Delhi High Court
Jogender Singh vs Mohan Singh, Iffco Tokio Gen Ins Co ... on 20 September, 2023
$~9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20.09.2023
(9)+ MAC.APP. 489/2017
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD
..... Appellant
Through: Mr.Brijesh Bagga, Adv.
versus
JOGENDER & ORS ..... Respondents
Through: Mr.S.N.Parashar, Adv.for R-1.
Mr.Jatin Rajput, Mr.Rajesh Kr.
Jha, Mr.Varun Panwar,
Mr.Sandeep Kumar, Advs. for
R-3.
(10)+ MAC.APP. 298/2018
JOGENDER SINGH ..... Appellant
Through: Mr.S.N.Parashar, Adv.
versus
MOHAN SINGH, IFFCO TOKIO GEN INS CO LTD AND
ORS ..... Respondents
Through: Mr.Jatin Rajput, Mr.Rajesh Kr.
Jha, Mr.Varun Panwar,
Mr.Sandeep Kumar, Advs. for
R-2.
Mr.Brijesh Bagga, Adv.for R-3.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. Verified
Signature Not These cross appeals have been filed by the Insurance Company
Digitally Signed By:SUNIL
Signing Date:25.09.2023
16:06:19
as also by the Claimant challenging the Award dated 14.02.2017
(hereinafter referred to as the 'Impugned Award') passed by the
learned Motor Accidents Claims Tribunal-01, (North), Rohini, Delhi
(hereinafter referred to as the 'Tribunal') in Suit no.4603/2016, titled
Jogender v. Mohan Singh & Ors.
2. As two appeals challenge the same Award, they are being
disposed of by this common judgment.
CHALLENGE TO THE IMPUGNED AWARD BY THE
INSURANCE COMPANY:
3. As far as the Insurance Company is concerned, it challenges the
Impugned Award on the following grounds: -
a. That the learned Tribunal has erred in not granting
a right in favour of the Insurance Company to recover
the compensation paid to the claimant from the owner of
the offending vehicle, that is, the crane bearing
registration no.HR-55L-0590;
b. The learned Tribunal has erred in assessing the
functional disability of the claimant as 100% to the
whole body when he had suffered permanent disability
of only 81% towards right lower limb;
c. That date of the accident was 24.03.2015, however,
the learned Tribunal has adopted the minimum wages
notified by the Government of NCT of Delhi for an
unskilled labour with effect from 01.04.2015, that is
Signature Not Verified after the date of the accident.
Digitally Signed By:SUNIL
Signing Date:25.09.2023
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Non-grant of recovery rights
4. The learned counsel for the Insurance Company submits that
the driving licence produced by the driver of the offending vehicle
before the learned Tribunal was valid till 02.02.2015 as far as the
transport vehicle is concerned, and for Light Motor Vehicle it was
valid till 12.08.2030. He submits that as the Offending Vehicle is a
crane and not a Light Motor Vehicle, even as per the weight given in
the Registration Document of the Vehicle, the Driving License was
not valid as on the date of the accident.
5. I am unable to accept the submission of the learned counsel for
the Insurance Company. The driving licence produced by the driver of
the offending vehicle stated its validity for 'Transport Vehicle' till
02.02.2015, and for 'Non-Transport Vehicle' till 12.08.2030. The
learned Tribunal in its Impugned Award has held that as the offending
vehicle was a crane, it would fall in the category of 'non-transport
vehicle' and, therefore, the driving licence was valid as on the date of
the accident.
6. The Motor Vehicles Act, 1988 (hereinafter referred to as the
'Act') defines a 'Transport Vehicle' in Section 2 (47) as under:
"2. Definitions.--In this Act, unless the context
otherwise requires,--
xxxx
(47) "transport vehicle" means a public
service vehicle, a goods carriage, an
educational institution bus or a private service
vehicle;"
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:25.09.2023
16:06:19
7. Admittedly, the crane was not a public service vehicle, goods
carriage, or an educational institution bus. It was also not a 'Private
Service Vehicle' as well.
