Delhi High Court
Sbi General Insurance Co Ltd vs Gaurav Tanwar & Ors on 25 July, 2023
$~11 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25thJuly, 2023
(11)+ MAC.APP. 184/2019 & CM APPL. 4928/2019
SBI GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr.Sameer Nandwani,
Ms.Nikita Sharma, Mr.Rohin
Singh Pande, Advs.
versus
GAURAV TANWAR & ORS ..... Respondents
Through: Mr.S.N.Parashar, Adv.
(12)+ MAC.APP. 469/2019
GAURAV TANWER ..... Appellant
Through: Mr.S.N. Parashar, Adv.
versus
PAPPU & ORS (SBI GENERAL INSURANCE CO LTD )
..... Respondent
Through: Mr.Sameer Nandwani,
Ms.Nikita Sharma, Mr.Rohin
Singh Pande, Advs. for R-3.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. These cross appeals have been filed by the Insurance Company
and Mr.Gaurav Tanwar/claimant challenging the order dated
12.11.2018 passed by the learned Motor Accidents Claims Tribunal,
Shahdara District, Karkardoom Courts, Delhi (hereinafter referred to
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as the „Tribunal‟) in MACT Case no.1410/2016, titled Gaurav
Tanwer v. Pappu& Anr..
2. The narration of the accident is that on 07.01.2015 at about 2.30
pm, the claimant alongwith one Dheeraj was going from Sonepat,
Haryana to village Sunhera, Bhaghpat, Uttar Pradesh by motorcycle
bearing no. UP 17-6626 being driven by him. When they reached near
Chauhan Hotel, Village Goripur, Sonepat Road, PS Baghpat, UP, they
had a head-on collision with one truck bearing No. HR-45B 3754
(hereinafter referred to as the „Offending Vehicle‟). Due to the injury
suffered, the claimant was removed to District Combined Hospital,
Baghpat, UP, but was referred to the Fortis Hospital, where he
remained hospitalized during the period from 07.01.2015 to
19.01.2015. He was thereafter referred to the Atlanta Mediworld
Hospital, where he was hospitalised between 19.01.2015 to
28.01.2015, 11.05.2015 to 13.05.2015, and 20.07.2015 to 29.07.2015.
He was also hospitalised in the Fortis Hospital between 12.12.2015 to
15.12.2015, and had to undergo multiple surgeries. He suffered 46%
permanent disability in his right lower limb.
3. Based on the evidence on record, the learned Tribunal found the
claimant to have been guilty of contributory negligence, and directed
50% deduction of the awarded amount under the head of loss of
earning on this account.
4. The first challenge of the claimant is to the finding of him being
found guilty of contributory negligence quantified at 50%.
5. The learned counsel for the claimant, placing reliance on the
site plan of the accident, submits that the site plan shows that the
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offending vehicle was being driven towards the right side of the road
which was without a divider in between. He submits that as the heavy
goods vehicle-truck was to be driven on the left side of the road,
therefore, in the given facts, the attribution of 50% as contributory
negligence of the claimant was completely unjustified, and Award to
this extent is liable to be set aside.
6. On the other hand, the learned counsel for the Insurance
Company submits that the site plan shows that the accident had taken
place in the middle of the road. The claimant also had no reason to
drive his motorcycle in the middle of the road. He submits that
therefore, the learned Tribunal has rightly attributed 50% of the
contributory negligence on the claimant.
7. I have considered the submissions made by the learned counsels
for the parties.
8. The site plan referred to by the learned counsels for the parties
clearly shows that the accident happened in the middle of the road. It
is not the case of the claimant that he had to drive in the middle of the
road for some reason or for the presence of any vehicle or other
blockade on his left side. The road was without a divider in between
and therefore, the claimant also should have been vigilant while
driving his motorcycle. The learned Tribunal, placing reliance on the
site plan, has observed as under:
"16.2. I have gone through the record.
Insurance company has cross examined the
PWl on this aspect and put a suggestion to this
effect but no further cross examination of
witness has been conducted. However, injured
has relied upon a certified copy of criminal
record pending against the driver of the
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offending vehicle and the same is containing a
site plan to prove the spot of this accident.
