Full Text
HIGH COURT OF DELHI
Date of Decision: 5th November, 2024
32402/2022 SBI GENERAL INSURANCE CO LTD .....Appellant
Through: Mr. Sameer Nandwani, Advocate.
Through: Mr. Mayank Khurana, Advocate for R-1 to R-4.
JUDGMENT
1. An Appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed on behalf of the Insurance Company to challenge the Award dated 02.03.2019 whereby compensation in the sum of Rs. 5,53,805/- along with interest @ 9% per annum has been granted to the injured Sh. Balbir (who has since died on 17.10.2017 and is now being represented in the Appeal by his legal heirs).
2. The first ground raised by the Insurance Company to challenge the Award is that there is no evidence on record that the injured Balbir was employed in Delhi, despite which the Minimum Wages of Unskilled Worker of Delhi in the sum of Rs.7722/- per month has been taken to calculate the compensation. The injured was admittedly a resident of Bareilly, U.P. and therefore, the Minimum Wages of U.P. should have been considered for calculating the compensation.
3. The second ground taken is that the injured was a Gratuitous Passenger and therefore, the Insurance Company is not liable to pay the compensation as the terms of the Insurance Policy were violated by the owner of the vehicle.
4. The third ground is that the injured had sustained injuries in the accident on 18.08.2013, but he has died on 17.10.2017 and no compensation is thus, payable. The Future Prospects have been awarded to an Unskilled Person, without there being any cogent evidence.
5. Fourthly, the Loss of Income for complete 50 months i.e. from the date of accident till the date of his death in absence of him sitting idle for the entire period, has been wrongly granted.
6. Fifthly, the compensation under Non-Pecuniary Heads i.e. Funeral Expenses, Loss of Consortium and Loss of Estate have been wrongly awarded as it is a case of injury.
7. Sixthly, the interest rate of 9% per annum, is on the higher side.
8. Submissions heard.
9. Evidently, this calculation is done as per a death case however, it has come on record that the injured had died on 17.10.2017, on account of some other ailment, which was not having any connection with the injuries sustained in the accident. Thus, the compensation needs to be recalculated as per the case of an injury. Gratuitious Passenger:-
10. The first ground of challenge is that injured Balbir Singh was not employed by Respondent No.2, Sh. Gulshan Bir Singh, the owner of the vehicle and he was travelling in the offending truck as a gratuitous passenger, therefore, there is no liability of the Insurance Company to reimburse the injured Balbir Singh in respect of the compensation.
11. Pertinently, the injured, Balbir Singh, had tendered his affidavit of evidence Ex. PW-1/A wherein he had deposed that he was working as a Labour (Loader) in M/s. Sethi Transport, Libaspur, Delhi. On 18.08.2013 after loading the truck as usual, he sat in the said truck which was being driven by Respondent No.1-Sh. Ashish. The driver was driving the truck at a high speed in a rash and negligent manner in violation of traffic rules and norms and because of the high speed it overturned which resulted into the dreadful accident. His left foot came beneath the truck and was badly crushed. He also sustained abrasions, wounds and other injuries all over the body. He was taken to Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi for treatment where his MLC was prepared. The injured was duly cross-examined by the Respondent No.2-Sh. Gulshan Bir Singh, the owner of the offending vehicle. In his cross-examination he reiterated that he has been working with M/s. Sethi Transport since 2008-2009 though he had no documentary proof of the same.
12. At the time of accident, driver/Ashish was with him in the offending truck. He was also confronted with a Compromise Agreement dated 03.09.2013 Ex.PW-1/DA which was entered between the injured and the owner of the vehicle. The witness was also cross examined by the counsel for the Insurance Company wherein he again explained that the truck was fully loaded and he was sitting in the cabin with the driver. There is no suggestion whatsoever given either by the owner or by the Insurance Company that he was not employed with M/s. Sethi Transport or that he was not working as a labour with the said Company.
13. Learned counsel for the Insurance Company has placed heavy reliance on the testimony of Respondent No.2-Gulshan Bir Singh, who had deposed that the injured Balbir Singh was not working in M/s. Sethi Transport, Delhi. In his cross-examination, both on behalf of the injured as well as the Insurance Company, he reiterated that the injured Balbir Singh was never his employee. It cannot be overlooked that there was a compromise entered into between the owner of the truck and the injured. Moreover, there is no denial that the injured was travelling in the cabin with the driver at the time of the accident. There is no cogent rebuttal of the testimony of injured that he was employed with M/s. Sethi Transport since 2008-2009 and was working as a loader.
14. In the light of the testimony of the injured the learned Tribunal was right in holding that he being employed with the owner, Respondent No.2, was travelling in the capacity of a labour in the truck. He was not a gratuitous passenger and thus, the Insurance Company is liable to pay the compensation. Total Loss of Income on Minimum Wages of Delhi:
15. The second ground of challenge is that the injured was not employed in Delhi, despite which Minimum Wages of unskilled worker as applicable in Delhi has been considered for calculating the compensation.