8. 'Private Service Vehicle' is defined, in Section 2(33) of the Act
as under:
"2. Definitions.--In this Act, unless the context
otherwise requires,--
xxxx
(33) "private service vehicle" means a motor
vehicle constructed or adapted to carry more
than six persons excluding the driver and
ordinarily used by or on behalf of the owner of
such vehicle for the purpose of carrying
persons for, or in connection with, his trade or
business otherwise than for hire or reward but
does not include a motor vehicle used for
public purposes."
9. As the offending vehicle was not a 'transport vehicle', it would
necessarily fall under the category of 'non-transport vehicle', and
therefore, the licence of the driver of the offending vehicle was valid
as on the date of the accident.
10. The learned counsel for the Insurance Company has placed
reliance on the judgment dated 06.02.2012 of the High Court of
Madras in M/s ICICI Lombarad General Insurance Co. Ltd. v.
U.Rengarajulu & Ors., Civil Miscellaneous Appeal No. 1905/2020.
The said judgment cannot come to the assistance of the learned
counsel for the Insurance Company inasmuch as the only issue
considered therein was whether the offending vehicle therein, being a
crane having loaded weight of 11,200 kg, can be considered as a
Signature Not Verified
Digitally Signed By:SUNIL
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'Light Motor Vehicle'. In the present case, as the licence of the driver
of the offending vehicle states that it is valid for 'Non-Transport
Vehicle' till 12.08.2030, the question as to the fact that, whether the
offending vehicle can be considered as a 'Light Motor Vehicle' as
defined under Section 2(21) of the Act, is not relevant. It is a 'non-
transport vehicle' for which the license was valid as on the date of the
accident.
Functional Disability
11. As far as the assessment of the functional disability of the
claimant by the learned Tribunal is concerned, the learned counsel for
the Insurance Company reiterates that as the permanent disability
suffered by the claimant was only 81% in relation to his right lower
limb, the learned Tribunal has erred in assessing the functional
disability as 100% to the whole body.
12. I am unable to accept the submission of the learned counsel for
the Insurance Company. The claimant was working as a labourer at
the time of the accident. Admittedly, his right limb is amputated from
near hip-joint due to the injury suffered in the accident. His left hand
is also operated by ORIF (Open Reduction and Internal Fixation), and
skin grafting was again done. The Disability Certificate stated that the
claimant had suffered 81% permanent physical disability in relation to
his left upper and right lower limb. Keeping in view the vocation of
the claimant and the nature of the injuries suffered by him and also
being guided by the dicta of the Supreme Court in Raj Kumar v. Ajay
Kumar and Anr., (2011) 1 SCC 343, I find no fault of the learned
Tribunal
Signature Not Verified assessing the functional disability of the claimant as 100% to
Digitally Signed By:SUNIL
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the whole body.
Minimum Wages
13. The learned counsel for the Insurance Company further submits
that as the date of the accident was 24.03.2015, the minimum wages
notified by the Government of NCT of Delhi as applicable on that date
should have been adopted by the learned Tribunal for awarding the
loss of income in favour of the claimant. He submits that the
minimum wages that would get notified in future cannot be used for
determining the loss of income.
14. I am unable to agree with the submission of the learned counsel
for the Insurance Company. Adoption of the minimum wages is one of
the methods that is, adopted by the Courts/Tribunals in assessing the
reasonable compensation to be paid to the claimants for the injury
suffered in the motor accident. In such approximation, the input which
is most relevant to the date of the accident should be considered. In
the present case, admittedly, within seven days of the date of the
accident, a new Notification with respect to the minimum wages came
into operation. The learned Tribunal has also, on that basis adopted
the minimum wages notified by the Government of NCT of Delhi
with effect from 01.04.2015 for assessing the loss of income to be
awarded in favour of the claimant. I find no fault in the same.
15. The challenges of the Insurance Company to the Impugned
Award are dismissed.
CHALLENGE TO THE IMPUGNED AWARD BY THE
CLAIMANTS:
16.Verified
Signature Not The claimant challenges the Impugned Award on the following
Digitally Signed By:SUNIL
Signing Date:25.09.2023
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grounds:
a. That the learned Tribunal has failed to grant future
prospects while determining the loss of income
awarded to the claimant;
b. The learned Tribunal has erred in restricting the
compensation awarded to the claimants towards the
cost of the artificial limb only Rs.1 lac.
