Delhi High Court
Future Generali India Insurance ... vs Archit Sadh & Anr on 16 January, 2020
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 16.01.2020
+ MAC.APP. 610/2017
FUTURE GENERALI INDIA INSURANCE CO LTD ..... Appellant
Through: Mr. Amit Kumar Maihan, Adv.
versus
ARCHIT SADH & ANR ..... Respondents
Through: Mr. Ravi Sabharwal, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
MAC.APP. 610/2017 & CM No. 25160/2017
1. The appellant impugns the award of compensation dated 06.05.2017
passed by the learned Tribunal in MACP No. 120/2016 on the ground that
the salary of the claimant was not proven. The learned counsel for the
appellant submits that if the claimant was paid Rs. 23,000/- per month, then
there ought to be some record of the same, like transfer via banking
transactions, but no such evidence was produced.
2. In his testimony, PW1-Sh. R.S. Yadav, Manager (P&A), HR
Department, Rakam Exports, D-63, Noida, Uttar Pradesh, had stated as
under:
"...I have brought the summoned record pertaining to Sh.
Archit who was working in our organization on the post of
Maintenance Executive w.e.f. 02.06.2014 till his accident on
17.05.2015. He was being paid salary of Rs. 23,000/- per
month. He was paid last salary for the month of May, 2015.
The job of Sh. Archit was field job. After his accident on
17.05.2015 he never joined his services with our organization
due to the injuries sustained in the accident.
The services of Sh. Archit was confirmed vide letter dated
01.12.2016. Initially his salary was Rs. 20,000/- and the
same was revised w.e.f. 01.01.2015 to Rs. 23,000/- per
month. Authority Letter in my favour is Ex. PW1/1, which
bears the signature of Sh. Avinash Sadh who is the proprietor
of our firm. Attested copy of Factory License is Ex. PW1/2.
Appointment Letter is Ex. PW1/3 (OSR). Confirmation
Letter is Ex. PW1/4. Letter dated 15.12.2014 whereby the
salary of Sh. Archit was revised is Ex. PW1/5. The copy of
Salary Transfer Letter for the month of January, 2015 is Ex.
PW1/6 (colly.) pages. Attested copy of Wages Payment
Register for the month of January, 2015 is Ex. PW1/7 (colly.)
6 pages wherein the name of Sh. Archit is mentioned at Sr.
No. 56. The attested copy of Attendance Register (Form No.
12) for the month of January, 2015 is Ex. PW1/8 wherein the
name of Sh. Archit is mentioned at Sr. No. 11 (OSR).
The copy of Salary Transfer Letter for the period w.e.f.
February, 2015 to May, 2015 is Ex.PW1/9 (colly.) 16 pages.
Attested copy of Wages Payment Register for the period w.e.f.
February, 2015 to May, 2015 is ex. PW1/10 (colly.) 24 pages.
The attested copy of Attendance Register (Form No. 12) for
the period w.e.f. February, 2015 to May, 2015 is ex. PW1/11
(colly) 4 pages (OSR).
The Copy of Salary Transfer Letter for the month of June,
2015 is Ex. PW1/12 (colly.) 4 pages. Attested copy of Wages
Payment Register for the period w.e.f. June, 2015 is Ex.
PW1/13 (colly.) 7 pages. The attested copy of Attendance
Register (Form No. 12) for the month of June, 2015 Ex.
PW1/14.
The Certificate dated 16.10.2015 was issued by our office
and the same is Ex. PW1/15 which bears the signature of sh.
Deepak Mehra, General Manager of our organization.
Xxxxx by Ms. Yashi Tyagi, learned counsel for Respondent
No.3.
Sh. Archit was working in our organization w.e.f.
02.06.2014. The mode of payment of salary to Sh. Archit was
made by transferring the same into his Bank account. I have
filed the record pertaining to transfer of salary of Sh. Archit
for the period w.e.f. January, 2015 to June, 2015 (Vol.) no
salary was given to Sh. Archit after May, 2015. I have not
filed the document pertaining to transfer of salary of Sh.
Archit for the period w.e.f. June, 2014 to December, 2014. It
is correct that I have not supplied any document to the
Investigating Officer with regard to the employment of sh.
Archit. (vol.) Investigating officer has not demanded any
document from our firm. No TDS has been deducted from the
salary of Sh. Archit. It is wrong to suggest that the document
produced by the witness are forged and fabricated
documents. It is wrong to suggest that Sh. Archit was not
employee of our firm...."
3. What emanates from the above is that the claimant was employed
with the aforesaid company. His appointment letter, confirmation letter,
salary transfer letter, wages payment register and attendance register, etc.
had been duly produced before the learned Tribunal and accepted as proof of
employment and payment of salary. It has also been accepted by the said
deponent that the payments were made through transfer of monies into the
employees' bank accounts. Nothing adverse has come out in the cross-
examination, against the assertion, that the claimant was employed with the
said company and was being paid Rs. 23,000/- per month. Therefore, this
argument of the appellant is without merit and is, accordingly, rejected.
4. The learned counsel for the appellant contends that compensation
towards 'loss of future prospects' @ 50% has been granted, whereas it
should have been 40%. The Court would note that for a paraplegic, the
Supreme Court in Parminder Singh v. New India Assurance Co. Ltd. & Ors
2019 SCC OnLine SC 802 has awarded loss of future prospect @ 50%.
There is no error in the said grant by the learned Tribunal. The appellant's
argument in this regard being without merit is rejected.
