The New India Assurance Co Ltd v. Sunil Bajaj

1. These cross-appeals have been filed challenging the impugned award dated 14th August 2014 passed by the Motor Accident Claims Tribunal, Central-District, Tis Hazari Courts, Delhi (‘MACT/Tribunal’), where the Tribunal awarded a compensation of Rs. 10,74,773/- along with interest @ 9% per annum to the injured-claimant (Mr. Sunil Bajaj).

2. MAC.APP. 888/2014 has been filed by the Insurance Company seeking reduction of the compensation, whereas MAC.APP. 538/2016 has been filed by the claimant seeking enhancement of compensation.

3. The accident occurred on 3rd January 2010 at about 08.15 p.m. near New Delhi Railway Station Bus Stand, near Pahar Ganj, when the claimant, Mr. Sunil Bajaj, along with his wife and 6-year-old son, were riding on the scooter, the offending vehicle being driven by respondent no.1 at high speed while overtaking an auto from the railway station side, struck the scooter, as a result of which claimant sustained various injuries.

4. The doctor certified 35% permanent disability in relation to the claimant’s right lower limb, pursuant to which a claim for compensation was filed, resulting in the impugned award.

5. On the basis of the submissions of Mr. JPN Shahi, counsel for the Insurance Company and Mr. Anuj Jain, counsel for the respondent, the following issues arise for determination: i. Considering that the injured was admittedly 29 years of age on the date of the accident, future prospects, as per principles enunciated in National Insurance Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680, ought to be granted at 40%. ii. While the MACT considered notional income at Rs.11,000/- per month based on the evidence filed by the employer of the injured-claimant, the Insurance Company contends that it should be taken as minimum wages. For this, the testimony of PW[3], Office Assistant, Classic Diamond Trade Mark Pvt. Ltd., where the claimant was working, has to be taken into account, as well as the testimony of PW[1], the claimant himself. The claimant, in his testimony, stated that he was working as an Office Assistant in M/s. Classic Diamond Trade Mark Private Limited and was engaged in field work. In this regard, Salary Certificate dated 25th April 2011, exhibited as Ex. PW3/A, has to be seen, which notes that the claimant was getting Rs.11,000/- per month as salary and had worked till the date of the accident. Considering the testimony of PW[3] and PW[1] and its corroboration with Ex. PW3/A, there is no reason why the assessment of the MACT should be displaced. Accordingly, Rs.11,000/- shall be taken as the notional income. iii. Issue of contributory negligence has been raised by the Insurance Company, on the grounds that it was a head-on collision and that the claimant was negligent in driving his vehicle on the central part of the road, which resulted in the collision. However, in this regard, the testimony of the injured claimant in cross-examination is relevant, wherein he stated that he was returning from his in-laws’ house with his wife and 6-year-old child and was not carrying any luggage except a small bag, and that he was driving at a normal speed despite heavy traffic on the road. The site plan, which forms part of the Trial Court Record, has been perused by this Court and is extracted as under: iv. It is apparent that since the collision occurred at point ‘A’, the claimant was on the right side of the fairly broad road, and there was no question of any contributory negligence on their part. Moreover, the issue had not been specifically taken up in the written statement by the Insurance Company before the MACT and, therefore, was not possibly dealt with by the MACT in the impugned award. v. The issue of functional disability has to be considered, which has been taken at 17.5%, while permanent disability has been certified at 35%. Mr. Jain contends that it is quite inadequate, considering that the claimant was engaged in fieldwork at that time and would be highly restricted in his vocation. Applying the principles of Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, it would have to be examined whether the fractures resulting in 35% disability in the right lower limb would render the claimant incapable of pursuing any other vocation, even if field work was no longer possible. Relevant paragraphs of Raj Kumar (supra), in this respect, are extracted as under:

6. Accordingly, compensation is re-computed as under: Sr. No. Heads Awarded by the Tribunal Awarded by this Court PECUNIARY LOSS

1. Expenditure on Medical Bills and medical treatment (A) Rs. 33,723/- Rs. 33,723/-

2. Expenditure on conveyance (B) Rs. 10,000/- Rs. 10,000/-