Reliance General Insurance Company Limited vs Ishwar Singh & others

Sandeep Sharma, J.

1.Instant appeal is being taken up for final disposal at pre-admission stage with the consent of the learned counsel representing the parties.

2.Being aggrieved and dissatisfied with the impugned award, dated 4.7.2017, passed by the learned Motor Accident Claims Tribunal-II, Solan (camp

at Nalagarh), District Solan, Himachal Pradesh, in MAC Petition No.22-NL/2 of 2014, whereby learned Tribunal below while allowing the petition

under Section 166 of the Motor Vehicles Act,1988, having been preferred by respondent No.1 (for short ‘claimant’), saddled the appellant-

Insurance Company with liability to pay compensation to the tune of `9,90,658/-alongwith interest at the rate of 8% per annum from the date of filing

of the petition till deposit of award amount by insurance company, appellant-Insurance Company has approached this Court by way of instant

proceedings, with a prayer to quash and set-aside the impugned award, dated 4.7.2017, passed by the learned Motor Accident Claims Tribunal.

3.Briefly stated facts, as emerge from the record are that the claimant filed a claim petition under Section 166 of the Motor Vehicles Act ( for short

‘Act’), seeking therein compensation to the tune of 25,00,000/- on account of the injuries sustained by him in the motor vehicular accident. On

8.3.2014, at around 6:00 PM, at place Harraipur, Police station, Baddi, District Solan, Himachal Pradesh, when the petitioner was standing with his

motorcycle bearing registration No. HP-12A-4594 in front of Dogra vegetable shop, a tipper bearing registration No.HP-12F-0980, being driven by

respondent No.2 came from Chunri road and hit the motorcycle of the petitioner, as a consequence of which, one leg of the petitioner was crushed.

Claimant alleged that the accident occurred due to the rash and negligent driving of respondent No.2. Claimant further claimed that on account of the

injuries suffered by him, he remained admitted for four days at PGI, Chandigarh, whereafter he remained admitted in the hospital at Nalagarh

w.e.f.12.3.2014 to 19.4.2014, and in this process, he spent huge amount towards his treatment. Claimant also claimed that at the time of the accident,

he was studying in 12th class and doing part time work by selling milk and doing agriculture work. Unfortunately, in this accident, his left ankle was

amputated and he was unable to appear in examination. Claimant further claimed that in view of the injuries sustained by him, he is not able to get

service in army, Police Department etc. and as such, he has lost his future earnings.

4.Respondents No.1 and 2 by way of separate reply refuted aforesaid claim of the claimant and denied that the accident took place due to rash and

negligent driving of respondent No.2. Appellant-Insurance Company while refuting the claim of the claimant, claimed that respondent No.2 was

driving the offending truck without having valid and effective driving licence and as such, Insurance Company is not liable to indemnify the insured.

Appellant-Insurance Company also denied that the accident took place due to rash and negligent driving of respondent No.2. Appellant-Insurance

Company also denied the factum with regard to permanent disability to the extent of 70% suffered by the claimant in the accident.

5.Learned Tribunal below on the basis of the evidence adduced on record by the respective parties, held claimant entitled to compensation to the tune

of `9,90,658/- alongwith interest at the rate of 8% per annum jointly and severally against the respondents from the date of filing of petition till the

deposit of award amnount by the appellant-insurance company. In the aforesaid background, appellant-Insurance Company has approached this Court

by way of instant proceedings.

6.Mr. Jagdish Thakur, learned counsel representing the appellant-Insurance company, while referring to the impugned award, strenuously argued that

same is not sustainable in the eye of law, being contrary to the evidence available on record and as such, same deserve to be quashed and set-aside.

