Full Text
HIGH COURT OF DELHI
Date of Decision: 27th November, 2024
Sandeep Kumar .....Appellant
Through: Mr. Siddhant Jaiswal, Advocate.
Through: Mr. Manu Luv Shahalia, Advocate for R-2.
National Insurance Co. Ltd. .....Appellant
Through: Mr. Manu Luv Shahalia, Advocate
Through: Mr. Siddhant Jaiswal, Advocate for R-1.
JUDGMENT
1. The Appeal, MAC.APP. 231/2024, under Section 173 of the Motor Vehicles Act, 1988 has been filed by the Appellant Sandeep Kumar seeking enhancement of compensation, granted in the sum of Rs.35,09,438/- along with interest at the rate of 8% per annum, vide Award dated 14.12.2023.
2. The claim of the Appellant is that he had suffered Permanent Disability of 90% on account of injuries, in an accident on 16.05.2018. The grounds on which enhancement of compensation is sought, are as under:-
(i) that the injured had suffered permanent disability of 90% but the functional disability has been taken only as 50%;
(ii) no compensation has been granted for loss of future prospects;
(iii) the compensation under the Non-Pecuniary Heads, is inadequate.
3. Learned counsel on behalf of the Insurance Company submits that the learned Tribunal has passed a reasoned order and does not warrant any interference.
4. In the Cross Appeal, MAC.APP.165/2024, Insurance Company has challenged the grant of compensation on the following grounds:-
(i) that the injured was not having any valid driving license to drive the vehicle and is, therefore, responsible for contributory negligence; and
(ii) that there was a delay of 140 days in registration of FIR which creates a doubt about the accident itself;
5. The learned counsel on behalf of the Respondent/injured has explained that the delay has been appropriately considered by the Tribunal which has passed a reasoned Order and no interference is warranted on these aspects. It is further submitted that he was having a valid driving license, which has been placed on record along with the requisite Application.
6. Submissions Heard. Functional Disability:
7. The first aspect which needs re-appreciation is the quantum of compensation that has been assessed by the learned Tribunal. The first ground of challenge is that the permanent disability suffered by the injured, Sh. Sandeep Kumar, was 90% but his functional disability has been taken as 50%.
8. The injured in his testimony as PW-1 has deposed that he was earlier working as a Data Entry Operator but because of the permanent disability to the extent of 90% of right upper limb, he has been now doing the job of MTS in the same office. He though admitted that his salary has increased by 5% per year, though it may not increase every year. It is further deposed by him that the permanent disability has impacted his future career prospects.
9. As per the testimony of the injured himself, he is continuing to do a regular job though of a different nature and has been getting same salary which is getting enhanced on a regular basis. It is quite evident that though he has suffered a permanent disability, but his salary has not been impacted.
10. The learned Tribunal after due consideration of the circumstances and the evidence of PW-1, has rightly assessed the functional disability of overall body to the extent of 50% and does not merit any interference. Salary incorrectly Taken as per Minimum Wages:
11. The next ground on which the enhancement is sought is that the salary of the injured has been incorrectly calculated as per minimum wages, despite his producing the requisite documents.
12. The injured has asserted that he was earning Rs. 20,000/- per month while working as a Data Entry Operator.However, no document in proof of his monthly income has been filed. He has relied on his 10th Class Matriculation certificate, Ex. PW-1/7. In addition, he has proved his Certificate issued by Web Net Infotech, Ex. PW-1/8 certifying that he has done a Masters Diploma in Computer Information & System Management. He has also filed the Experience Certificate dated 16.07.2014 issued by Directorate of Family Welfare, Govt of NCT of Delhi certifying that he had been working on the post of Data Entry Operator. He has filed the Joining Report dated 07.11.2017, Ex. PW- 1/9 whereby he has joined his duties in the Department of Family Welfare, GNCTD which is supported by the Office Order of NCT of Delhi dated 20.03.2018 and the Joining Letter is dated 01.04.2018.
