Delhi High Court
Shriram General Insurance Coltd vs Neetu Lodhi & Ors on 20 December, 2019
$~14 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 20.12.2019
+ MAC.APP. 440/2019 & CM APPL. 15926/2019
SHRIRAM GENERAL INSURANCE COLTD ..... Appellant
versus
NEETU LODHI & ORS ..... Respondents
Through:
+ MAC.APP. 901/2019
NEETU LODHI ..... Appellant
versus
SHRIRAM GENERAL INSURANCE CO LTD & ORS
..... Respondents
Through: Mr. Siddharth Yadav, Advocate for
Mr. Arun Yadav, Advocate for
appellant in item 14.
Mr. S.N. Parashar and Mr. B.R.
Sharma, Advocates with respondent
no. 1 in item 14.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
MAC.APP. 440/2019 & CM APPL. 15926/2019
1. This appeal impugns the award of compensation dated 31.10.2018
passed by the learned MACT in Suit No.279/17, on the ground that the
Income Tax Returns, filed after the date of the accident, have been taken
into consideration while computing the compensation payable to the
injured/claimant. The impugned order has dealt with this issue as under:-
"(v) Loss of income : In her affidavit of evidence Ex.
PW1/A, claimant has stated that she is a trained Beautician
She was working as a Salon Service Provider in Delhi and
NCR and she was getting business from Urban Clap Tech.
India. P. Ltd., in accordance with the Minimum Guarantee
Agreement dated 03.08.2015 (Ex. PW1/6) as per which Urban
Clap provide a minimum business of Rs.45,000/- per month
and used to charge 20% commission on business provided by
Urban Clap, She has filed Income Certificate from January,
2016 to January, 2017 from M/s Urban Clap as Ex. PW1/7
showing earnings of Rs.8,02,589/- per annum.
She has claimed that she was earning a profit of
Rs,5,00,000/- per annum after paying 20% commission to
Urban Clap.
To prove her business with Urban Clap, claimant
examined Shri Rupinder Singh, Category Manager, Urban
Clap Technologies India Pvt. Ltd. as PW2 who proved copy of
Minimum Guarantee Agreement effective from August, 2016
for a period of one year as Ex. PW2/2. Perusal of Agreement
Ex. PW2/2 shows that Urban Clap shall provide a minimum
business of Rs.45,000/- per month to the claimant and shall
charge 20% commission on business provided by Urban Clap.
During his cross-examination, PW2 was shown
aforementioned Income Certificate Ex. PW-1/7 to which he
confirmed that the said document was issued from Urban
Clap. He stated that the amount of Rs.8,02,589/- shown in Ex.
PW1/7 includes 20% commission of Urban Clap but the cost
of consumables were borne by the claimant herself.
During her cross-examination, PW1 (claimant) has
admitted that the amount of Rs.8,02,589/- shown in Ex, PW1/7
is not her earnings but was only the booking amount.
In such circumstances, the best document which could
show the earnings of claimant would be her ITR. Even
otherwise, income from all sources should be reflected in ITR
filed by an income tax assessee. ITR of claimant for the
assessment year 2017-18 is filed on record as Ex. PW1/8
which shows her income as Rs.4,04,830/- and tax paid as
Rs.11,980/-. Hence income of claimant is taken as Rs.
3,92,850/- per annum (Rs.4,04,830/- minus Rs.11,980/-).
While answering to Court Question regarding
financial needs, claimant has stated that she is not in a
position to work after the accident. Claimant suffered crush
injuries on both lower limbs in the accident due to which her
both lower limbs above knee were amputated and she suffered
99% permanent physical impairment in relation to her both
lower limbs. She has not been able to even perform day to day
chores, what to speak of working. In view of the nature of
injuries suffered by the claimant, claim of injured that she is
not able to work after the accident seems to be just.
Accident took place on 25.04.2017. She is therefore awarded
a sum of Rs.5,89,275/- towards loss of income from the date of
accident till today (for one year and 6 months)."
2. What emanates from the above is that the claimant was rendering
services as a beautician through a well-based service provider called 'Urban
Clap'. She was earning roughly Rs. 45,000/- per month. This amount was
going directly into her bank account from Urban Clap. The said
agency/company is a modern day service provider, at the convenience of the
customers. It involves some degree of internet based sophistication. It
requires the beautician to visit the customers. The charges for services
provided by Urban Clap would ordinarily not be of lesser amount. The rates,
however, are not specified by the appellant. The aforesaid payments
received by the claimant have not been challenged or doubted in any way.
Therefore, for the learned Tribunal to have passed its assessment on the
basis of ITRs, is with good and justifiable reason. There is no merit in this
contention, hence, it is rejected.
3. The appellant next submits that there is a cost of consumables in the
services rendered by the claimant, as she has admitted in her cross-
examination that the cost of consumables is borne by her. The appellant is
not able to quantify the cost of consumables.
4. The Court would note that consumables in services like threading,
haircut, head or body massage, as well as manicure/pedicure, would not
necessarily incur any expenses as these services entail pure physical labour
and skill. In the circumstance, 5% is fixed towards consumables, to be
deducted from the income of the deceased.