Mr. Thakur, further contended that bare perusal of the impugned award, clearly suggest that learned Tribunal below has not appreciated the evidence

in its right perspective, as a consequence of which, erroneous findings to the detriment of the Insurance company have come on record and as such,

same being contrary to the evidence deserves to be quashed and set-aside. Mr. Thakur, contended that as per own case set up by the claimant he

was studying in 12th class at the time of the accident and as such, it is not understood that on what basis learned Tribunal below came to the

conclusion that monthly income of the claimant was `6,000/- per month. He further stated that it is well settled principle of law that in the absence of

documentary evidence, if any, with regard to the income, Tribunal ought to have taken into consideration minimum wages, prevalent at the time of the

accident, as prescribed by the Government to assess the income. He further stated that in the year, 2014, the minimum wages of the unskilled worker

were not more than `3600/- per month and as such, learned Tribunal below erred in taking income of the claimant as `6000/-instead of `3600/- and as

such, impugned award is liable to be quashed and set-aside.

7.Mr. Thakur, further contended that otherwise bare perusal of the evidence available on record, nowhere suggest that the claimant successfully

proved on record that he at the relevant time was studying in 12th class. Learned counsel further contended that though certificate placed on record,

suggests that the claimant suffered 70% permanent disability with respect to lower left leg, but if the statement of Doctor is read in its entirety, it

nowhere suggests that whole body has become dysfunctional on account of the injuries suffered by the claimant in the accident. He further stated that

not even a single word has been suggested to the Doctor, who has proved the disability certificate, that due to this disability what amount of loss can

be there to the respondent and as such, learned Tribunal below erred in substituting its own opinion, which is not permissible under the law. While

referring to the Schedule-1 of the Employee’s Compensation Act, 1923, Mr. Thakur, contended that otherwise also as per the schedule,

percentage of loss of earning  capacity could not be more than 60% on account amputation below middle thigh and as such, award made in this

regard, being excessive, deserve to be modified/rectified, in accordance with law. Lastly, Mr. Thakur, contended that learned Tribunal below also

erred in awarding interest at the rate of 8% on the awarded amount from the date of filing of the claim petition, whereas same ought to have been

from the date of the award. In this regard, he placed reliance upon the judgment rendered by this Court in Lal Singh versus Himachal Road Transport

Corporation and another, 2006 ACJ 482.

8.Mr.O.C.Sharma, learned counsel representing respondent No.1-claimant, while supporting the impugned award, contended that there is no illegality

and infirmity in the impugned award, passed by the learned Tribunal below and as such, same deserve to be upheld. While refuting the aforesaid

contentions put forth on behalf of the appellant-Insurance company, Mr. Sharma, strenuously argued that the evidence available on record, clearly

suggest that the claimant successfully proved on record that at the time of the accident, he was studying in class 12th and on account of the injuries

suffered by him, he lost future prospect of his being recruited in Army, Police and other Government job and as such, learned Tribunal below rightly

awarded just and fair amount of compensation while assessing the future loss of earning.

9.Mr. Sharma, while placing reliance upon the judgment passed by the Hon’ble Apex Court in V.Mekala versus M. Malathi and another, (2014)11

Supreme Court Cases 178, contended that learned Tribunal below has not committed any illegality, while taking income of claimant as `6000/- because

in similar case of student, Hon’ble Apex Court has taken income of student as `10,000/- per month. Mr. Sharma, further contended that amount of

compensation awarded qua other heads i.e. pain and sufferings and future discomfort i.e. `20,000/- and `10,000/- awarded by the learned Tribunal

below, is on very lower side and same needs to be enhanced adequately by taking note of the fact that the claimant has lost his one foot in the

unfortunate accident. He further contended that learned Tribunal below has also failed to award adequate amount for loss of amenities. While placing

reliance upon the judgment rendered by Hon’ble Apex Court in Ranjana Prakash and others versus Divisional Manager and another, (2011) 14

Supreme Court cases 639, Mr. Sharma, contended that this Court enjoys vast power to enhance the amount of compensation even in the appeal

preferred by the Insurance company, if it comes to the conclusion that the learned Tribunal below has not awarded just and fair compensation.