This site plan has shown the spot of accident
at Point X which is in the middle of the road
which was not the spot of driving of any of the
vehicles. The accident in the middle of the
road was definitely a head on collusion
between both the vehicles and injured, who
was driving his motorcycle, was also
responsible for this accident and contributed
to this accident. Even the law this effect is also
well established. It is held in AIR 2009 SC
1951 titled Usha Rajkhowa v. Paramount
Industries that the petitioners are entitled for
50% of compensation in case of head on
collusion of the vehicles being a case of
contributory negligence. Even similar law has
been approved in Raj Rani & Ors. Vs. Oriental
Insurance Co. Ltd. &Ors. (2009) 13 SCC 654,
Vijay Kumar Duggal Vs. Bidya Dhar Dutta &
Ors. (2006) 3 SCC 342 that 50% of award
amount has to be deducted towards
contributory negligence. However, this
deduction is to be made only out of award
amount granted loss of earning during
treatment period as well as loss on account of
permanent disability. However, this deduction
shall not be applicable against the amount
awarded under unconventional heads. As
such, Respondents No. 3 is liable to pay this
compensation."
9. In Usha Rajkhowa v. Paramount Industries, (2009) 14 SCC
71, the Supreme Court has held as under:
"20. The question of contributory negligence
on the part of the driver in case of collision
was considered by this Court in Pramodkumar
Rasikbhai Jhaveri v. Karmasey Kunvargi
Tak [(2002) 6 SCC 455] . That was also a case
of collision between a car and a truck. It was
observed in SCC p. 458, para 8:
"8. ... The question of contributory
negligence arises when there has been
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some act or omission on the claimant's
part, which has materially contributed
to the damage caused, and is of such a
nature that it may properly be described
as „negligence‟. Negligence ordinarily
means breach of a legal duty to care,
but when used in the expression
„contributory negligence‟ it does not
mean breach of any duty. It only means
the failure by a person to use
reasonable care for the safety of either
himself or his property, so that he
becomes blameworthy in part as an
„author of his own wrong‟."
21. This Court further relied on an observation
of the High Court of Australia
in Astley v. Austrust Ltd.[(1999) 73 ALJR 403]
to the following effect:
"A finding of contributory negligence
turns on a factual investigation whether
the plaintiff contributed to his or her
own loss by failing to take reasonable
care of his or her person or property.
What is reasonable care depends on the
circumstances of the case. In many
cases, it may be proper for a plaintiff to
rely on the defendant to perform its
duty. But there is no absolute rule. The
duties and responsibilities of the
defendant are a variable factor in
determining whether contributory
negligence exists and, if so, to what
degree. In some cases, the nature of the
duty owed may exculpate the plaintiff
from a claim of contributory negligence;
in other cases, the nature of the duty
may reduce the plaintiff's share of
responsibility for the damage suffered;
and in yet other cases, the nature of the
duty may not prevent a finding that the
plaintiff failed to take reasonable care
for the safety of his or her person or
property. Contributory negligence
focuses on the conduct of the plaintiff.
The duty owed by the defendant,
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although relevant, is one only of many
factors that must be weighed in
determining whether the plaintiff has so
conducted itself that it failed to take
reasonable care for the safety of its
person or property."
10. Applying the above principles, and in the facts of the present
case, I find no infirmity in the Impugned Award on the attribution of
50% contributory negligence on the claimant.
11. The learned counsel for the Insurance Company submits that
once 50% contributory negligence was attributed to the claimant, there
is no reason to confine the deduction only on the head of „loss of
earning‟. He submits that deduction should have made on all the heads
of compensation awarded in favour of the claimant.
12. On the other hand, the learned counsel for the claimant submits
that the attribution of the contributory negligence will be relevant only
towards the head of „loss of earning‟ and not on other heads.
13. In the present case, the summary of compensation awarded to
the claimant by the Impugned Award is as under:
1. Reimbursement of medical Rs. 15,71,063/-
expenses:
2. Pain and Suffering: Rs. 1,00,000/-
3. Attendant charges for 12 Rs. 5,000 X 12
months: = 60,000/-
4. Loss of Income during Rs. 8632 X 12
treatment period: =Rs.1,03,584/-
(12 months @Rs. 8,632/- (50% to be
pm) deducted qua
contributory
negligence)
5. Loss of earning capacity Rs. 5,67,011/-
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including future (50% to be
damages due to-this deducted qua-
disability: contributory
negligence)
6. Conveyance & special diet: Rs. 25,000/-
7. Compensation for mental Rs, 50,000/-
and physical shock:
8. Loss of amenities in life: Rs. 75,000/-
9. Damages for inconvenience, Rs. 75,000/-
hardship, frustration and
permanent disfigurement.
