Full Text
HIGH COURT OF DELHI
Date of Decision: 06th December, 2024
RAJENDER SINGH .....Appellant s/o Late Dalip Singh
R/o Vill. & P.O. Khaira Near Chandra Gas Agency
Najafgarh, New delhi-110043
Through: Mr.H.S.Yadav and Mr. Arun Yadav, Advocates.
JUDGMENT
1. BAJAJ ALLIANZ GENERAL INSURANCE CO LTD Plot No. 7, 3rd Floor, Krishna Bhawan Janakpuri, New delhi-110058.....Respondent No. 1
2. JAI BHAGWAN (Driver) S/o Sh. Jage Ram R/o 13, Vill. & P.O. Pandwala Kalan Najafgarh, New delhi-110043.....Respondent No. 2
3. RAVINDER (Owner) S/o Sh. Girver Singh R/o H. No.736, Vill & P.O. Kapashera, New Delhi.....Respondent No. 3 Through: Ms. Suman Bagga, Advocate for R-1. CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (oral)
1. The present Appeal under Section 173 of the Motor Vehicles Act, 1988has been filed by the Appellant/Injured, Sh.Rajender Singh, aged 56 years, for enhancement of the compensation granted in the sum of Rs.8,90,500/- along with interest @ 9% per annum,vide Award dated 19.03.2019.
2. The grounds on which enhancement is sought are as under:-
(i) that Appellant had suffered Permanent Disability of 66%, but his functional disability has been taken as 33% when in fact it should have been 100%;
(ii) that Minimum Wages for unskilled worker have been considered when in fact he was an agriculturist and, wages as per Skilled Worker must be taken;
(iii) that the Future Prospects have not been calculated; and
(iv) that the compensation under the Non-Pecuniary Heads, is on the lower side.
3. Learned counsel on behalf of the Insurance Company submits that there was no evidence whatsoever on record that the Petitioner is an Agriculturist. No documents of any Tractor and Khatauni pertaining to Agricultural land, have been filed. Even then merely because he owns a Tractor does not lead to any inference of his being an Agriculturist. The lands have been shown to have been owned by family with no evidence that he himself was working as an Agriculturist. The Minimum Wages for unskilled worker have been rightly taken by the learned Tribunal. The future prospects if at all are to be granted, it is only at the rate of 10%. The compensation under Non-pecuniary Heads has been granted correctly.
4. It is also argued that Permanent Disability was of 66% but there being no evidence of he being an Agriculturist, the Tribunal has rightly assessed the Functional Disability as 33%.
5. Submissions Heard and record perused.
6. Briefly stated on 02.09.2013 the Appellant/Rajender Singh was driving his motorcycle No.DL-9SW 9059 on which Kalicharan was travelling as a pillion rider. When they reached near Krishna Mandir at Khera Village at about 9.30 PM, a Swift car bearing No. DL 1CP 8094 (hereinafter referred to as “Offending Vehicle”) which was being driven by Respondent No.2/Jai Bhagwan in a rash and negligent manner, hit the motorcycle because of which he and the pillion rider fell and sustained injuries.
7. The Petitioner/Appellant was taken to RTRM Hospital and thereafter shifted to Mata Chanan Devi Hospital on 03.09.2013 where he was given treatment. He suffered Permanent Disability of 66% in relation to left lower limb.
8. An FIR No. 290/2013, under Section 279/33 IPC dated 03.09.2013 at P.S.Chhawla, was registered. On completion of investigations,Chargesheet was filed in the Court.
9. The first ground on which enhancement of compensation is sought is that as per the Permanent Disability Certificate Ex.PW-3/A dated 23.10.2017 issued by DDU Hospital, Hari Nagar New Delhi he suffered Post Traumatic Left Knee stiffness with scaring with permanent physical disability of 66% in relation to Left Lower Limb.As per the medical record, Petitioner has suffered compound fracture of both bones left leg. His Functional Disabilitywas assessed as 33% by the Ld. Tribunal.
10. As per his own testimony he was engaged in agricultural activities and was earning Rs.12,000/- per month. Though the Appellant has claimed that on account of physical disability he has been rendered incapable of doing his occupation, but no such evidence has been placed on record.
11. Considering the nature of injuries and the Disability, the learned Tribunal has rightly taken the Functional Disability as 33%.The conclusion of the learned Tribunal does not warrant any interference.
12. The second ground for seeking compensation is that the Minimum Wages for unskilled worker have been taken but considering his profession it should have been taken as that of a skilled worker.
