Judgment:
* (i) IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: December 09, 2016 + MAC. APP3242016 KIRAN Through: Mr.Naresh Gupta, Advocate ..... Appellant Versus NATIONAL INSURANCE CO. LTD. & ORS. ........ RESPONDENTS
Through: Mr. Sanjay Kumar Dubey & Ms. Suchi Singh, Advocates (ii) + MAC. APP3942016 KANNU Through: Mr.Naresh Gupta, Advocate ..... Appellant Versus NATIONAL INSURANCE CO. LTD. ..... Respondent Through: Mr. Sanjay Kumar Dubey & Ms. Suchi Singh, Advocates (iii) + MAC. APP9152016 RAVINDRA KUMAR SHUKLA & ORS. ..... Appellants Through: Mr.Naresh Gupta, Advocate Versus NATIONAL INSURANCE CO. LTD. ..... Respondent Through: Mr. Sanjay Kumar Dubey & Ms. Suchi Singh, Advocates MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 1 of 11 (iv) + MAC. APP9402015 NATIONAL INSURANCE CO. LTD. ..... Appellant Through: Mr. Sanjay Kumar Dubey & Ms. Suchi Singh, Advocates (v) KIRAN & ORS. Versus Through: Mr.Naresh Gupta, Advocate ........ RESPONDENTS
+ MAC. APP9492015 & C.M.No.29742/2015 NATIONAL INSURANCE CO. LTD. ..... Appellant Through: Mr. Sanjay Kumar Dubey, Advocate for Ms. Suchi Singh, Advocate Versus KANNU & ORS. ........ RESPONDENTS
Through: Mr.Naresh Gupta, Advocate (vi) + MAC. APP9522015 NATIONAL INSURANCE CO. LTD. ..... Appellant Through: Mr. Sanjay Kumar Dubey, Advocate for Ms. Suchi Singh, Advocate RAVINDRA KUMAR SHUKLA & ORS. Versus ........ RESPONDENTS
Through: Mr.Naresh Gupta, Advocate CORAM: HON'BLE MR. JUSTICE SUNIL GAUR % ORAL JUDGMENT MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 2 of 11 1. The above captioned six appeals are directed against common impugned Award of 5th August, 2015 vide which claimant-Kiran, mother of the deceased has been granted compensation of `16,55,640/- and two injured-Ravinder Kumar and Kannu have been granted compensation of `29,82,633/- and `11,67,014/- respectively with interest.
2. Above captioned first three appeals have been filed by claimants for enhancement of compensation whereas the remaining three appeals are preferred by the Insurance Company. Learned counsel for the parties submit that the question raised in these appeals are identical and so, these appeals/cross-appeals have been heard together and are decided by this common judgment.
3. The facts in brief, as noted in the impugned Award, are that on 20th August, 2013 the injured-Ravinder Kumar was driving a motor rickshaw in which Ashish Kumar (since deceased) and injured-Kannu, were travelling and at about 12.20 a.m. when they reached in front of Airport T-3, New Delhi, all of a sudden a Tata Tanker bearing registration No.HR-38-F-3837 driven by Vinod Kumar Mishra in rash and negligent manner came at a high speed and hit the motor rickshaw from the back side, as a result of which passengers in the rickshaw sustained injuries. The injured persons were removed to Jai Prakash Narayan Narayan Apex Trauma Centre, AIIMS, New Delhi where Ashish Kumar was declared brought dead.
4. On the basis of evidence led by the parties, the learned Motor Accident Claims Tribunal in impugned Award of 5th August, 2015 has awarded compensation while applying the multiplier of 18 in the case of claimant-Kiran upon taking age of deceased and not of mother of the MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 3 of 11 deceased, who was aged 42 years at the time of accident. While assessing the loss of dependency, compensation of 50% towards future prospects has been granted by the learned Tribunal in the case of claimant-Kiran and Ravinder Kumar. It is evident from the impugned Award that Ashish, since deceased was aged about 20 years at the time of accident and he was doing a private job and in the absence of evidence regarding his income, loss of dependency has been worked out on the basis of minimum wages. Amount of `7 lacs has been also granted to claimant and injured- Ravinder Kumar to enable him to obtain an artificial limb.
5. In the appeal filed by claimant-Kiran, enhancement of compensation is sought on the ground that instead of minimum wages, income of `15,000/- p.m. ought to have been taken into consideration as the deceased was doing clerical job in a private firm and was also pursuing graduation course and because after completion of graduation, his employment prospects would have brightened and so, the potential income of the deceased ought to have been taken into consideration. In the appeals of claimants- Ravinder Kumar and Kannu, enhancement of compensation is sought by asserting that actual income and not the minimum wages ought to be the basis for assessing loss of dependency.