10.After having carefully heard the arguments advanced by the learned counsel representing the parties and perused the record; this Court finds

considerable force in the argument of Mr. Jagdish  Thakur, learned counsel for the appellant-Insurance company that claimant has not led on record

specific evidence to prove his income. No doubt, claimant has claimed that he was studying in class 12th at the time of the accident and was doing

part time work by selling milk, but no evidence has been led on record in this regard. Needless to say, learned Tribunal below in the absence of

specific evidence, if any, led on record by the claimant with regard to his income, ought to have assessed income on the basis of minimum wages

prevalent at the time of the accident. In this regard reliance is placed upon the judgment rendered by Hon’ble Apex Court in Govind Yadav versus

New India Assurance Company Limited,2012(1) ACJ 28, wherein it has been held as under:-

“17.A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time

of accident he was working as helper and was getting salary of Rs. 4,000/- per month. The Tribunal discarded his claim on the premise that no

evidence was produced by him to prove the factum of employment and payment of salary by the employer. Learned Tribunal then proceeded to

determine the amount of compensation in lieu of loss of earnings by assuming the appellant’s income to be Rs. 15,000/- per annum. On his part,

the learned single Judge of the High Court assumed that while working as a cleaner, appellant may have been earning Rs. 2,000/-per month and

accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time

minimum wages payable to a worker were Rs.3,000/-per month. Therefore, in the absence of other cogent evidence, Tribunal and the High Court

should have determined the amount of compensation in lieu of loss of earnings by taking the appellant’s notional annual income as Rs. 36,000/- and

the loss of earnings on account of 70 percent permanent disability as Rs.25,200/- per annum. The application of multiplier of 17 by the Tribunal, which

was approved by the High Court, will have to be treated as erroneous in view of the  judgment in Sarla Verma V. Delhi Transport Corporation 2009

ACJ 1298(SC). In para 21 of that judgment, the court has indicated that if the age of the victim of an accident is 24 years, then the appropriate

multiplier would be 18. By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earnings would be

Rs.4,53,600/-“.

11.Reliance is also placed upon the judgment passed  by this Court in Smt. Pappi Devi and others versus Kali Ram and others, Latest HLJ2008

(Himachal Pradesh) 1440, which reads as under:-

“6.It has come in the statement of claimant Smt. Kala Devi (PW-1) that the deceased while working as a labourer and also selling milk was having

an income of Rs. 4000/-per month. Importantly, there is no cross-examination on this point at all. But the fact of the matter, is that no documentary

evidence has been placed on record to prove the income. This is the only evidence with regard to income of the deceased on record.

7.It has come on record that the deceased was illiterate and working as a labourer. In my view, his income determined by the Tribunal i.e. Rs.50/- per

day, is on the lower side. Taking the deceased to be employed as a daily wager, the minimum wages paid by the government in the year, 2001 to the

labourers was more than Rs.70/- per day. This is not disputed at the Bar. Therefore, the same can be made the basis for determining the income of

the deceased. Thus, the monthly income of the deceased is determined as Rs.70x30 Rs.2100/ - and after deducting 1/3rd of the amount i.e. Rs.700/ -

for the purpose of dependency is determined as Rs.1400/ -.â€​

Mr. O.C.Sharma, learned counsel representing respondent No.1-claimant, fairly admitted that at the time of the accident, minimum wages of

unskilled worker in Himachal Pradesh was `170/ - and as such, annual income of the claimant, if is assessed on the basis of the minimum wages,

comes out to `5100/- per month.

13.Having carefully perused the evidence led on record by the claimant in support of his claim that he suffered 70% permanent disability on account

amputation of his leg, this Court is not inclined to agree with the contention having been made by learned counsel representing the appellant-Insurance

company that claimant was not able to prove that on account of disability suffered by him, he was totally incapacitated. No doubt, PW-4, Dr.