16. Though the injured was admittedly a resident of Bareilly, U.P. but he had clarified in his cross-examination that when he was in employment with M/s. Sethi Transport he used to reside in a night shelter. It is a known fact that there is a huge population which comes to Delhi only for the purposes of gainful employment. Merely because the injured did not have any formal documents to prove his employment, cannot be considered as a ground to disbelieve him especially when no cogent evidence to rebut the testimony of the injured in this regard has been led by the Insurance Company. The learned Tribunal has rightly taken the Minimum Wages of Delhi for calculating the compensation. Future Prospects:
17. The third ground taken by the Insurance Company that the future prospects have been awarded to an unskilled person and that too without any cogent evidence. Since he has expired, this challenge does not subsist.
18. The Petitioner has been awarded a total loss of salary/income for a period of 50 months i.e. the period during which he was alive i.e. from the date of accident till the date of his death.
19. He had deposed Petitioner had deposed that he had suffered serious injury on his left foot and had been taken to Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi for treatment where his MLC was prepared where debridement and dressing was done, however, because his left foot was badly crushed he required plastic surgery and therefore, on the same day was referred to higher Centre for further management. The original Treatment Card is Ex. PW-1/2. Since he was a poor man he went to Safdarjung Hospital for his further treatment where he was treated via OPD Cards. The wounds which were about 5x[1] cm – 8x[1] cm were sutured and regular dressings were done. His OPD Cards are Ex.PW-1/3 Collectively.
20. He thereafter, got his treatment done at a private clinic near his native place, Ramakrishna Mission, Sevashrama, Haridwar, Rishikesh, Dehradun and also at Govt. Doon Hospital, Dehradun, Uttarakhand. His original OPD Cards are Ex.PW-1/4. According to these OPD cards, he remained under treatment till about September, 2014. Subsequently, because of the injuries sustained by him he was unable to ever work thereafter.
21. The permanent disability certificate was issued on 11.08.2016. Disability Ex.PW-1/9 was proved by PW2-Dr. Naresh Chandra who deposed that he was found to be suffering from 30% permanent physical disability in relation to his left lower limb. The permanent disability certificate mentions the age of the injured as 42 years.
22. Thus, he is rightly entitled to the Total loss of income for 50 months, however, without the future prospects i.e. Rs. 7722 p.m. X 50 months = Rs. 3,86,100/-. Non-Pecuniary Heads:
23. Furthermore, the compensation has been granted to the petitioner for medical expenses as Rs.1153/-. Considering the extent of injury even though he took his treatment at Government Hospital, it cannot be overlooked that he would have incurred much more medical expenses and the amount is enhanced to Rs.25,000/-.
24. Loss of Consortium has been granted as Rs.40,000/- which is incorrect as it is not a death case but an injury with permanent disability. Similarly, the parties would not be entitled to Loss of Estate or Compensation for funeral expenses.
25. The compensation under the non pecuniary heads is thus revised as under:-
(i) Pain and Suffering – Rs.75,000/-
(ii) Conveyance and Special Diet – Rs.30,000/- (Rs.15,000/- each)
(iii) Disfigurement – Rs.15,000/-
(iv) Loss of Amenities – Rs.25,000/-
26. The Ld. Tribunal had granted the Compensation amount under the following heads:- S.No. Heads Compensation granted by the Tribunal
1. Income of Deceased (A) Rs. 7722/-
2. Add-Future Prospects (B) 25%
3. Less-Personal Expenses of Deceased (C) NA
4. Monthly loss of Dependency [(A+B)-C=D] NA
5. Annual loss of Dependency (Dx12) NA
6. Multiplier (E) 15
7. Total loss of Dependency NA
8. Medical Expenses Rs. 1,155/-
9. Compensation for loss of Consortium (H) Rs. 40,000/-
10. Compensation for loss of Estate (I) Rs. 15,000/-
11. Compensation towards funeral expenses (J) Rs. 15,000/-
12. Total Compensation (F+G+H+I+J=K) Rs. 5,53,805/-
13. Rate of Interest Awarded 9% per annum
14. Interest amount up to the date of award (L) Rs. 2,03,803/-
15. Total amount including the Interest (K+L) Rs. 7,57,608/-
16. Award amount released Rs. 53,805/-
17. Award amount kept in FDRs Rs. 5 lacs
27. The entire compensation is, however, revised as under:-
1. Total Loss of Income from the date of accident till the death of the injured Rs. 3, 86,100/- (Rs. 7722X 50 months)
2. Medical Expenses Rs. 25,000/-
3. Pain and Suffering Rs.75,000/-
4. Conveyance Charges Rs. 15,000
5. Special Diet Rs. 15,000
6. Disfigurement Rs.15,000/-
7. Loss of Amenities and Enjoyment of life Rs.25,000/- TOTAL COMPENSATION Rs. 5,56,100/-
28. The total enhanced amount of compensation granted to the Appellant thus, comes to Rs. 5,56,100/- along with interest @ 9% per annum from the date of claim till the disbursal of the amount, in terms of the impugned Award.
29. The statutory amount deposited by the Appellant/ Insurance Company be returned as per Rules.
30. The Appeal is accordingly disposed of along with pending Application(s) if any.
JUDGE NOVEMBER 5, 2024