6. Enhancement of compensation is sought by claimant- Ravinder Kumar and Kannu on the ground that they had suffered over all disability of 60% each and infact the functional disability is of 100% in the case of these claimants. It is pointed out by claimants’ counsel that injured/claimants-Ravinder Kumar and Kannu were working as drivers prior to this road accident and now they are rendered jobless and so, the compensation awarded ought to be reasonably enhanced. MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 4 of 11 7. To seek reduction of compensation and to resist its enhancement, learned counsel for Insurer submits that in the absence of income proof, no case for enhancement of compensation is made out. It is submitted by learned counsel for Insurer that in the case of Ravinder Kumar, the disability suffered is considerably reduced, as compensation for obtaining artificial limb has been already awarded and if the artificial limb is obtained, then the disability would be reduced to 20% in the right hand, which had been amputated from the elbow.
8. It is next submitted by learned counsel for Insurer that claimant- Kannu has been granted compensation under two heads “Loss of income” and “Further loss of income on account of disability”. Compensation of `1,12,632/- has been given under the head “Loss of Income” and compensation of `2,02,275/- has been given under the head “Further loss of income on account of disability”, which is unjustified as compensation under one head alone can be granted and by splitting into two heads, claimant cannot be doubly compensated.
9. It is also submitted by learned counsel for Insurer that the amount of compensation of `3,00,000/- granted to injured-Kannu on account of „pain and suffering” is on the higher side and it ought to be reduced to `2,00,000/-, as granted to injured-Ravinder Kumar under this Head. Regarding the future medical expenses, claimant-Kannu has filed an application seeking additional evidence to claim medical expenses for the period after his evidence was recorded by the trial court. Learned counsel for Insurer submits that the claim made in this application for additional evidence by claimant-Kannu can be considered by the Tribunal at the time of reassessment in May, 2017 and the said application is not MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 5 of 11 required to be considered while dealing these appeals. On the one hand, learned counsel for Insurer contends that compensation granted deserves to be substantially reduced whereas on the other hand, learned counsel for claimants submits that the compensation granted is quite inadequate and it deserves to be suitably enhanced. Nothing else is urged by either side.
10. Upon hearing, and on perusal of impugned Award and the evidence on record, I find that motor rickshaw of the deceased / injured was hit from behind and negligence has been rightly attributed to the driver of the offending vehicle. It is so said as the standard of proof in such cases is not so high as in the criminal cases. Regarding inadequacy of compensation granted, I find that there is some element of guess work while assessing compensation in such cases. However, the compensation cannot be assessed of speculation or on conjectures.
11. The parameters to grant pecuniary and non-pecuniary damages in such cases, as highlighted in R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. AIR1995SC755have to be kept in mind and upon doing so, this Court finds that so far as loss of dependency in case of legal heirs of deceased is concerned, it has been worked out by learned Motor Accident Claims Tribunal while taking into account age of the deceased. Rightly so, as Supreme Court in M. Mansoor and Anr. Vs. United India Insurance Company Limited & Anr. (2013) 15 SCC603has relied upon earlier decision in Amrit Bhanu Shali Vs. National Insurance Co. Ltd. (2012) 11 SCC738 wherein in a case of bachelor, it has been already held that the selection of multiplier is to be based on the age of deceased and not on the basis of age of the dependents, as there may be a number of dependants of the deceased whose age may be different and therefore, the MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 6 of 11 age of the dependents has no nexus with the computation of compensation. In this view of the matter, while calculating “Loss of Dependency‟, learned Tribunal has rightly applied multiplier of 18 in the case of claimant- Kiran while taking into account minimum wages as there is no cogent evidence on record regarding actual income of deceased. No case for reduction of compensation is made out as 50% increase in income is justified in view of Supreme Court’s decision in Rajesh & Ors. V. Rajbir Singh & Ors. 2013 (6) Scale 563.
12. Under the head “Loss of Love and Affection”, compensation of `1,00,000/- has been granted to legal heirs of deceased, which appears to be on the lower side, as compensation of `2,00,000/- under the head of “Pain and Suffering” has been granted by learned Tribunal in the case of injured- Ravinder, which cannot be said to be exorbitant. Grant of compensation of `25,000/- under the head “Funeral Expenses” appear to be reasonable. So far as compensation of Rs.10,000/- under the head of “Loss of Estate” is concerned, I find it to be on the lower side in the facts of this case. As such, it is enhanced from `10,000/- to `1,00,000/-. Accordingly, the enhanced compensation awarded to appellant- Kiran is as under:-
"i. Loss of dependency (`7040x12x18) ii. Loss of love & affection iii. For Funeral Expenses iv. Loss of Estate Total MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 = `15,20,640/- = ` 2,00,000/- = `25,000/- = `1,00,000/- = `18,45,640/- Page 7 of 11 13. So far as compensation awarded to injured- Ravinder Kumar and Kannu is concerned, I find that they were drivers by profession and overall disability suffered by them is 60%. The said disability cannot be taken to be 100% because of the nature of injury suffered by them and as even if they are not able to drive, still they can do other jobs and earn their livelihood. So on this account, compensation granted to injured – Ravinder & Kannu cannot be enhanced.