5. The appellant further impugns the award of compensation towards
attendant charges of Rs. 3,13,100/-. The claimant being a paraplegic needs
the assistance of an attendant round the clock. For the moment, the
impugned order has granted attendant charges only for 12 hours, at monthly
salary of Rs. 9,048/- i.e. the minimum wages applicable to an unskilled
workman. The Court is of the view that a fair and just compensation would
warrant payment of attendant charges from the day the need for an attendant
arose. Award of Compensation in this regard should reflect the ground
reality and should not be a notional or illusory compensation. The year from
which attendant charges are granted is 2017. The motor vehicular accident
occurred in the year 2015 which eventually resulted in the disability. An
attendant would have been required right from the moment the accident took
place. Each year, the minimum wages are notified twice by the State
Government. In the circumstances, the attendant would be payable as per
the rates notified by the Government of NCT of Delhi for an unskilled
workman from the year when the injured became disabled. Accordingly,
attendant charges be paid as per the minimum wages notified by the
Government of NCT of Delhi for an unskilled workman from 18.05.2015
i.e. the date of the accident. The same shall be:
Year Minimum Wages Amount
2015 [Rs.9048/- + Rs. 9,178/-÷ 2 x 7] Rs. 63,791/-
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/-
2019 [Rs. 14,468/- + Rs. 14,842 ÷ 2 x 12] Rs. 1,75,860/-
TOTAL Rs. 6,85,787/-
6. Apropos 'future attendant charges', the insurance company shall pay
the minimum wages applicable to an unskilled workman on the actual rates
as notified by the GNCTD for the life-time of the injured. For this purpose,
the insurance company shall deposit Rs. 15 lacs. This money shall be kept
in an interest bearing FDR to enure to the benefit of the injured-claimant.
Each month, the minimum wages shall be released by the Bank directly into
the account of the claimant. Should the monies get exhausted, it shall be
replenished by an equal amount by the insurer. Should the monies out-last
the injured claimant, the insurance company shall have a lien over it, and it
shall be returned to the insurer alongwith interest accrued on the remaining
amount. Monies already paid towards attendant charges shall be set off
against the enhanced amount.
7. The aforesaid amount, alongwith interest @ 9% p.a. 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(ies) of the Award in terms of the
scheme of disbursement specified therein.
8. The appeal stands disposed off accordingly.
9. The statutory amount, alongwith interest accrued thereon, be
deposited into the 'AASRA' Fund created by this Court.
CM APPL. 8664/2019 (condonation of delay of 2 days in filing cross-
objections by R-1)
10. This application seeks condonation of delay of 2 days in filing the
cross-objections by respondent no.1. For the reasons stated therein, the
application is allowed and the delay is condoned.
11. The application stands disposed off.
CM APPL. 8662/2019 (Cross Objections By R-1 & 8663/2019 (addl./
Evidence)
12. Let the cross-objection, filed by the respondent, be registered as a
separate MAC. APP. by the Registry.
13. Issue notice. Mr. Amit Kumar Maihan, Advocate accepts notice for
the insurance company. At joint request, the appeal is taken up for disposal.
14. The claimant seeks enhancement of the compensation amount. It is
argued that he is still undergoing physiotherapy and rehabilitative exercises
for which he requires change of catheter roughly five times a day for which
he incurs Rs. 18,000/- per month. In view of the above, for future medical
expenses, the insurance company shall set aside Rs. 5 lacs for the moment,
from which monies will be released to the claimant upon bills being
presented and verified by it in this regard.
15. The claimant wishes to enhance his mobility. His request is valid.
Let a motorised wheelchair be made available to him, to his comfort and
satisfaction, within a period of three weeks from the date of receipt of a copy
of this order. The vendor for the same shall be identified by the claimant
himself. The wheelchair shall have a lifetime warranty. The insurer shall
directly pay the supplier of the wheelchair, the cost of the same on the basis
of an advance invoice. The insurer shall also provide the telephone numbers
and E-mail Ids of its three responsible officers, who shall respond to the
injured/claimant in case any difficulty arises apropos the functioning of the
wheel chair. Should it require to be changed or upgraded, the same shall be
at the cost of the insurance company. By the 5th day of January and August,
the insurer shall ascertain the functioning of the wheelchair and otherwise
rectify any malfunctioning of it within two days of receipt of such
intimation. The Court had similarly directed the provision of a motorized
wheelchair with a life time warranty to the injured/claimant in The United
India Insurance Co. Ltd. vs. Phool Kumari & Ors., MAC. APP. 533/2017
decided on 26.08.2019. The SLP No. 27876/2019 against it, preferred by the
insurer was dismissed by the Supreme Court on 04.12.2019.
16. The claimant has been granted Rs. 2 lacs and Rs. 1 lacs for 'pain and
suffering' and 'loss of amenities of life', respectively. He was in the prime
of his life and had his whole life ahead of him. He has now been put to a
stage of whim and mercy on others to even interact socially. In the
circumstances, his deprivation being absolute, the compensation towards
'pain and suffering' and 'loss of amenities' needs to be enhanced.
Accordingly, the same are enhanced to Rs. 5 lacs and Rs. 4 lacs respectively.
17. The enhanced amount, in both the appeals: (i) filed by the insurance
company, and (ii) filed by the claimant, alongwith interest thereon @ 9% per
annum from the date of filing of the claim petition till its realization, shall be
deposited by the insurance company before the learned Tribunal, within a
period of three weeks from the date of receipt of copy of this order, to be
released to the claimant in terms of the scheme of disbursement specified
therein. The claim petition was suspended for five months on account of the
claimant, therefore, interest shall not be paid for five months from the date
of filing of the claim petition.
18. The appeal is disposed-off accordingly.
NAJMI WAZIRI, J
JANUARY 16, 2020/kk