5. The appeal, alongwith pending application, stands disposed-off in the
above terms.
6. Since the appellant-insurance company has succeeded partly in its
appeal, the statutory amount, alongwith interest accrued thereon, be returned
to it.
MAC.APP. 901/2019
7. In the cross-appeal the claimant has sought enhancement of the award
of compensation. She was 33 years of age and in the prime of her life at the
time of the motor accident. She was working with Urban Clap which is a
modern day service provider through internet and was earning Rs. 45,000/-
per month as revenue. With experience and acquired skills and more
clientele, who with familiarity, would prefer her services with the passage of
time, her earnings would have increased. With time, she could well have
increased the fees for her services. But now both her limbs have been
amputated above the knee due to the unfortunate accident. Her mobility has
been restricted almost entirely. The services she was rendering to her
clientele as a beautician, which could be required in any part of the city;
including residents of posh localities would now largely be curtailed due to
her restricted travelling. Even if she were able to reach some clients, they
may well not be as receptive to the personal services from an incapacitated
person. Therefore, her debilitating disability ought to be considered as 100%
functional disability.
8. The Court would note that the claimant would also be entitled to
compensation towards 'loss of future prospects'. In terms of the dicta of the
Supreme Court in Parminder Singh v. New India Assurance Co. Ltd. & Ors
2019 SCC OnLine SC 802, she is entitled to an addition of 50% towards
'future prospects'. The same is granted to her.
9. The learned counsel for the claimant submits that the claimant has
two minor children. Consequently, not only the children but the unfortunate
mother/victim would also be deprived of the little pleasure of building
relations with her children as an able-bodied mother would.
10. The Court would further note that the compensation towards 'mental
and physical shock', 'pain and suffering', 'loss of amenities of life' and
'disfigurement' i.e. Rs.50,000/-, Rs. 50,000/-, Rs.1 lac and Rs. 1 lac,
respectively, is obviously on the lesser side. Accordingly, compensation
under each of the aforementioned heads is enhanced to Rs. 3 lacs, Rs. 3 lacs,
Rs. 4 lacs and 8 lacs, respectively.
11. Thus, the amount payable to the claimants is as under:-
S.No. Particulars Amount
1. Loss of Earning Rs. 1,23,12,000/-
[Rs.45,000/-(monthly income) x 12
(months) x 150/100(future prospects) x
16 (multiplier) x 100% (disability)
Less: 5% deduction (cost of
consumables)
2. Mental and Physical Shock Rs. 3,00,000/-
3. Pain and Suffering Rs. 3,00,000/-
4. Loss of amenities of life Rs. 4,00,000/-
5. Disfigurement Rs. 4,00,000/-
TOTAL Rs.1,37,12,000/-
12. Let the aforesaid amount alongwith interest accrued thereon @9%
from the date of filing of the DAR till its realization be deposited before the
learned Tribunal, within three weeks from the date of receipt of copy of this
order, to be released to the beneficiaries of the Award in terms of the scheme
of disbursement specified therein. Upon deposit of the requisite amount, Rs.
5 lacs shall be released right away into the bank account of the injured
maintained near her place of residence. The remaining amount shall be kept
in an interest bearing FDR for the benefit of the claimant. She may consider
putting at least half of the aforesaid amount in equal quantum for the benefit
of her two minor children.
13. The injured-claimant is present in the Court; she is on a wheelchair.
She is evidently unable to move about without assistance, she is unable to
move the wheelchair with ease. She is not able to get up from the
wheelchair despite the fitment of the prosthetic limbs. Her inability to
perambulate or to stand on her legs is obviously going to affect her daily life
and severely restrain her efforts to rehabilitate herself. Her inability to take
care of her minor children fully will haunt her for her entire life. This
restricted movement needs to be alleviated to the maximum extent possible.
14. The Court would note that the wheelchair of the injured-claimant is of
the most rudimentary variety, she needs to be given a better wheelchair. Let
a motorized wheelchair be made available to her within two weeks from the
date of receipt of copy of this order. The suitability and comfort of the
wheelchair shall be as per the assessment of the injured-claimant. The
insurer shall pay the supplier of the wheelchair, the cost of the purchase of
the same on the basis of an advance invoice.
15. The Court has been informed that the wheelchair would be in the
range of Rs. 1,60,000/-. The same shall carry a lifetime warranty; should the
wheelchair need to be repaired or replaced, the same shall be done entirely
at the cost of the insurer. Furthermore, the insurer shall furnish three
telephone numbers of its senior officers who shall immediately attend to her
complaints apropos any problem in the functioning of the said contraption.
Additionally, the insurer shall, by the 5th day of January and August each
year, on its own, assess the functioning of the said wheelchair and in case of
any difficulty faced by the injured-claimant, the insurer shall promptly cure
such defects to obviate any difficulty to the injured-claimant.
16. The appeal stands disposed-off in the above terms.
NAJMI WAZIRI, J
DECEMBER 20, 2019
RW/AB