Amarjeet, has stated in his cross-examination that disability of the person is not qua whole body, which is mentioned in Ex.PW4/A, but that is not

sufficient to conclude that claimant has not suffered permanent disability to the extent of 70%, which otherwise duly stands proved on record.

Similarly, this Court taking note of age of the claimant, who at that relevant time was 20 years of age, sees no illegality in applying multiplier of

‘18’. In view of the aforesaid findings returned by the learned Tribunal below, amount awarded qua future loss of income of the claimant needs

to be re-assessed at `5100/- on the basis of monthly income. Monthly income of the claimant is assessed at `5100/-. Since, the claimant has suffered

70% permanent disability, therefore, his monthly loss of income comes to `3570/-(`5100x70 ÷ 100), which comes to `42,840/- (3570x12) per annum.

Total loss of future income of the claimant comes to `7,71,120/-(`42,840x18).

14.As far as amount awarded by learned Tribunal below on account of attendant charges, medical expenses and taxi bills i.e. `10,000/ -, `32958 and

`10,500/- is concerned, there appears to be no illegality because same is totally based upon the documentary evidence adduced on record by the

claimant and as such, need not to be re-assessed. The Hon’ble Apex Court in Ranjana Prakash case (supra) has held that amount of

compensation can be enhanced even in the appeal preferred by the Insurance Company, if court comes to the conclusion that learned Tribunal below

has not awarded just and fair compensation. It would be profitable to reproduce following para of the judgment herein:-

 “Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such

further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the

appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 CPC can be pressed into service to make the award more

effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to

get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the tribunal

makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and

severally liable to pay the compensation, alongwith the owner, even though the claimants had not challenged the non-grant of relief against the

insurer.â€​

15.Having perused the evidence available on record, especially disability suffered by the claimant in the unfortunate accident, this Court is persuaded

to agree with Mr. O.C. Sharma, learned counsel representing the claimant that learned Tribunal below has not awarded adequate compensation on

account of pain and suffering and future discomfort and inconvenience and as such, this Court deems it proper to enhance the same from `20,000/-

and `10,000/- to `1, 00,000/- each under the aforesaid heads.

Consequently, in view of the aforesaid modifications made hereinabove, now the respondent-claimant shall be entitled to following amount:-

Loss of future loss of income=Â 7,71,120/-

Attendant charge                 =10,000/-.         Â

Pain and suffering               =1,00,000/-

Future discomfort and        =1,00,000/-

Inconvenience                       Â

Medical expenses               =32958/-

Taxi bills                           =10,500/-Â

Total   `                      =10,24,578/-  Â

17.In the case at hand, interest has been awarded by the learned Tribunal below from the date of filing of the claim petition. Mr. Jagdish Thakur,

learned counsel for the appellant-Insurance company, while placing reliance upon the judgment rendered by this Court in Lal Singh case (supra),

contended that learned Tribunal below has erred in awarding interest at the rate of 8% on the amount relating to loss of future income and future

medical expenses from the date of filing of claim petition, rather same was to be awarded from the date of the award by the Tribunal. In the aforesaid

judgment, referred hereinabove, Co-ordinate Bench of this Court while modifying the award passed by the learned Tribunal, though held entitled

claimant to compensation of `4,34,000/-, but held him entitled to interest at the rate of 9% per annum on an amount of `2,15,000/-, from the date of

filing of the petition. But, as far as amount awarded on account of loss of future income and future medical expenses, Court held that the claimant will

be entitled to the interest of 9% per annum from the date when the petition was decided by the learned Tribunal.

18.Mr. O.C. Sharma, learned counsel representing the claimant, while placing reliance upon the judgment rendered by the Hon’ble Apex Court in

Amresh Kumari versus Niranjan Lal Jagdish PD. Jain and others, (2015)4 Supreme Court cases 433, contended that the claimant is entitled to interest,

as awarded by the learned Tribunal from the date of filing of the petition not from the passing of the award. Mr. Sharma, also placed reliance upon the

judgment passed by Hon’ble Apex Court in Reliance General Insurance Company Limited versus Shalu Sharma and others (2018)2 Supreme

Court Cases 753 and contended that the claimant is entitled to interest at the rate of 9% qua the compensation awarded to him on account of future

loss of income from the date of filing petition.