Total = Rs.26,26,658/-
(Rs.22,91,360/-
after deduction
50% from loss
of income,
rounded off
Rs.22,92,000/-)
14. As is evident from the above, deduction for the reason of
contributory negligence has been made by the learned Tribunal only
on the head of loss of income during the treatment period, and the loss
of earning capacity, including future damage due to this disability.
While no deduction can be made on the compensation awarded
towards the "reimbursement of medical expenses", I see no reason
why such deduction has not been made by the learned Tribunal on the
other heads on the compensation awarded to the claimant. Once the
claimant is attributed contributory negligence, the deduction should
have been made on the other heads of the Award of compensation as
well. The Impugned Award shall therefore stand modified to this
extent, directing that on the amounts awarded at Serial number 2 to 9
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of the above table, as modified by the present order, deduction of 50%
on account of attribution of contributory negligence on part of the
claimant, shall be made.
15. This now brings me to the other challenges of the claimant to
the Impugned Award.
16. The learned counsel for the claimant submits that the claimant
in his affidavit of evidence stated that he was a graduate in Bachelor
of Arts from Chaudhary Charan Singh University, Meerut, UP. A
certificate in this regard was also placed on record by the claimant
before the learned Tribunal. Instead of relying on this evidence, the
learned Tribunal, in its Impugned Award, wrongly observed that no
evidence of the educational qualification of the claimant has been
produced on record. Based on such erroneous finding, the learned
Tribunal held that the loss of income is to be assessed based on the
Minimum Wages prevalent in Delhi for an unskilled labour. The
learned counsel for the claimant submits that as the claimant is a
graduate, the minimum wages as applicable to a graduate should have
been taken into consideration.
17. I find merit in the submission made by the learned counsel for
the claimant. The claimant, in his affidavit of evidence, had clearly
stated that he has passed the Bachelor of Arts from the Chaudhary
Charan Singh University, Meerut, Uttar Pradesh. He has also placed
on record the marksheet for the final examination for the said course.
The learned Tribunal, in spite of said evidence on record, held that the
claimant has not placed on record any documents of his educational
qualification. The said finding is, therefore, erroneous on the face of
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the record.
18. The claimant is, accordingly, held entitled to determination of
his loss of income on basis of the minimum wages prevalent in Delhi
on the date of the accident for a graduate.
19. The learned counsel for the claimant submits that on the date of
accident such minimum wages were notified as Rs.11,414/- per
month. As this is not disputed by the learned counsel for the Insurance
Company, it is directed that for the loss of income during the
treatment period and for the future loss of income, the assessment
shall be made taking the income of the claimant as Rs.11,414/- per
month. The Award shall stand modified to this extent.
20. The next challenge to the Impugned Award is on the account of
compensation awarded under the heads of pain and suffering,
attendant charges, conveyance & special diet, compensation for
mental and physical shock, loss of amenities in life, damages for
inconvenience, hardship, frustration and permanent disfigurement.
The learned counsel for the claimant submits that looking into the
injuries suffered by the claimant, the quantification of the
compensation on the above heads is highly inadequate and is entitled
to enhancement by this Court.
21. On the other hand, the learned counsel for the Insurance
Company submits that in the absence of any evidence, the learned
Tribunal has rightly awarded the compensation on the above heads,
and the same deserves no interference from this Court.
22. I have heard the submissions made by the learned counsels for
the parties.
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23. The history of hospitalization of the claimant has been
mentioned by me hereinabove. The claimant in his affidavit of
evidence also describes the injuries suffered by him as under:
"4. I say that I have received permanent
disability due to sustained injuries i.e. RTA
WITH POLY TRAUMA (MANDIBLE
FRACTURE), FRACTURE SHAFT RIGHT
FEMUR, FRACTURE ACETABULUM
RIGHT, FRACTURE RIGHT PATELLA
(LOWER POLE) FRACTURE PROXIMAL
PHALYNX LITTLE TOE, FRACTURE
PELVIS, FRACTURE LEFT ILIAC BONE
AND BLUNT ABDOMINAL. I will apply for
disability certificate and I will submit before
this Hon‟ble Court as and when I will obtain
it."
