is no loss of earning capacity to Injured - Deepak.
Considering the fact that the injured - Deepak is a driver by profession, I
find that the Tribunal has rightly assessed the functional disability to be
23%. Such a view is taken because Injured- Deepak in his evidence has
categorically asserted that due to the injury sustained in this accident, he
has suffered 100% permanent disability in relation to his right hand and a
steel rod has been inserted in his right leg. Since there is no worthwhile
cross-examination of Injured-Deepak on this aspect, therefore, this Court
is of the considered view that the Tribunal has rightly assessed the
income of the injured as payable to a skilled worker and the functional
disability assessed by the Tribunal at 23% is maintained for want of
cross-objections by the Injured - Deepak.
15. The Tribunal has rightly applied the multiplier of 18 and the loss of
earning capacity of the injured has been correctly assessed at ₹2,65,246/-.
The "loss of income" suffered by Injured-Deepak due to injuries
sustained in this accident is rightly computed at ₹16,428/-. The
compensation granted under the other heads is also found to be adequate.
No case for reduction in the quantum of compensation granted to the
Injured - Deepak is made out. Hence, the compensation awarded to
Injured-Deepak by the Tribunal is maintained.
16. As regards compensation granted to legal heirs of deceased -
Rajeev by the Tribunal is concerned, I find that in view of Supreme
Court's Constitution Bench decision in Pranay Sethi (Supra), addition of
25% towards "future prospects" has to be made and the Tribunal has
erred in making addition of 30% towards "future prospects" of the
deceased. Thus, compensation granted to legal heirs of deceased- Rajeev
under the head "loss of dependency" is accordingly re-assessed as under-
₹3849/- X 12 X 125/100 X 14 X 2/3 = ₹5,38,860/-
17. In view of Supreme Court's decision in Pranay Sethi (Supra),
compensation of ₹1,00,000/- granted by the Tribunal to legal heirs of the
deceased under the head "loss of love, company and affection" is
disallowed. I find that the Tribunal has erred in granting ₹20,000/- to
legal heirs of the deceased under the head of "loss of gratuitous
services", as there is no basis to grant compensation under this head. For
want of cross-objections by legal heirs of the deceased, compensation
granted under „non-pecuniary heads‟ is maintained. Accordingly,
compensation payable to the legal heirs of deceased-Rajeev is re-assessed
as under:-
1. Loss of dependency `5,38,860/-
2. Funeral expenses `10,000/-
3. Loss of Estate `10,000/-
4. Loss of consortium `10,000/-
Total ₹5,68,860/-
18. Consequently, compensation granted by the Tribunal to Injured-
Deepak is maintained. However, compensation awarded to legal heirs of
deceased-Rajeev by the Tribunal is reduced from ₹7,10,448/- to
₹5,68,860/-. The modified compensation shall carry interest at the rate of
9% per annum and it be disbursed to Injured -Deepak and legal heirs of
the deceased-Rajeev forthwith in the ratio as indicated in the impugned
Award. Statutory deposit along with the excess deposit be refunded to
Insurer.
19. While modifying the impugned Awards in the above terms, the
above-captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 28, 2018
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