Delhi High Court
Anju Mahajan vs Nasir Ali & Ors (New India ... on 5 December, 2019
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 05.12.2019
+ MAC.APP. 155/2018
ANJU MAHAJAN ..... Appellant
Through: Mr. Manish Maini, Advocate.
versus
NASIR ALI & ORS (NEW INDIA ASSURANCE COMPANY LTD)
..... Respondents
Through: Mr. D.D. Singh, Advocate for
insurance company.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. This appeal impugns the award of compensation dated 16.07.2016
passed by the learned MACT in Suit No. 390/2011, inasmuch as: i) it has
erred in computing the compensation towards 'loss of earnings' by
excluding ITRs filed after the accident, and ii) compensation towards 'loss
of future prospects' has not been granted. This issue has been dealt with in
the impugned order as under:-
" Admittedly, no documents have been filed by petitioner
to corroborate the payment of salary by way of cheque, nor any
appointment letter qua her appointment was produced. Also, the
other income generated by the petitioner by computer job work
has not been corroborated by filing of receipts/vouchers. The
Income Tax Returns for the post accident period have not been
filed on record. Neither the husband of the petitioner entered the
witness box to show the documentary proof of the actual
payment of salary to the petitioner by way of cheque or
otherwise. It may also be noticed that the last Return for the
Assessment Year 2007-08 was filed only on 07.12.2007 though
the accident had taken place on 20.06.2007 and only in
aforesaid Return the salary has suddenly increased from
Rs.72,180/- to Rs.1,05,600/- while for the remaining years it has
remained almost static without any increase. In the aforesaid
background since the tax paid is NIL, the possibility cannot be
ruled out that the inflated Income Tax Return for Assessment
Year 2007-08 had been filed to book the expenses in the business
run by the husband of the petitioner and cannot be considered.
Considering the facts and circumstances, I am inclined to take
the income of the petitioner for the purpose of assessment as
average of net income for the last three Assessment Years (i.e.
2004-05, 2005-06 & 2006-07) excluding the Return for the last
Assessment Year i.e. 2007-08,which comes to Rs.89,100/- per
annum."
2. The aforesaid ground is untenable and is accordingly rejected.
3. Insofar as the appellant's earning capacity has been established, she
would be entitled to compensation for 'loss of future prospects' also.
Accordingly, she being 32 years of age at the time of the accident and in
private employment, she is granted an addition of 40% on the loss of
dependency towards 'loss of future prospects'.
4. Relying upon the decisions in DTC vs. Lalit AIR 1981 Delhi 558 and
United India Insurance Co. Ltd. vs. Rama Swamy and Others 2012 (2) TAC
34 (Del), the learned Tribunal held that where a victim of a motor accident
required an attendant to be hired and/or a family member render gratuitous
services, financial assessment of such expense shall be carried out and prior
compensation in this regard would need to be granted. In the present case,
the appellant has suffered 90% permanent disability with respect to her
entire body, her functional disability is assessed as 100% and the expenses
towards provision of an attendant for her life time has been assessed on the
basis of minimum wages applicable to an unskilled worker at the time of the
accident i.e. Rs. 3,470/- per month totalling to Rs. 6,66,240/- [(Rs. 3,470/-
(minimum wages) x 12 (months) x 16 (multiplier)].
5. The Court is of the view that the aforesaid compensation of Rs.
6,66,240/- granted apropos 'future attendant charges' cannot be said to be
'just compensation', because the minimum wages of an unskilled worker
would change over the years. Indeed the motor accident occurred in the year
2007 when the minimum wages for an unskilled worker was Rs. 3,470/-
whereas it was Rs. 9,568/-, later revised to Rs. 9,724/- in 2016, when the
award was passed, i.e. an aggregate of Rs. 9,646/-. Therefore, the
compensation @Rs. 3,470/- i.e. Rs. 41,640/- for the year 2007 could not
meet the expense of an unskilled workman in the year 2016-which would be
about thrice over (Rs. 9,646/-x12=Rs. 1,15,752/-) annually. For award of
compensation to be just, it ought to be realistic and not illusory. Therefore,
the 'attendant charges' for the preceding twelve years shall be computed on
the basis of revised minimum wages applicable to an unskilled worker for
the respective year. The same shall be payable as under:-
Year Minimum Wages Amount
2007 [Rs. 3,470/- + Rs. 3,516/- ÷ 2 x 12] Rs. 41,916/-
2008 [Rs. 3,633/- + Rs. 3,683/- ÷ 2 x 12] Rs.43,896/-
2009 [Rs. 3,934/- + Rs. 3,953/- ÷ 2 x 12] Rs.47,322/-
2010 [Rs. 5,278/-x12] Rs. 63,336/-
2011 [Rs. 6,084/- + Rs. 6,422/- + Rs. 6,656/- Rs. 76,648/-
÷ 3 x 12]
2012 [Rs. 7,020/- + Rs. 7,254/- ÷ 2 x 12] Rs. 85,644/-
2013 [Rs. 7,722/- + Rs. 8,086/- ÷ 2 x 12] Rs. 94,848/-
2014 [Rs. 8,554/- + Rs. 8,632/- ÷ 2 x 12] Rs. 1,03,116/-
2015 [Rs. 9,048/- + Rs. 9,178/- ÷ 2 x 12] Rs. 1,09,356/-
2016 [Rs. 9,568/- + Rs. 9,724/-÷ 2 x 12] Rs. 1,15,752/-
2017 [Rs. 13,584/- + Rs. 13,584/-÷ 2 x 12] Rs. 1,63,008/-
2018 [Rs. 13,896/- + Rs. 14,000/-÷ 2 x 12] Rs. 1,67,376/-
TOTAL Rs. 11,12,218/-
6. The Court would note that since the appellant is now 45 years of age,
therefore, multiplier of 14 ought to be applied while computing 'future
attendant charges'. Accordingly, the amount payable towards the same shall
be as under:
Rs. 14,468/-(minimum wages w.e.f. 01.10.2019) x 12 (months) x 14
(multiplier) = Rs. 24,30,624/-
7. Should the minimum wages for unskilled workman be revised, the
appellant shall be entitled to seek revised realistic compensation, after
exhaustion of the current award for future attendant charges rates as may be
notified.