24. Taking into account the nature of injuries suffered by the
claimant due to the accident, and the history of his hospitalization,
including multiple surgeries undergone by him, in my view, the
quantification of the compensation awarded to the Claimant on
account of pain and suffering, conveyance & special diet, and
compensation for mental and physical shock (Sl. No.2, 6 and 7 of the
table reproduced above) are highly inadequate. They are accordingly
enhanced to Rs.5,00,000/-, Rs.1,00,000/- and Rs.2,00,000/-
respectively. The Award shall stand modified accordingly.
25. As far as the quantification of the compensation on the head of
the attendant charges is concerned, in view of the judgment of the
Supreme Court in Kajal v. Jagdish Chand & Ors., (2020) 4 SCC 413,
said charges are to be determined on the basis of minimum wages
notified for the unskilled workers by the Government of NCT of
Delhi. As is evident from the Award itself, the minimum wages for
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unskilled worker is Rs.8,632/- per month. Accordingly, the
compensation towards the attendant charges shall be enhanced and re-
calculated at Rs.8,632/- per month for the period of 12 months,
equivalent to Rs.1,03,584/- (Rs. 8,632/- x 12).
26. As regards the compensation on account of loss of amenities of
life and damages for inconvenience, hardship, frustration and
permanent disfigurement, I do not see any reason to enhance the same,
especially taking into account the enhancement granted hereinabove.
27. The last challenge of the claimant to the Impugned Award is on
account of deduction in the functional disability.
28. The learned counsel for the claimant submits that it had come
on record that the claimant had suffered 46% permanent disability in
his right lower limb. The nature of the injuries has been described
hereinabove. He submits that in view of the injuries suffered, and the
hospitalization that the claimant had to undergo, the learned Tribunal
has erred in taking the functional disability of the appellant as only
23% towards his whole body.
29. The learned counsel for the Insurance Company, on the other
hand, submits that it was the own case of the claimant that the
claimant was earning his livelihood through giving tuition. Due to his
disability suffered, there would have no loss of income. He submits
the learned Tribunal has, therefore, rightly assessed the functional
disability at 23% towards whole body. I am in agreement with the
submission made by the learned counsel for the Insurance Company.
30. The Supreme Court in Raj Kumar v. Ajay Kumar and Anr.,
(2011) 1 SCC 343, has laid down the principle for assessment of
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functional disability as under:
"12. Therefore, the Tribunal has to first decide
whether there is any permanent disability and,
if so, the extent of such permanent disability.
This means that the Tribunal should consider
and decide with reference to the evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it
is permanent total disablement or permanent
partial disablement;
(iii) if the disablement percentage is expressed
with reference to any specific limb, then the
effect of such disablement of the limb on the
functioning of the entire body, that is, the
permanent disability suffered by the person.
If the Tribunal concludes that there is no
permanent disability then there is no question
of proceeding further and determining the loss
of future earning capacity. But if the Tribunal
concludes that there is permanent disability
then it will proceed to ascertain its extent.
After the Tribunal ascertains the actual extent
of permanent disability of the claimant based
on the medical evidence, it has to determine
whether such permanent disability has affected
or will affect his earning capacity.
13. Ascertainment of the effect of the
permanent disability on the actual earning
capacity involves three steps. The Tribunal has
to first ascertain what activities the claimant
could carry on in spite of the permanent
disability and what he could not do as a result
of the permanent disability (this is also
relevant for awarding compensation under the
head of loss of amenities of life). The second
step is to ascertain his avocation, profession
and nature of work before the accident, as also
his age. The third step is to find out whether (i)
the claimant is totally disabled from earning
any kind of livelihood, or (ii) whether in spite
of the permanent disability, the claimant could
still effectively carry on the activities and
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functions, which he was earlier carrying on, or
(iii) whether he was prevented or restricted
from discharging his previous activities and
functions, but could carry on some other or
lesser scale of activities and functions so that
he continues to earn or can continue to earn
his livelihood.
xxxxx
19. We may now summarise the principles
discussed above:
(i) All injuries (or permanent disabilities
arising from injuries), do not result in loss of
earning capacity.
(ii) The percentage of permanent disability
with reference to the whole body of a person,
cannot be assumed to be the percentage of loss
of earning capacity. To put it differently, the
percentage of loss of earning capacity is not
the same as the percentage of permanent
disability (except in a few cases, where the
Tribunal on the basis of evidence, concludes
that the percentage of loss of earning capacity
is the same as the percentage of permanent
disability).
(iii) The doctor who treated an injured
claimant or who examined him subsequently to
assess the extent of his permanent disability
can give evidence only in regard to the extent
of permanent disability. The loss of earning
capacity is something that will have to be
assessed by the Tribunal with reference to the
evidence in entirety.