Future Prospects
17. The learned counsel for the claimant, placing reliance on the
judgment of the Supreme Court in National Insurance Company Ltd
v. Pranay Sethi & Ors., (2017) 16 SCC 680, submits that the future
prospects at the rate of 40% should have been granted by the learned
Tribunal. This could not be seriously disputed by the learned counsel
for the Insurance Company.
18. In the present case, as the claimant was aged about 27 years and
has been considered as working as a labourer, in view of the judgment
of the Supreme Court in Pranay Sethi (supra), future prospects at the
rate of 40% should have been considered by the learned Tribunal.
19. The Impugned Award shall stand modified accordingly.
Artificial Limb
20. As far as the cost of the artificial limb is concerned, the learned
counsel for the claimant, placing reliance on the statement of
Mr.Rakesh Kumar, Prosthetics and Orthotist from Endolite Prosthetics
and Orthodontist Center (PW-2), submits that the witness has stated
that the cost of the limb would be Rs.4,08,600/-; it has warranty of
two
Signature Not years; and has a tentative life of 5-10 years depending upon the
Verified
Digitally Signed By:SUNIL
Signing Date:25.09.2023
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activities of the patient. The socket is to be changed as per physique of
the patient. Cost of socket is about Rs.20,000/-. He submits that in
light of the above, the compensation awarded in favour of the claimant
is extremely meager.
21. On the other hand, the learned counsel for the Insurance
Company placed reliance on the statement of PW2 in his cross-
examination. He submits that the witness had admitted that there
would be cheaper systems of the same kind available in the market.
He submits that keeping in view the above statement and the amount
awarded to the claimant towards loss of income, the learned Tribunal
has rightly assessed the compensation towards cost of limb as Rs.1
lac.
22. I have considered the submissions made by the learned counsels
for the parties.
23. While PW-2 accepted that there would be cheaper artificial
limbs available in the market, the estimate which was produced by
him was of Rs.4,08,600/-. The respondent/Insurance Company did not
lead any evidence on the cost of the limb that would be suitable for the
claimant.
24. Even with the supply of the artificial limb, there would not be
any effect on the loss of income that the claimant would suffer
specially keeping in view his age as also that he was working as a
labourer at the time of the accident. Compensation awarded to the
Claimant on the head of loss of income, therefore, cannot be a
justification for denying to him 'just compensation' towards artificial
limb
Signature Not that would only give him some relief in his day to day activities
Verified
Digitally Signed By:SUNIL
Signing Date:25.09.2023
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and allow him to lead a life with dignity.
25. In Mohd. Sabeer @ Shabir Hussain v. Regional Manager,
U.P. State Road Transport Corporation, 2022 SCC OnLine 1701, the
Supreme Court, while considering a claim of an injured aged about 37
years, had observed and assessed the compensation as under:-
"COMPENSATION FOR THE PURCHASE
AND MAINTENANCE OF THE
PROSTHETIC LEG
22.The High Court has awarded a
compensation of Rs.5,20,000/- for the
prosthetic limb and Rs.50,000/- towards repair
and maintenance of the same. The Appellant
submits that the cost of the prosthetic limb
itself is Rs. 2,60,000/- and the life of the
prosthetic limb is only 5-6 years. The
prosthetic limb also requires repair and
maintenance after every 6 months to 1 year,
and each repair costs between Rs.15,000 to
Rs.20,000/-. This would mean that the
prosthetic limb would last the Appellant for
only 15 years under the current compensation.
The Appellant at the time of the accident was
aged 37 years and has a full life ahead. It has
been clearly stated by this Court in the case of
Anant Son of SidheshwarDukre (Supra) that
the purpose of fair compensation is to restore
the injured to the position he was in prior to
the accident as best as possible. The relevant
paragraph of the judgment is being extracted
herein:
"In cases of motor accidents leading to
injuries and disablements, it is a well
settled principle that a person must not
only be compensated for his physical
injury, but also for the non-pecuniary
losses which he has suffered due to the
injury. The Claimant is entitled to be
Signature Not Verified compensated for his inability to lead a
Digitally Signed By:SUNIL
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full life and enjoy those things and
amenities which he would have enjoyed,
but for the injuries."
"The purpose of compensation under
the Motor Vehicles Act is to fully and
adequately restore the aggrieved to the
position prior to the accident."