8. Apropos 'future attendant charges', no arrears shall be paid to the
appellant. The arrears shall be payable on the awarded amount alongwith
interest @9% per annum.
9. The learned counsel for the appellant submits that additional evidence
was allowed to be led for a wheel chair to enable the injured to acquire
skills, so as to rehabilitate herself economically, to the maximum extent
possible. In this regard, statement of Dr. Satish Kumar (MPT), HOD MSS
Hospital, Physiotherapy Department, Pitampura, Delhi reads inter alia as
under:-
"...The progress of the patient depends upon response to
the treatment and it take between 4-6 months to learn these
exercise to practice at home. The patient will not be able to walk
without support even after rehabilitation programme. The
benefit of this treatment programme is to avoid further
deterioration of muscles strength and to keep the same to
maintain them. He goes on to say that the patient can not
recover and walk independently but with the training her muscle
strength may improve. At present she is wheel chair bound. She
can sit with support. Both her upper limbs are normal and
functional and she can do desk work. The muscles are
empowered with external stimulator. The purpose of un-
weighing system as referred in Ex. AW1/1 at point 3, to make
her mobile. The meaning of walker added ambulation as
referred in Ex. AW1/1 at point 4 is to help the patient to walk
with a walker. The purpose of the exercise at point 6 of Ex.
AW1/1 is to provide the patient the muscle strength. The purpose
of these exercise to help her walk but she will not be able to
walk independently. With the exercise as prescribed in Ex.
AW1/1 she can walk with the help of walker and calipars. The
duration of this exercise is 3-4 hours daily except Sundays."
10. The learned counsel for the respondent submits that the expenses
towards treatment would be Rs. 15,000/- per month, for 6 months i.e. a total
of Rs. 90,000/-. That being the unrebutted position, let an amount of Rs.
90,000/- be paid to the claimant for rehabilitation.
11. The appellant has sought the provision of a wheel-chair, which in the
circumstance discussed hereinabove is justified, as she is unable to move
about on her own and she desires to make her life economically
independent, to the maximum possible extent, for which she needs to be
made optimally mobile. In any case, why should a person who has been
rendered 100% functionally disabled and 90% physically disabled be
dependent entirely upon somebody else to shift or even move from the bed
to the window to look at the world outside or walk in her own garden.
Just compensation envisages a comprehensive assessment of the
disadvantage to the injured who has been handicapped on account of the
motor accident. In the circumstances, she shall be provided with a wheel-
chair of her satisfaction, preferably in terms of the clause at page 90 of the
paper book, for Rs. 2,36,250/-. The amount shall be paid to the supplier
directly by the insurance company within two weeks from the date of receipt
of copy of this order. Since the appellant has been permanently disabled, the
provision of such wheel chair shall have a life time warranty and/or its
replacement or upgradation, should the need for the same arise. The insurer
shall provide functional telephone numbers of three responsible officers
alongwith their e-mail address, on which the appellant could intimate about
the non-functioning or otherwise about any defects in the wheel-chair.
Additionally, the insurer shall itself ascertain the condition and usability of
the said wheel chair by the 5th day of January and August and otherwise
rectify any malfunctioning of it within two days of receipt of such
intimation. Should there be any default in this regard, it will be open to the
claimant to move to Court.
12. The additional amount, alongwith interest @9% from the date of
filing of the claim petition till its realization, shall be deposited before the
learned Tribunal, within three weeks from the date of receipt of copy of this
order, to be released to the beneficiary of the Award, in terms of the scheme
of disbursement specified therein.
13. The monies shall be released directly into the bank account of the
appellant, which the learned Tribunal shall ensure is maintained in a bank
near her place of residence. ATM card or cheque book shall not be issued.
Withdrawal shall be made on the basis of withdrawal slip to be issued in her
name directly by the Manager of the bank concerned. Her going to the bank
in the wheel chair would test the functioning of the wheel chair.
14. The learned counsel for the appellant submits that the deduction of
Rs. 5,40,000/- is unwarranted on the alleged ground of the insurance
company that PAN Card of the appellant was not available. The learned
counsel for the appellant submits that the appellant is the income tax
assessee and had filed ITRs for past many years which are to be taken into
consideration in computation of compensation. He submits that the PAN
number is visible from the ITRs itself. Additionally, the copy of the PAN
card is annexed as Ex. PW-1/4. In the aforesaid circumstances, the said
deduction is not warranted.
15. In view of the above the deduction of Rs. 5,40,000/- shall be kept in
abeyance for the insurer to reconsider the same, in view of the aforesaid
PAN number. Should the insurer require any additional documents in this
regard, the appellant undertakes to provide the same within two weeks of
such request being made. It will be open to the insurer to take remedial
measures and issue such certificate and make such refund as may be
appropriate.
16. The appeal stands disposed-off in the above terms.
NAJMI WAZIRI, J
DECEMBER 05, 2019
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