Full Text
HIGH COURT OF DELHI
Date of Decision: 23.12.2014
M/S THE NEW INDIA ASSURANCE CO.LTD ..... Appellant
Through Mr.D.D.Singh and Mr.Navdeep Singh, Advocates
Through
JUDGMENT
1. By the present appeal the appellant seeks to impugn the Award dated 28.10.2014. The brief facts are that the claimant respondent No.1 on 09.12.2010 was going with his wife on a motorcycle. At Urai, Kanpur, UP he was hit by an offending truck which was driven rashly and negligently at a high speed which came from the back side and hit the motorcycle. Respondent No.1 fell down and suffered injuries. The issue centres around the quantum of compensation awarded.
2. Based on the evidence on record the Tribunal awarded the following compensation:-
1. Compensation towards pain and sufferings 1,50,000/- 2014:DHC:7423
2. Loss of amenities and enjoyment 1,50,000/-
3. Compensation towards disfiguration and loss of expectancy of life 1,00,000/-
4. Compensation towards loss of future earnning due to disability 6,08,256/-
5. Loss of earning of petitioner for four months @ Rs.5280 per month 21,120/-
6. Expenses towards medical bills 1,409/-
7. Compensation towards conveyance and special diet (without bills) 20,000/-
8. Attendant charges for 1 months @ Rs.5280 per month 5,280/- Total 10,56,065/-
3. A perusal of the Award shows that the Tribunal noted that as per disability certificate Ex.PW1/1 the respondent No.1 had suffered 80% disability. He had suffered amputation (left) u/a below shoulder of his left arm. The Tribunal noted that as per the respondent No.1 he was working as a Plumber in Laxmi Nagar, Delhi and earning Rs.8,000/- per month from the said occupation. The Tribunal, however, noted that he did not file any documents to show that he was a trained Plumber or was earning Rs.8,000/per month. In the absence of any such material the Tribunal assessed the income based on the income an unskilled worker under the Minimum Wages Act which on the relevant date was Rs.5,280/- per month. The Tribunal added future prospects by 50% on the said amount.
4. Keeping into account the fact that the deceased was 31 years of age the Tribunal assessed his functional disability at 40% and accordingly assessed loss of income for future earnings on account of disability at Rs.6,08,256/-.
5. Learned counsel appearing for the appellant submits that there is no material on record to show that the appellant was working as a Plumber. He submits that in his affidavit by way of evidence also he has given his UP address but states that he is now presently residing in New Sanjay Amar Colony, Delhi-32. He further states that the Rent Agreement placed on record is of the date after the date of the accident. Hence, he submits that the proper assessment of income of claimant should be based on the minimum wages applicable to UP and not to Delhi as taken by the Tribunal. He also submits that there is nothing on record to show the kind of work being done by the appellant. Hence after having assessed the income based on minimum wages at Delhi, future prospects should not have been added. It is lastly submitted that compensation under the non pecuniary heads is on the higher side.
6. A perusal of the affidavit of PW-1/Respondent No.1 shows that he clearly states his address as New Sanjay Amar Colony, Delhi-32. There is no cross-examination of PW-1 on this affidavit by way of evidence except for stating that he has made false submissions.
7. The statement of PW-1 was also recorded by the Tribunal. In the said statement before the Tribunal he has clearly stated that he is residing at New Sanjay Amar Colony.
8. Even otherwise, in my opinion, it is common knowledge that a Plumber would normally not have any proof of his employment. Most plumbers who do freelancing work have learnt their skills by working under some other senior plumber and receive their income in cash. Merely because there is no documentary evidence to prove his income would not ipso facto indicate that there is any infirmity in the statement of respondent No.1 made before the Tribunal. A skilled plumber in any case would easily earn the assessed income of Rs.5,280/- per month. In the light of these facts and circumstances there is no reason to disagree with the findings recorded by the Tribunal.
9. Coming to the issue of future prospects. I can take judicial note of the fact that minimum wages for an unskilled worker in 2002 were Rs.2679.70/- P.M. and in 2012 were Rs.7020/- P.M. It is obvious that the prescribed minimum wages have more than doubled in ten years.
10. In case of Rajesh & Ors. vs. Rajbir Singh & Ors.,., (2013) 9 SCC 54 the Supreme Court held that in the case of self employed or those on fixed wages, when the victim is below 40 years an addition of 50% should be made in the wages for the purpose of computing loss of future earnings.
11. In the case of Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505, the Supreme Court was of the view that in the case of self employed or those engaged on fixed wages, 30% increase in income over period of time would be appropriate. In the case of V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the Supreme Court in the case of injury to a student who was studying in Class XI aged 16 years had awarded 50% increase for future prospects.
12. Further, this court in the case of ICICI Lombard General Insurance Company vs. Angrej Singh & Ors. in MAC APP. 846/2011 in judgment dated 30.09.2013 had gone into this issue and had noted the judgments of the Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr.(supra), Reshma Kumari & Ors. vs. Madan Mohan & Anr.(supra) and other judgments and concluded that the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54 has held that the future prospects should be given to persons who are self-employed or on fixed wages. This court further held that there is no conflict in the legal position as set out in the judgments of Reshma Kumari & Ors. vs. Madan Mohan & Anr(supra) and Rajesh & Ors. vs. Rajbir Singh & Ors. (supra).
13. I may further note that this court in MAC APP.761/2012 Rakesh and Ors. vs. National Insurance Co. Ltd. and Ors. vide judgment dated 02.04.2014 had in a case where the deceased was 24 years old added 50% to the income towards future prospects for computing loss of dependency based on the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors.(supra). Against the said judgment the appellant had filed an SLP before the Supreme Court. The said SLP No.5612/2014 was dismissed by the Supreme Court on 10.10.2014.
14. Regarding non pecuniary damages the Tribunal has awarded Rs.1,50,000/- for pain and suffering, Rs.1,50,000/- for loss of amenities and enjoyment of life and Rs.1,00,000/- towards disfigurement and loss of expectancy of life. Reference may be had to the Rajesh & Ors. vs. Rajbir Singh & Ors.(supra), V. Mekala vs. M. Malathi & Anr 2014 ACJ 1441 and Smt. Savita vs. Bindar Singh & Ors. (2014) 4 SCC 50. There is no infirmity in the said grant.
15. In the light of the above, there is no merit in the present appeal. Same is dismissed. The statutory amount deposited by the appellant at the time of filing the appeal be refunded to the appellant. The appellant may comply with the Award expeditiously.
JAYANT NATH, J DECEMBER 23, 2014 N