Full Text
HIGH COURT OF DELHI
Date of Decision: 26th November, 2024
RAJENDRA PRASAD
S/o Sh. Achchhe Lai R/oH. No. 81, Floor, Khizarabad Village
New Delhi .....Appellant
Through: Mr. Varun Sarin and Ms. Parul Dutta, Advocates.
JUDGMENT
1. RAKESH SINGH S/o Sh. Dipty Singh R/o Village Nagia Kaji P.O./P.S. Sakit Distt. Etah, U. P......Driver /respondent No.1
2. DAKSHIN DILII SWACHH INITIATIVES LTD. At 28, Dr. Gopal Das Bhawan 4th Floor, Bharakhamba Road, Delhi......Owner/Respondent no. 2
3. THE NEW INDIA ASSURANCE COMPANY LTD. 12/1, Jeevan Raksha Building, Asaf Ali Road, New Delhi.....Insurer /Respondent No.3 Through: Mr. Rakhi Dubey and Mr. Thakur Nishant Kumar, Advocates. CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (oral)
1. The Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed against the judgment dated 16.05.2020 in MACT No.380/2018 whereby the Appellant, Rajendra Prasad/injured has sought enhancement of compensation granted in the sum of Rs. 13,48,195/-.
2. The grounds on which the enhancement has been sought are under:-
(i) that the Appellant was driver by profession and had suffered permanent disability of 69% of right lower limb. The functional disability has been taken as 35% and in fact it should have taken as 100%;
(ii) the income of the claimant has been taken as per Minimum
Wages for an unskilled worker. He was a driver by profession and was getting Rs.18,500/- per month,and while making the legal offer, the income of the claimant as Rs.18,500/- was accepted by the Insurance Company;
(iii) the future prospects at the rate of 15% with a multiplier of 11
(iv) that the treatment of the Appellant continued for one year but he has been granted a loss of income for a period of six months; and
(v) the compensation under Non-pecuniary Heads needs to be enhanced.
3. Learned counsel on behalf of the Insurance Company has argued that there is no document produced on record to show that the Appellant was a driver by profession. Furthermore, the Salary Slip in original, has not been produced and the Passbook has not been proved.The learned Tribunal has rightly taken the income of the claimant as per Minimum Wages for an unskilled worker.
4. It is further argued that having regard to the treatment record, the learned Tribunal has rightly granted loss of income for a period of six months. It is stated that no interference in the impugned Award is warranted.
5. Submissions Heard and Record perused.
6. Briefly stated, the Petitioner/Appellant/Injured on 31.10.2017 at about 08:25 am, was going on his Motorcycle bearing No. DL-3SCH-2778 from Lajpat Nagar to his House in Khizrabad Village, New Delhi.When he reached near HP Petrol Pump, Mathura Road, New Delhi, the offending truck bearing No. DL-IGC-6937, which was being driven by its driver Mr. Rakesh Singh, in a rash and negligent manner, came from behind and hit the motorcycle with full forcebecause of which he fell and sustained grievous injuries.
7. FIR No. 334/17 under Section 379/338 of the Indian Penal code(hereinafter referred to as ‘IPC’), was registered at P.S. New Friends Colony.The DAR was filed in the Court.
8. The learned Tribunal vide the impugned Award dated 16.05.2020, granted compensation in the sum of Rs.13,48,195/- along with interest @9% p.a. Assessment of Functional Disability: -
9. The first grievance of the Appellant/Injured is that he was a driver by profession, who had suffered Permanent Disability of 69% of right lower limb; however, his Functional Disability has been taken as 35% instead of 100%.
10. The Permanent Disability Certificate, Ex.PW-1/E by Pt. Madan Mohan Malaviya Hospital, Govt. of NCT of Delhi, Malviya Nagar, New Delhi-110017, proves that the injured had suffered 69% of Permanent Disability in relation to his right lower limb. As per the testimony of the Appellant as PW-1, he was working as a driver with M/s Valueline Softech Pvt. Ltd., New Friends Colony, as a driver on a monthly salary of Rs.18,500/per month. He deposed that since he is under medical treatment, he has not been able to work.
11. The first pertinent aspect is whether the Petitioner being a driver by profession, having suffered 69% of Permanent Disability of right lower limb, entitles him to a Functional Disability of 100%, in the light of his profession.
