THE ORIENTAL INSURANCE CO. LTD. v. NAVEEN SEHRAWAT & ORS.

1. This appeal has been filed assailing judgment dated 02nd November 2019 passed by the Motor Accidents Claims Tribunal (‘MACT’) South East District, Saket Courts, in MACT No. 4488/2016.

2. On 19th January 2021, when the notice was issued in the appeal, counsel for appellant contended that in light of Section 167 (1) of Motor Vehicles Act (‘MV Act’), liability of the Insurance Company is not to exceed the liability arising under Workmen's Compensation Act, 1923, in respect of death or bodily injury to an employee, if the employee was engaged as a conductor on public service vehicle and the injury is sustained in the course of his employment.

3. The accident occurred on 24th May 2015 at about 09.00 a.m., when the claimant, who was employed as a conductor, was assisting the driver in parking the bus bearing registration No. DL-1PB-9015 (‘offending vehicle’). The offending vehicle, driven by Subhash, hit the claimant, and his left leg came under its front wheel, causing grievous injuries. He was immediately admitted to the hospital, where his left leg had to be amputated below the knee.

4. According to the Disability Certificate, the claimant suffered 60% permanent disability on account of the below-knee amputation of his left leg. The MACT, after considering the evidence, particularly the testimony of the injured claimant and that the driver of the offending vehicle had not entered the witness box, drew an adverse inference against him.

5. Moreover, the charge-sheet was also filed under Section 279/337/339 of Indian Penal Code, 1860 (‘IPC’). Accordingly, on the touchstone of preponderance of probabilities, the MACT concluded that the accident had occurred due to the rash and negligent driving of the offending vehicle.

6. The driver had been arrayed as respondent no. 2 in this appeal; however, he has since passed away.

7. Counsel for appellant, Mr. S.P. Jain, who was at that stage, did not wish to file an application to bring on record the legal heirs of respondent no. 2. This submission of counsel for appellant was noted in order dated 01st September 2022. Consequently, respondent No. 2 was deleted from the array of parties, and an amended Memo of Parties was filed. In these circumstances, recovery rights sought by the appellant cannot be granted. The plea of the appellant/Insurance Company is, therefore, unsustainable.

8. The second contention of the appellant, based on the Workmen's Compensation Act, 1923, is also devoid of merit. Section 167 of the MV Act merely confers an option upon a person entitled to compensation to claim compensation either under the Motor Vehicles Act or under the Workmen's Compensation Act, 1923, but not under both enactments.

9. There is nothing on record to state that the compensation was given under Workmen's Compensation Act 1923; therefore, this issue cannot be sustained.

10. The Insurance Company has further contended that the assessment of claimant's functional disability at 30% is erroneous in view of the compensation awarded towards the cost of an artificial limb, as the prosthesis would reduce the impact of the physical disability. This submission is also untenable. The use of a prosthetic limb does not diminish or dilute the consequences of the amputation for the purpose of assessing functional disability or determining the loss of future earning capacity. In fact, despite the claimant having suffered 60% permanent disability, the MACT assessed his functional disability at only 30%, which, in the opinion of this Court, cannot be said to be excessive or unreasonable. Therefore, the MACT was not amiss in assessing the functional disability at 30%.

11. The Court has perused the award of the MACT and finds that the cost of the artificial limb was given on the basis of quotation given by PW-2 from Endolite India Ltd and considering the application it is a conservative amount which has been awarded.

12. The other components of compensation on pecuniary loss and non-pecuniary loss seem to be proportionate and adequate.

13. The plea of the Insurance Company for any reduction in these circumstances is completely unmerited.

14. Vide order dated 19th January 2021, this Court directed appellant to deposit the entire awarded amount with the Tribunal and directed release of Rs. 10,00,000/- of the deposited amount besides interest as awarded in accordance with the scheme of disbursal. Subsequently, vide order dated 28th July 2021, the amount was directed not to be kept in fixed deposit and be released to the claimant.

15. Accordingly, the balance amount along with accrued interest be released to the claimant in terms of the directions of the Tribunal in the impugned award.