19.Having perused the judgments, referred hereinabove, this Court sees no reason as to why interest at the rate of 8% cannot be awarded from the

date of filing of the petition. In all the aforesaid judgments, Hon’ble Apex Court has awarded interest at the rate of 9% from the date of filing of

the petition. At this stage, it would be profitable to reproduce para No.4-5 of the judgment herein below:-

“4. The judgment of a Constitution Bench of this Court in National Insurance Com. Ltd. V. Pranay Sethi ( 2017)16 SCC 680, settles the issue. The

deceased was self-employed. In such a case, future prospects cannot be denied. The grant must be in accordance with the following principle set

down in the judgment :( SCC para 59.4)

“ 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the

deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the

deceased was between the age of 50 to 60 years should be regarded and the necessary method of computation. The established income means the

income minus the tax component.†Since, the deceased 42 years of age, an addition of 25% on the ground of future prospects would be warranted

instead of 30% computed by the Tribunal.

5.The Tribunal has held that the annual income of the deceased on the basis of the income tax returns for 2010-2011, 2011-2012 and 2012-2013 would

be Rs. 1, 81,500. Adding a component of 25% for future prospects the income would stand at Rs., 2,26,875. Deducting an amount of one fourth

towards personal expenses, the loss of dependency per annum works out to Rs. 1,70, 156. Applying a multiplier of 14, the total loss of dependency

would work out to Rs. 23,82,187. The Tribunal has awarded a sum of Rs.3,14,335 towards medical expenses. An addition of Rs. 70,000/- would be

required to be made in terms of the decision in Pranay Sethi, on account of the conventional heads of loss of estate (Rs.15,000), loss of consortium

(Rs.40,000) and funeral expenses (Rs.15,000). Hence, the total compensation is quantified at Rs.27,66,522 on which the claimants would be entitled to

interest @9% p.a. from the date of filing of the claim petition. The apportionment shall be carried out in terms of the award of the Tribunal. We order

accordingly.â€​

Leaned counsel representing the claimant also placed reliance upon the judgment rendered by Hon’ble Apex Court in S. Thangaraj versus

National Insurance Company Limited (2018)3 Supreme Court Cases 605; wherein it has been held as under:-

“8. On perusing the record it is evident that the injuries sustained by the appellant are indeed of a serious nature. As a result of the multiple

fractures sustained by him, the appellant has lost complete sensation below the abdomen. Evidently he cannot work anymore as load man. In these

circumstances, the assessment of disability at 70% is incorrect. On a realistic view of the matter, the nature of the disability must be regarded as being

complete. In the circumstances, we find no reason or justification for the deduction of an amount of Rs. 2,91,600/- by the Tribunal (Rs.9,72,000 minus

Rs.6,80,400). The amount so deducted must be restored and is rounded off to Rs.3,00,000. Moreover, we are of the view that the appellant is entitled

to interest @ 9% per annum from the date of the claim petition.â€​

21.From the bare reading of aforesaid judgment, It is quite apparent that Hon’ble Apex Court while adding 20% for future prospects, modified the

award and held claimants entitled to interest at the rate of 9% per annum from the date of filing of the claim petition.

22.Leaving everything aside, Section 171 of the Motor Vehicles Act, which is reproduce herein below, itself mandates for awarding simple interest on

the awarded amount from the date of making the claim i.e. filing of the petition.“171. Award of interest where any claim is allowed:- Where any

Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple

interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.â€​

23.Consequently, in view of the detailed discussion made hereinabove and law laid down by the Hon’ble Apex Court, present appeal is partly

allowed and the impugned award passed by the learned MACT below is modified to the aforesaid extent only. Present appeal is disposed of, so also

pending applications, if any.