12. Pertinently, the Appellant in his testimony as PW-1 has merely deposed that he has not been able to resume his duties. He,aside from producing the Permanent Disability Certificate, has not whispered even a word about him having been impaired in continuing to work as a driver.Pertinently, the accident took place on 31.10.2016.He has placed on record copy of his Passbook along with his Salary Certificate, Ex.PW-1/D, which shows that the salary @Rs.18,500/- per month, has been regularly credited to his account till March, 2018. His own document belies his testimony that he has not been able to resume his work as the driver.
13. In the circumstances, the finding of the learned Tribunal, who has taken the Functional Disability as 35% to effect his earning capacity, is not subject to any revision. Assessment of Salary: -
14. The second ground which has been taken on behalf of the Appellant, is that even though, he has produced his Salary Certificate, Ex.PW-1/D, which is supported by the entries in his Passbook, but his salary has been assessed as per the minimum wages for unskilled worker in Delhi, as Rs.13,350/-.However, in the light of the Salary Certificate duly supported by the Passbook and also his driving license, it is proved that he was a driver by profession and his salary should have been taken as Rs.18,500/-. The compensation is accordingly re-calculated as under:- Rs. 18,500/- X 35/100 X 12 X 11 = Rs. 8,54,700/- (rounded off). Future Prospects:
15. The Appellant was 51 years old at the time of accident. The Loss of Future Income has been taken as 35%. The Insurance Company has taken the plea that the Loss of Future Income has been calculated @35% while in the light of the Judgment of Pranay Sethi, it should have been taken as 15% considering that the Appellant was 51 years old. However, no Cross-Objections have been filed on behalf of the Insurance Company and therefore, this contention is not tenable. Loss of Income during the Treatment Period: -
16. The next ground taken is that his medical treatment had continued for about one year while he has been granted Loss of Income for a period of six months. It cannot be overlooked that as per his own passbook, he was getting a regular salary. The learned Tribunal has rightly granted the compensation for six months, which cannot be faulted. The same is calculated in view of the revised Salary as under:- Rs. 18,500 X 6 = Rs. 1,11,000/-. Compensation on account of Non-Pecuniary Heads: -
17. Lastly, it is asserted that the compensation on account of Non-Pecuniary Heads is inadequate. The Petitioner had suffered Permanent Disability of 69% of right lower limb and had remained under prolonged treatment. Therefore, the compensation for Mental and Physical Shock, as well as, for Pain and Suffering, is enhanced to Rs.75,000/- each from Rs.50,000/- each. The Loss of Amenities of Life has been fairly granted in the sum of Rs.2,00,000/- and disfiguration of Rs.1,00,000/-, which do not warrant any interference.
18. The compensation is accordingly re-calculated as under:-
11. Pecuniary Loss:
(i) Expenditure on treatment
(ii) Expenditure on conveyance
(iii) Expenditure on special diet
(iv) Cost of nursing/attendant
(v) Loss of earning capacity
(vi) Loss of income Rs.80,100/- Rs. 1,11,000
(vii) Any other loss which may require any special treatment or aid to the injured for the rest of his life.
NIL NIL
12. Non-Pecuniary Loss:
(i) Compensation for mental and physical shock
(ii) Pain and suffering Rs.50,000/- Rs.75,000/-
(iii) Loss of amenities of life
(iv) Disfiguration Rs.1,00,000/- Same
(v) Loss of marriage prospects
NIL NIL
(vi) Loss of earning, NIL NIL inconvenience, hardships, disappointment, frustration mental stress, dejectment and unhappiness in future life etc.
13. Disability resulting in loss of earning capacity:
(i) Percentage of disability assessed and nature of disability as permanent or temporary 69% permanent physical impairment 69% permanent physical impairment
(ii) Loss of amenities or loss of expectation of life span on account of disability Already granted Already granted
(iii) Percentage of loss of earning capacity in relation to disability
35% 35%
(iv) Loss of future income- (income x percentage earning capacity x multiplier)
14.
19. In view of the above, the Claimant are awarded total compensation of Rs. 17,20,000/- along with interest @9% per annum from the date of filing of the petition till realization. The Insurance Company is directed to deposit the enhanced Awarded amount within 30 days with the learned Tribunal, which shall be disbursed in terms of the Award dated 16.05.2020.
20. The Appeal is disposed of accordingly.
JUDGE NOVEMBER 26, 2024 rk/RS