(iv) The same permanent disability may result
in different percentages of loss of earning
capacity in different persons, depending upon
the nature of profession, occupation or job,
age, education and other factors."
31. In the present case, it was the own case of the claimant that the
claimant was providing tuition for earning his livelihood. Of course,
on completing his education, he could have taken some other job,
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however, the claimant has failed to show how his injury in any case
affects his ability to perform his job or affects his means of earning
livelihood. The learned Tribunal in the Impugned Award has held as
under:
"13. Lose of disability: Petitioner is entitled
for compensation under this head as he has
suffered 46% disability as per disability
certificate Ex.PW3/A in his right lower limb.
Ld. Counsel for the respondents have argued
that injured is not entitled for compensation as
per the percentage of disability certificate as
his earning capacity has not been suffered by
this disability and he can very well perform all
his day to day work due to he is not entitled for
compensation for disability. However, the
purpose of disability certificate is to determine
the actual as well as functional disability on
account of accident. It is not disputed that the
functional disability is also to be determined
by Schedule I of the Workmen's compensation
Act, 1923 in terms of section of Section 143
M.V. Act. It has held in Oriental Insurance Co.
Ltd. V. Mohd. Nasir (2009) 6 SCC 280 that,
both the statutes provide for the mode and
manner in which the percentage of loss of
earning capacity is required to be calculated.
They provide the amount of compensation in
cases of this nature would be directly relatable
to the percentage of physical disability
suffered by the injured vis-a-vis the injuries
are specified in the First Schedule of the 1923
Act. Indisputably where injuries are specified
in the First Schedule, the mode and manner
provided for the purpose of calculating the
amount of compensation would be applicable.
The 1923 Act would also be applicable to the
claims applications arising out of the use of
motor vehicles in terms of the provisions of the
1988 Act for the purpose of determination of
the amount of compensation where the victim
of the accident suffers from disability in the
cases coming within the purview of thereof.
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The note appended to the Second Schedule of
the 1988 Act raises a legal fiction, stating that
"injuries deemed to result in permanent total
disablement / permanent partial disablement
and percentage of loss of earning capacity
shall be as per Schedule I under the
Workmen's compensation Act, 1923".
Permanent disability, therefore, for certain
purposes have been co-related with functional
disability. In fact, the disablement and loss of
earning capacity are two different and not
substitute to each other, however functional
disability, thus, has a direct relationship with
the loss of limb. As per disability certificate
Ex.PW3/A, it is 46% but his functional
disability must be definitely less then it. Ld.
Counsel for the injured has argued that the
injured was taking tuitions and has suffered
100% functional disability for his work and
cannot do his work again, but no document
has been proved to the effect that he was doing
any work. However, it is not disputed that the
efficiency of the injured must have gone down,
but it is also not disputed that he has not
become defunct by this accident and even his
work of tuition is involving only sitting work
which is not going to affect by this injury. In
view of the facts, 1 determine the functional
disability of injured as 23% towards his whole
body."
32. I find no reason to disagree with the above finding of the
learned Tribunal. Accordingly, the challenge of the claimant to the
Impugned Award in this head is rejected.
33. No other challenge has been raised by the parties to the
Impugned Award.
34. The Impugned Award shall accordingly stand modified to the
above extent.
35. The learned Tribunal shall re-assess the compensation payable
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to the claimant on the basis of its Award as modified by the present
order. In case the amount already deposited by the Insurance
Company is found to be inadequate, the Insurance Company shall
deposit the additional amount within a period of four weeks of the
assessment. In case the amount deposited by the Insurance Company
is found to be in excess, the excess amount shall be refunded by the
learned Tribunal to the Insurance Company along with proportionate
interest thereon.
36. The parties shall appear before the learned Tribunal on 13 th
September, 2023.
37. The learned counsel for the claimant submits that certain
amount has already been released in favour of the claimant. The
learned Tribunal shall release the balance amount to the claimant in
terms of the schedule prescribed in the Impugned Award.
38. The statutory amount deposited by the Insurance Company shall
be released to the Insurance Company alongwith interest accrued
thereon.
39. The appeals, along with the pending application, are disposed of
in the above terms.
40. The Trial Court Record be sent back to the concerned Tribunal.
NAVIN CHAWLA, J
JULY 25, 2023/Arya/ss
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