14. As regards compensation awarded to injured- Ravinder Kumar is concerned, the reasoning adopted by learned Tribunal to justify the quantum of compensation under the head of “Loss of income on account of disability” holds good and compensation awarded under the head “Pain and Suffering” appears to be justified. The disability suffered by injured –Ravinder Kumar stands duly proved from the evidence on record. He had loss of his right hand in the accident, which has resulted in disfigurement of his body but grant of compensation on this account is unjustified because this aspect is taken care of by providing artificial limb.
15. Even if artificial limb is provided, it would still compromise the ability to effectively work and puts him in the category of handicapped person. It is no solace that this injured ought to be called “differently abled”. It is true that the artificial limb is provided free of cost by charitable Institutes but in view of estimate bill (Ex. PW2/10) from M/S Velocity Health Care India Pvt. Ltd., the injured Ravinder Kumar has been rightly granted compensation of `7,00,000/- to obtain artificial limb, MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 8 of 11 which would to some extent reduce the disability. This injured cannot do the job of a driver but can do some menial job and so, loss of income due to disability suffered is rightly assessed by learned Tribunal. Even in the case of this injured, no case for reduction of compensation is made out. In the fact situation of this case, compensation of `50,000/- granted under the head “Marriage Prospects” and “Loss of amenities” appears to be on the lower side and is accordingly enhanced from `50,000/- to `1,00,000/- each under these two heads. Consequentially, the modified compensation payable to injured- Ravinder Kumar is as under:-
"i. Medicine and treatment: ii. Loss of income on account of Disability iii. Pain and Sufferings iv. Conveyance, special diet and Attendant charges v. Marriage Prospects vi. Artificial Limb vii. Loss of Amenities Total : `7865/- : `18,24,768/- : `2,00,000/- : `50,000/- : `1,00,000/- : ` 7,00,000/- : `1,00,000/- : `29,82,633/- 16. So far as injured Kannu is concerned, the compensation of `1,12,632/- granted to him under the head “Loss of Income” for the period he remained out of work is justified. Even the grant of compensation of `2,02,275/- under the head “Loss of income on account of disability” is concerned, it cannot be said to be unjustified or unreasonable as compensation granted under this head is infact under the head of "loss of earning capacity". Infact this injured is unable to earn his livelihood merely because the disability suffered by this injured needs MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 9 of 11 to be re-assessed next year but by that itself would not render the award of compensation under the head of "loss of earning capacity' to be exorbitant. So, it cannot be said that compensation awarded under the two afore-noted heads ought not to be granted. However, grant of compensation of `3,00,000/- under the head of “Pain and Sufferings” is on the higher side and it deserves to be brought in line with the amount of compensation granted to co-injured –Ravinder Kumar. Accordingly, compensation granted to injured- Kannu under the head of “Pain and Sufferings” is reduced from `3,00,000/- to `2,00,000/-. Regarding the claim under the head “Future medical expenses”, the same is left open to be considered by learned Tribunal when this injured comes for reassessment in May, 2017. Grant of compensation of `50,000/- under the head “Loss of Amenities” appears to be on the lower side and is accordingly enhanced to `1,00,000/-. In view of above, the modified compensation awarded to Injured- Kannu is as under:-
"i. Medicine and Treatment ii. Loss of Income iii. Loss of income on account of Disability/loss of earning capacity iv. Pain and sufferings v. Conveyance and special diet vi. Attendant charges vii. Loss of amenities : : : : : : : `3,62,107/- `1,12,632/- `2,02,275/- `2,00,000/- `1,00,000/- `40,000/- `1,00,000/- 17. The grant of interest at the rate of 9% p.a. appears to be just and Total : ` 11,17,014/- MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 10 of 11 reasonable in view of Supreme Court's decision in Jitendra Khimshankar Trivedi & Ors. V. Kasam Daud Kumbhar & Ors. (2015) 4 SCC237 The method of disbursement of compensation as per this judgment will be in the same ratio as provided in the impugned Award.
18. With aforesaid modification of the impugned Award, the above captioned appeals and applications are disposed of with direction to refund the statutory deposit and excess of deposited amount, if any, to the Insurer herein. (SUNIL GAUR) DECEMBER09 2016 r JUDGE MAC.APP.324, 394 & 915 of 2016 MAC.APP.940, 949 & 952 of 2015 Page 11 of 11