13. The Appellant has claimed that he was an agriculturist, but no cogent evidence of any kind in this regard has been proved. Aside from his bald assertions it is not corroborated by either any document of agricultural land or of any other detail to explain the kind of work he was doing as an Agriculturist. Mere owning of a Truck or land belonging to his family members, was not sufficient to show his personal vocation or that he had been rendered completely incapable of doing any work. The learned Tribunal has thus rightly taken his income as per the Minimum Wages for unskilled worker. There is no ground to interfere in these findings.
14. The third ground sought for enhancement of compensation is that his future prospects have not been calculated.
15. The Apex Court in the case of National Insurance Co. Ltd. v. Pranay Sethi,(2017) 16 SCC 680, observed that “in case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”
16. Likewise, in the case of Mohd. Sabeer @ Shabir Hussain vs Regional Manager, U.P. State Road Transport Corporation, in Civil Appeal NO. 9070-9071 of 2022, Apex Court observed that “it is a well settled position of law that in cases of permanent disablement caused by a motor accident, the claimant is entitled to not just future loss of income, but also future prospects. It has been reiterated by this Court in multiple instances that “just compensation” must be interpreted in such a manner as to place the claimant in the same position as he was before the accident took place.”
17. This view was followed by the Karnataka High Court in Santhosh K.S. vs Dilip Kumar, 2024:KHC:31675, wherein it was observed that future prospects are required to be added even in injury cases.
18. In the instant case the injured was about 56 years old, so the Appellant is entitled to future prospects at the rate of 10%. The compensation is calculated as under: - Income X 10% Future Prospects X 12 X Multiplier Rs.7,722 X 110/100 X 12 X 9 = Rs. 9,17,373.6/-
19. The last ground for seeking enhancement is that the compensation under the Non-pecuniary Heads is on the lower side.
20. The Petitioner has been granted Rs.70,000/- towards Pain and Suffering. Considering the nature of injuries, his treatment and that he has suffered Permanent Disability, the compensation is enhanced to Rs.1,50,000/-.
21. The Loss of Enjoyment of Life and Amenities have been awarded in the sum of Rs.50,000/-. The compensation for Mental and Physical Shock has been granted in the sum of Rs.20,000/- which is in fact a part of Pain and Suffering. No further enhancement in the compensation amount given under this Head is called for.
22. The Conveyance Charges and Special Diet are awarded in the sum of Rs.30,000/- each. In view of the injuries and the disability of the Injured and the fact that injured was hospitalised for 47 days, the Conveyance Chargesare enhanced to Rs.50,000/-.
23. In so far as the Attendant charges are concerned, the compensation has been calculated at the rate of Rs.4000/- for six months. Considering the fact that the inured was hospitalised for about 47 days and in view of the disability, attendant charges are rightly granted for 6 months and does not warrant any interference.
24. No enhancement is directed for Special Diet and Attendant Charges.
25. The compensation is, therefore, recalculated as under:-
1. i. Expenditure on Treatment Rs. 3,41,728/- Same ii. Expenditure on Conveyance Rs.30,000/- Rs.50,000/iii. Expenditure on Special Diet Rs.30,000/- Same iv. Cost of Attendant Rs.24,000/- Same v. Loss of Income Rs.46,332/- Same vi. Any other Loss NIL NIL Non-pecuniary Loss
2. i. Mental and Physical Shock Rs.20,000/- Same ii. Pain and Suffering Rs.70,000/- Rs,1,50,000/iii. Loss of amenities of Life Rs.50,000/- Same iv. Disfiguration NIL NIL v. Loss of Marriage Prospects NIL NIL vi. Loss of earning, inconvenience, hardships, dejectment etc.
3. i. Percentage of Disability 66% Same ii. Loss of amenities NIL NIL iii. Loss of earning capacity 33% Same iv. Loss of future income (Income X %Earning Capacity X Multiplier) Rs.2,77,992/- Same v. Loss of Future Prospects NIL Rs. 9,17,373.6/- TOTAL COMPENSATION Rs.8,90,500/- Rs. 19,10,000/- (rounded off) Relief: -
26. In view of the above, the Claimant is awarded total compensation of Rs.19,10,000/- along with interest @9% per annum from the date of filing of the petition till realization, to be disbursed in terms of the Award dated 19.03.2019. The Insurance Company is directed to deposit the enhanced Awarded amount within 30 days with the learned Tribunal.
27. With aforesaid directions, the Appeal is accordingly disposed of.
JUDGE DECEMBER 6, 2024