Full Text
HIGH COURT OF DELHI
Date of Decision: 11th December, 2024
THE ORIENTAL INSURANCE CO. LTD.
Through its Delhi Regional Office-I F-14, Connaught Circus, New Delhi-110001. .....Appellant
Through: Mr. A.K. Soni, Advocate.
JUDGMENT
1. RAHUL SHARMA S/o Sh. Deen Dayal R/o Q.No.12, Type-II, Police Colony, Vasant Kunj, New Delhi-110070.
2. KUSHAVEER MANDAL S/o Sahdeo Mandal R/o village Pachora, P.s. Bajpatti, Distt. Sitamarchi, Bihar.
3. PARAMJEET SINGH R/o 398, Behra Enclave, Paschim Vihar, Delhi.
4. M/S G.S. ENTERPRISES 2970, Shalimar Park Ext. Bhola Nath Nagar, Shahdara, Delhi-110032......Respondents Through: Mr. Aniket Tomar, Advocate for R-1. CORAM: Digitally HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (Oral)
1. An Appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed against the Award dated 05.05.2018 whereby the Respondent/injuredRahul Sharma, has been granted compensation in the sum of Rs.14,54,005/- along with the interest @9% per annum on account of injuries suffered by him in an accident on 12.10.2011.
2. The Insurance Company/Appellant has challenged the impugned Award on the following grounds: i. that the Permanent Disability was 34%, but the injured has not suffered any Loss of Income and therefore, the Functional Disability has been erroneously taken as 20%; and ii. that as per Salary Slip, there is Conveyance Allowance of Rs.800/-, Special Allowance of Rs.200/- and Incentive of Rs. 5,550/- which needs to be deducted while calculating the actual salary. Moreover, there is no deduction on account of Income Tax.
3. Submissions heard and record perused.
4. Briefly stated, on 12.10.2011 at about 13:30 hrs, the Respondent No. l /Claimant Rahul Sharma was going to his office on his motorcycle bearing No.DL-3T-CS-2575 via Andrews Ganj with his sister Neha sitting as a pillion rider. When they reached opposite Safdarjung Hospital, the offending vehicle/truck bearing No. DL-lGB-3184 driven by the driver/Respondent No. 3, came at a high speed and in a rash and negligent manner, hit the motorcycle from behind.The motorcycle fell and they sustained grave Digitally injuries and were taken to JPN Apex Trauma Centre.
5. The vehicle truck BearingNo. DL-lGB-3184 was owned by Respondent No. 4 and insured with the Appellant.
6. The FIR No. 272/2011 u/s, 279/338/304A IPC 1860 was registered against the Driver/Kushaveer at P.S. S.J. Enclave. The Charge Sheet was filed before the ld. Metropolitan Magistrate. The Detailed Accident Report along with the corresponding documents, was also filed before the Ld. Tribunal.
7. Vide the Impugned award dated 05.05.2018 the Learned Tribunal awarded a sum of Rs. 14,54,005/- along with interest @9% per annum in favor of the Claimant. Loss of Future Income due to Disability: - Income of the Injured: -
8. The Claimant/ injured- Rahul Sharma in his Affidavit of Evidence as EX. PW1/A deposed that at the time of the accident, he was 25 years old and after graduating from IIM, Jaipur in B. Sc. Hotel Management he was gainfully employed with “I World” as Team Leader and was drawing a total salary of Rs. 35,550/-.
9. The Salary Slip- Ex. PW1/Z3(Colly) for the Month of August, reflects his Gross earning as Rs. Rs. 30,550/- (inclusive of Rs. 16,000/- basic pay+ Rs. 8,000/- HR+ Rs. 800 Conveyance allowance + Rs. 200/- Special Allowance+ Rs. 5,550/- Incentive). The Salary Slip for the Month of September, 2011 is in the sum of Rs. 25,000/-(inclusive of Rs. 16,000/- basic pay + Rs. 8,000/- HR+ Rs. 800 Conveyance allowance + Rs. 200/- Special Digitally Allowance).
10. The Ld. Tribunal has rightly taken the monthly salary as Rs. 25,000/considering the Incentive of Rs. 5550/- is a variable amount. However, the argument of the Insurance Company is that the amounts under the additional perks/benefits arealso liable to be deducted,is not tenable as this is not a death case where the Loss of dependency has to be calculated or it is to be ascertained whether the benefit of the perks would go to the legal heirs or would have been individually consumed. This is an injury case where the injured person would continue to avail all these amounts. Hence, the Ld. Tribunal has rightly not deducted these amounts while calculating the income.
11. However, the Income tax was liable to be deducted which has not been done and thus, the total Income p.a. is re-calculated as: - Rs. 25,000/- X 12 = Rs. 3,00,000 - Rs. 1,400 = Rs. 2,98,600/- p.a. Functional Disability: -
12. As per the Certificate dated 08.10.2012 by the Medical Board of AIIMS, the Claimant/ injured had suffered 51% temporary physical impairment in relation to Lower extremity. He again got himself assessed by the Medical Board at Pt. Madan Mohan Malviya Hospital and vide Report dated 20.08.2016 the Board he has suffered has 34% permanent disability in relation to his Pelvis and Both Lower Limbs.
13. Pertinently, the claimant was a graduate in Hotel Management from IIM, Jaipur and was employed with a company "I World" and evidently his job appears to be of such a nature that he has to sit as well as move around. Digitally Therefore, he would face difficulty in executing his day-to-day work due his reduced mobility.
14. To support the same, PW2/Dr. Mhd. Jamshed has deposed that due to the disability, though the claimant would be able to walk drive and run, he would not be able to squat,kneel or sit cross-legged.
15. Thus, the Tribunal has rightly assessed the functional disability as 20% observing that though the injury has not rendered the injured completely disabled as he can continue to work, however, the injury would evidently pose challenges while he is at work.
16. The same warrants no interference. Conclusion: -
17. Thus, the Total Loss of future Income is re-calculated as Rs. 10,15,240/- rounded off to Rs. 10,16,000/-. [ i.e. 2,98,600 x 17 x 20/100 = Rs. 10,15,240/-] Relief: -
18. The modified compensation is encapsulated as under: -
1. Total Loss of Income Rs. 1,55,833/- Rs. 1,55,833/-
2. Medical Expenses Rs. 1,98,172/- Rs. 1,98,172/-
3. Pain and Suffering and Disfigurement Rs. 60,000/- Rs. 60,000/-
4. Conveyance Charges and Special Diet Rs. 20,000/- Rs. 20,000/- Digitally
5. Loss of Future Income Rs. 10,20,000/- Rs. 10,16,000/- TOTAL COMPENSATION Rs. 14,54,005/- Rs. 14,50,005/-
19. Thus, the total compensation granted to the Claimants is re-calculated as Rs. 14,50,005/-along with interest @9% per annum from the date of the Claim till the disbursal of the amount, in terms of the Impugned Award dated 05.05.2018 of the learned Tribunal.
20. The excess amount, if any be returned to the Insurance Company, along with the corresponding interest as well as Statutory deposit, in accordance with Rules.
21. The Appeal stands disposed of along with the pending Application(s), if any.
JUDGE DECEMBER 11, 2024 Digitally