23. As per the current compensation given for
the prosthetic limb and its maintenance, it
would last the Appellant for only 15 years,
even if we were to assume that the limb would
not need to be replaced after a few years. The
Appellant was only 37 years at the time of the
accident, and it would be reasonable to
assume that he would live till he is 70 years
old if not more. We are of the opinion that the
Appellant must be compensated so that he is
able to purchase three prosthetic limbs in his
lifetime and is able to maintain the same at
least till he has reached 70 years of age. For
the Prosthetic limbs alone, the Appellant is to
be awarded compensation of Rs. 7,80,000 and
for maintenance of the same he is to be
awarded an additional Rs. 5,00,000/-."
26. In view of the above laid dicta, in my view, the compensation
awarded to the claimant towards cost of prosthetic limb deserves to be
enhanced. It is accordingly enhanced to Rs.10 lacs, towards the cost of
the prosthetic limb. The prosthetic limb also requires regular
maintenance, for the same, a lump-sum amount of Rs.3 lacs is
awarded to the claimant.
27. Accordingly, the compensation awarded in favour of the
claimant is enhanced, as under:
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:25.09.2023
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Loss of future earnings Rs.10,010/- x 140/100 x 12 x 17=
Rs.28,58,856/-
Cost for artificial limb Rs.10,00,000/-
Cost of repair of artificial limb Rs.3,00,000/-
Total amount Rs.41,58,856/-
(total amount - compensation Rs.41,58,856 - Rs.21,42,040=
awarded by Tribunal) = Total Rs.20,18,816 (rounded off to Rs.
Enhanced compensation 20,20,000/-)
28. The learned counsel for the Insurance Company submits that on
the enhancement of compensation granted to the claimant towards
prosthetic limb, interest should not be awarded. In support he places
reliance on the judgment of this Court in IFFCO Tokio General Ins.
Co. Ltd. v. Raja & Ors., 2014:DHC:4204, wherein this Court had not
awarded pendente lite interest on compensation awarded towards
future attendant charges and towards future medical treatment.
29. I am unable to agree with the submission made. It must be
remembered that the compensation awarded to the claimant is on basis
of estimation and on the prices that were prevalent around the time of
the accident. The same would not remain static for all times to come
and specifically for the entire lifetime of the claimant, which has been
taken into account while awarding the compensation towards
prosthetic limb. The escalation of prices has not been taken into
account. The same would get balanced only if the Court also awards
interests
Signature Not Verified on the compensation amount for the pendente lite period.
Digitally Signed By:SUNIL
Signing Date:25.09.2023
16:06:19
30. The Supreme Court in Mohd. Sabeer @ Shabir Hussain
(Supra), while enhancing the compensation payable to the claimant,
including the enhanced amount for artificial limb and its maintenance,
also awarded interest on the enhanced compensation from the date of
the filing the application.
31. In Raja & Ors. (Supra), the Court has not given reasons for not
awarding pendente lite interest in the said case. The same is, therefore,
not a precedent on this issue. It may have been for peculiar facts of
that case that the Court deemed it appropriate not to award pendente
lite interest in favour of the claimant herein.
32. Accordingly, the claimant shall be entitled to the interest at the
rate as awarded by the learned Tribunal on the enhanced
compensation, both on account of future prospects as also on the cost
and maintenance of prosthetic limb.
33. The Insurance Company shall deposit the enhanced amount of
compensation alongwith interest thereon with the learned Tribunal,
along with its calculation thereof, within a period of six weeks from
today. The amount deposited shall be released to the claimant as per
the schedule of disbursal prescribed in the Impugned Award.
34. The appeals filed by the claimant accordingly succeed.
35. Pursuant to the order dated 24.05.2017 passed in MAC. APP.
489/2017, the Insurance Company has deposited the awarded amount
with the learned Tribunal. The same be also released in favour of the
claimants in accordance with the schedule prescribed by the Impugned
Award.
36.Verified
Signature Not The statutory amount deposited by the Insurance Company shall
Digitally Signed By:SUNIL
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be released to the Insurance Company along with interest accrued
thereon.
37. The appeals are disposed off in the above terms. There shall be
no order as to cost.
NAVIN CHAWLA, J
SEPTEMBER 20, 2023/Arya
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:25.09.2023
16:06:19
