United India Insurance Co Ltd v. Rajneesh Singh & Ors.

5. The appeal has been filed by the insurance company canvassing the following grounds:

(i) Monthly income was not established.

(ii) Physical disability and functional disability are two different things.

(iii) Future prospects ought to have been 40%.

MAC.APP. 199/2015 4/13

(iv) Compensation under pecuniary and non-pecuniary heads is incorrectly awarded.

(v) Compensation under Section 168 of the Motor Vehicles Act must be just and cannot be intended to be a bonanza. The last two grounds were not pressed during arguments being otherwise included as part and parcel of the other grounds and submissions. Therefore, the assessment by this Court is of the first three grounds. Monthly Income

6. On determination of monthly income, it was submitted by appellant’s counsel that the assessment of monthly income of Rs.25,000/- for respondent No.1 as a student giving final year examinations of Chartered Accountancy (CA) was without basis and de hors the evidence on record. What was pressed was that the process of becoming a Chartered Accountant is arduous and only 8.26% of candidates are estimated to pass through the final examinations. The fact that the respondent No.1 had passed the first set of papers could not lead to a safe assumption that he would have passed his final papers for Chartered Accountancy and, therefore, would have earned a monthly income of Rs.25,000/-. For this purpose, data from various sources available on the internet has been presented as part of the written submissions. Further, reliance by the Ld. MACT on the fact that he was running a tuition centre where he allegedly earned Rs. 15,000 – 20,000/- was not supported by any documentary proof and, therefore, ought not to have been considered. Reliance was made on the decision by the Hon’ble Supreme Court in Chandra Alias Chanda Alias Chandraram and Anr. v. Mukesh Kumar Yadav and Ors., (2022) 1 SCC 198 MAC.APP. 199/2015 5/13 where it was held that in absence of a salary certificate, minimum wage notification along with some amount of guesswork not completely detached from reality, should act as a yardstick to determine the income of the deceased. Appellant’s counsel contended that the Ld. Tribunal ought to have assessed monthly income of respondent No.1 based on minimum wages at the time of the accident (March 2012), which was around Rs.9,282/-. The relevant notification on minimum wages was also relied upon.

7. In response, the respondents submitted that respondent No.1 was 23 years old at the time of the accident and graduated with a B.Com. degree from Delhi University, was enrolled with the ICAI, had already cleared six papers in Group 1 and Group 2 of the CA Examination, and completed three years of Articleship Training during September, 2009 to July, 2011. Accident occurred in the final year of the CA course right before the examinations in which the two final groups containing four papers of each were remaining. The assessment that he would have cleared the CA Examinations and, therefore, would have the potential of earning at least Rs.25,000/- per month was, therefore, just, reasonable and rational. Further, that he was running a tuition centre in the name and style of “M/s Rajneesh Tuition Centre” and was earning Rs.15,000 – 20,000/- per month, teaching Mathematics and Accountancy to school students which had also come up as part of the evidence recorded. Physical Disability and Functional Disability

8. Appellant’s counsel contended that the disability of respondent No.1 could not have been assessed as 100%, since physical disability and functional disability were different things as observed authoritatively by the Hon’ble MAC.APP. 199/2015 6/13 Supreme Court in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. The crossexamination of PW-4, doctor from GTB Hospital, according to the appellant’s counsel established that respondent No.1 had weakness in his four limbs and could not walk or stand without support. However, since he was not involved in any manual labour, such disability could not be a hindrance and coupled with the fact that his mental faculties were not impaired, even in a potential profession as a Chartered Accountant, he would have been able to sustain and progress.

9. Respondent No.1’s counsel vehemently refuted this assessment. He stated that respondent No.1 had sustained a head injury as well as diffuse axonal injury and other bodily injuries. He was completely bedridden, and a disability certificate issued by the GTB Hospital certified a physical disability of 75% with permanent locomotor impairment of the whole body. He also relied on PW-4’s testimony to contend that weakness in all four limbs of the body had led to him being unable to walk or stand without support. He stated that respondent No.1 needs a constant attendant for everyday tasks and has to necessarily undergo regular physiotherapy. Future Prospects

10. Appellant’s counsel contended that the Respondent No. 1 was considered to be self-employed or on a fixed salary below the age of 40 years at the time the accident and, therefore, as per the decision of the Hon’ble Supreme Court in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680 an addition of 40% would be warranted, and not 50% as has been held by the Ld. Tribunal. MAC.APP. 199/2015 7/13

11. Respondent No.1’s counsel contended that the accident was in 2012, which preceded the decision in Pranay Sethi (supra) and the Ld. MACT had, therefore, correctly appreciated the matter holistically and in the circumstances assessed the future prospects as 50%. Analysis

12. Respondent No.1’s testimony states that he was 23 years old, about to appear in his examination for completion of the CA, enrolled with ICAI and was also running a tuition centre from his home and earning Rs.15,000 – 20,000/- per month to make up the expenditure of his regular studies. Due to the accident and his injuries, he discontinued his studies to become a Chartered Accountant, and also stopped running the tuition centre, since he was unable to perform his daily functions, and was also not mentally adept to do intense work. He states that he is dependent on the families’ finances and is unable to manage the tuition of students or any other physical work. Since his father also expired in the same accident, his family situation became precarious, and he suffered great mental pain, shock, trauma and agony aside from the permanent physical handicapped. That he was about to appear for his final examination of CA, was an admitted fact. As regards the tuition centre, he stated in his crossexamination that even though he had no documentary proof regarding the coaching given by him, he denied the suggestion that he was not running any coaching centre.