13. From the documents relied upon by the injured and his testimony, it is evident that he had a Diploma in Computer Applications and that he was working but there is nothing on record to prove his actual salary.
14. The learned Tribunal has rightly taken the salary of the injured as Rs.18,332/- on the basis of Minimum Wages as is payable to a graduate on 16.05.2018 in Delhi. The income of the injured has been rightly calculated and does not warrant any interference. Loss of Future Prospects:
15. In view of the finding qua functional disability, the ld. Tribunal has calculated the loss of future prospects at the rate of 40%, the Appellant has been rightly held entitled to 40% towards the Future Prospects in the light of the Judgment of this Court in Bajaj Alliance Gen. Insurance Co. Ltd. vs. Rajeshwar Prasad & Ors., MACA 858/15, decided on 19.07.2017 and Faiyaz Ahmad Khan vs. Chandra Pal Singh & Ors, MACA No. 351/17, decided on 08.08.2017.
16. The finding of the ld. Tribunal does not merit any interference. Non-Pecuniary Heads: Loss of Marriage Prospects:
17. The grievance of the injures is that no compensation has been granted on account of Loss of Marriage Prospects as he was 31 years old at the time of accident and was unmarried. Considering his age and the kind of disability and also that it is an accident of 2014, he is granted Rs.75,000/- as Loss of Marriage Prospects.
18. The compensation is, therefore, re-calculated as under:- Total Compensation awarded to the Claimant: - Rs. 35,09,438/- Modification qua Marriage Prospects: - Rs. 75,000/- Total Compensation: - Rs. 36,00,000/- (rounded off)
19. The Compensation granted to the Injured, is enhanced to Rs. 36,00,000/- along with interest @ 8% per annum. Appeal of the injured is accordingly allowed and disposed of. Cross Appeal - MAC.APP. 165/2024:
20. The first grievance of the Insurance Company is that injured has to be held responsible for contributory negligence as he was not holding any valid driving licence to drive the vehicle.However, the injured had proved his driving license Exh.PW-1/6 and, therefore, the ground of challenge taken by Insurance Company is not tenable.
21. The second ground of challenge is that the FIR was registered after 140 days of the accident. Pertinently, the accident took place on 16.05.2018 while the FIR was registered on 04.10.2018. In the FIR Ex. PW-1/2 (collectively) it has been mentioned by the complainant, Sh. Ashish, s/o Sh. Dharampal that his brother had met with an accident on 16.05.2018 but they had gone to Delhi for the treatment of the injuries and were not able to get the FIR registered till 04.10.2018.
22. Pertinently, Medical Record has been filed which corroborates that the injured had suffered injuries on 16.05.2018 which corresponds to the date of accident. Even though there may have been delay in registration of FIR, but the factum of accident is not under challenge and is fully corroborated by the other documents. Moreover, the FIR No. 1446/2018, the certified copy which is collectively Ex. PW-1/2, and the charge sheet filed, Ex. PW1/1(Colly.), also corroborates not only that the accident occurred due to rash and negligent driving of the offending vehicle by its driver but also confirms the incident of the accident. There is sufficient explanation for delay of the FIR and thus, the finding of the learned Tribunal warrants no interference on this ground.
23. There is no merit in the Appeal of the Insurance Company, which is hereby dismissed. Relief:
24. In view of the above, the Claimant are awarded total compensation of Rs. 36,00,000/- along with interest @8% per annum from the date of filing of the petition till realization. The Insurance Company is directed to deposit the Awarded amount within 30 days with the learned Tribunal, which shall be disbursed in terms of the Award dated 14.12.2023. The statutory amount deposited on behalf of the Insurance Company be returned in accordance with law.
25. The Cross Appeal of the Insurance Company is dismissed.
26. With aforesaid directions, the Appeals are accordingly disposed of.
JUDGE NOVEMBER 27, 2024