13. In these facts and circumstance, this Court is of the view that the possibility of him not clearing the Chartered Accountancy Examination may not be so acutely relevant to reduce his income assessment from Rs.25,000/- MAC.APP. 199/2015 8/13 (as assessed by the Ld. MACT) to minimum wages prescribed at Rs.9,282/- (as asserted by the appellant). It is evident from the facts on record that not only was respondent No.1, a B.Com. Graduate but also had been successful in clearing his two groups of papers for the CA Exam and most importantly had already completed three years of Articleship. This coupled with the fact that he was possibly providing tuition to students of class 12th for Accountancy and Mathematics (even though there was no documentary proof) would show that he was a serious contender and not involved in the pursuit of CA as a pastime or with a half-hearted approach. He was clearly a serious student and even assuming against him that he was not giving tuitions to earn livelihood, reasonable assessment even in 2012 would be that he was a 24-year-old graduate, in the hope of acquiring a professional degree and had substantially travelled ahead on that path. Because an accident occurred just before the final examinations of CA, cannot reduce him to a minimum wages category. The Hon’ble Supreme Court in Chandra alias Chanda alias Chandraram and Another (supra) held as under: “In absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality. Merely because the claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of minimum wage while computing the income.”

14. The Ld. MACT has reasonably and rationally assessed the probable income of respondent No.1 and relied upon decisions of this Court and the MAC.APP. 199/2015 9/13 Hon’ble Supreme Court which mandate reasonable guesswork in absence of documentary proof. In the view of this Court, therefore, the appellant’s contention is not borne out and deserves to be rejected.

15. As regards functional disability, the evidence of PW-4, the senior resident from GTB Hospital is noteworthy. He stated, categorically, that respondent No.1 was suffering from weakness in all four limbs of the body and based on the guidelines had given the certificate of disability. He stated “the disability of the appellant is permanent and not likely to improve”. On being cross-examined by the appellant’s counsel that he was able to stand and move in the courtroom with little assistance, and would that still justify a 75% disability assessment, PW-4 stated “Patient is not completely paralyzed. He cannot walk or stand without support” and then denied the suggestion that the patient does not suffer from any functional disability. Ld. MACT in the impugned award has also noted that the respondent No.1 had come to the Court in a wheelchair and that his condition showed that he would require a wheelchair for the rest of his life. Respondent’s counsel also categorically stated that the respondent No.1 was bedridden and required the help of his family or the attendants to lift him or facilitate his mobility. Most importantly, the fact that all his four limbs have been affected which meant that the movements of sitting, standing, walking, as well as his ability to write or use his hands had been permanently affected. With none of the basic locomotor functions being unaffected and normal, in the opinion of this Court, it would make him incapable of managing any of his daily functions without support and, therefore, justifying an assessment of 100% functional disability. In this MAC.APP. 199/2015 10/13 regard, it would be useful to rely upon the Hon’ble Supreme Court’s guideline for assessment of functional disability as provided in Raj Kumar (supra):

16. It would also be relevant to rely upon the Hon’ble Supreme Court’s observations in Rekha Jain v. National Insurance Company Limited and Others, (2013) 8 SCC 389, wherein it was observed:

17. Clearly the respondent No.1 was disabled from earning the livelihood that he was planning and proposing to achieve (as a CA Professional), he clearly could not effectively carry out activities and functions which he earlier did and was prevented and restricted from discharging his previous activities and functions. With his inability of all the limbs, the possibility of carrying on some lesser scale of activities cannot also be ascribed. The assessment, therefore, of the Ld. MACT is not incorrect and does not need modification. The appellant’s contention of this ground is, therefore, also rejected.

18. Regarding the reduction of future prospects from 50% (as assessed by the Ld. MACT) to 40% [as per Pranay Sethi (supra)] is not acceptable to this Court. Firstly, the accident preceded Pranay Sethi. Secondly, even if the guidelines in Pranay Sethi are applied retrospectively, it prescribes for a claimant (who had a permanent job) below age of 40 years an addition of 50% for future prospects. In the assessment already made above regarding the possibility of respondent No.1 getting a permanent job as a Chartered Accountant Professional, and also the fact that the Ld. MACT did not make an unreasonable assumption at 50% (having preceded Pranay Sethi), this Court MAC.APP. 199/2015 13/13 does not find any reason to interfere with the assessment of future prospects at 50%. It is also noted that the accident occurred in 2012 (i.e. 11 years back) and the respondent No.1 has only got a benefit of Rs.10,00,000/- as a partial release from the amount deposited by the appellant in the Court. It is also noted that he had lost his father in the same accident. This Court finds no reason to accept the appellant’s plea and reduce the components of compensation.

19. Therefore, the appeal stands dismissed. The impugned award of the Ld. MACT stands confirmed. The amounts deposited in this Court may accordingly be released to the respondent No.1 along with accrued interest.

20. Copy of the Judgment/Order be uploaded on the website of this Court.

JUDGE DECEMBER 04, 2023