IFFCO TOKIO GENERAL INSURANCE CO LTD vs RAUSHAN KUMAR & ANR.

$~14 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:7th November, 2024

+ MAC.APP. 205/2020 & CM APPL. 25194/2020
IFFCO TOKIO GENERAL INSURANCE CO LTD …..Appellant
Through: Mr. Navneet Kumar, Advocate.

versus

RAUSHAN KUMAR & ANR. …..Respondents
Through: Mr. S.N. Parashar, Advocate for R-1.

15
+ MAC.APP. 119/2022
RAUSHAN KUMAR …..Appellant
Through: Mr. S.N. Parashar, Advocate

versus

BALESHWAR KUMAR AND ANR (IFFCO TOKIO GENERAL INSURANCE CO LTD ) …..Respondents
Through: Mr. Navneet Kumar, Advocate for Insurance Company.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. An Appeal (MAC.APP.205/2020) under Section 173 of the Motor Vehicle Act, 1988 has been filed by the Appellant/Insurance Company and Appeal (MAC.APP.119/2022) has been filed by the Claimant challenging the Award dated 07.01.2020 vide which compensation in the sum of Rs.73,96,550/- along with interest @ 9% per annum has been awarded to the Claimant-Raushan Kumar.
2. The grounds taken by the Insurance Company/Appellant for challenging the Impugned Award are:
(i) that there was contributory negligence on the part of the injured as there was smell of alcohol present in the breath of the claimant. He was intoxicated and was wearing half helmet. He should be held liable for 50% contributory negligence;
(ii) that the income of the injured has been taken as Rs.25,000/- per month on the basis of his testimony and the pamphlets and visiting card that had been produced by him, despite there being neither any Employment Certificate nor any Income Tax Return filed to corroborate the assertions of the Petitioner, which in fact should have been taken as per Minimum Wages for Graduates on the date of accident i.e. 29.05.2016;
(iii) that Rs.3,00,000/- granted for the Loss of Income, is on the higher side;
(iv) that the sum of Rs.5,00,000/- granted for Attendant Charges and Loss of Prospects of Marriage are on the higher side; and
(v) that the Future Prospects have been granted without appreciating that this is not a death case but of Permanent Disability.
3. The cross-appeal MAC.APP.119/2022 has been filed on behalf of the Claimant Raushan Kumar who has sought enhancement of Compensation amount on the following grounds :
(i) that his disability has been wrongly computed as 75% instead of 100% to compute his Future Loss of Income. He was only 22 years old and was working in Bhojpuri Music Industry. He has suffered 100% Visual Disability and is incapable of doing his work and is totally dependent upon his family members;
(ii) that he has not been awarded any compensation towards Future Attendant Charges, as he would be needing a person for his entire life and should be granted Rs.25,92,000/- (12000 X 12 X 18) as the Attendant Charges.
(iii) that no compensation towards Future Conveyance has been granted. Because of his disability, he would never be able to use a public transport throughout his life and would have to incur much more expenses on the conveyance, for which he is entitled to be compensated;
(iv) that the compensation awarded under the Non-Pecuniary Heads is on the lower side; and
(v) that the rate of interest @ 7.5% per annum, is liable to be enhanced.
4. Submissions heard.

Contributory negligence:
5. The first ground taken by the Insurance Company for deduction of compensation is that because the injured was wearing half helmet and there was smell of alcohol present in his breath, he has to be held liable for 50% contributory negligence.
6. The PW1-Sh. Raushan Kumar, injured had deposed that the accident took place as the offending TSR which was being driven at a high speed in a rash and negligent manner without any indicator, took a sudden U-turn in a wrong way i.e. on the front side and had hit the motorcycle with great force. There was no cross-examination done of the Claimant by the Respondent No.1 Driver/Owner. The Insurance Company though cross-examined the Petitioner, but nothing material could be extracted from his cross-examination. It is evident from the testimony of the Petitioner that the sole negligence in causing the accident was of Respondent No.1.
7. The question which now arises is whether wearing a half helmet was a contributory factor to the accident. To this effect, there is no evidence whatsoever on record. In fact, from the manner in which the accident took place as explained by the injured, it cannot be held that wearing of half helmet contributed in any manner in causing the accident.
8. Likewise, though in the MLC it has been stated that there was smell of alcohol present in the breath of the injured, but that in itself cannot be a factor to presume that he was in an inebriated condition or had no control over his vehicle. The reason for presence of smell of alcohol in the breath may be varied like taking of medicine or such other reasons. Merely because there was smell of alcohol, is no reason to conclude that he, in any manner, contributed to the accident especially in the absence of any such evidence.
9. The learned Tribunal, therefore, rightly concluded that there was no contributory negligence on the part of the Claimant and the sole responsibility was that of the driver of the offending vehicle.

Loss of Income:
10. The second ground of grievance of the Insurance company is that there was no proof of the earnings of the injured as Rs.25,000/- per month and it should have been taken according to Minimum Wages for the Graduate.
11. However, the injured in his testimony, had deposed that he was working as an artist in the field of organizing various kinds of events, themes and Birthday parties, etc and earning around Rs.25,000/- per month aside from getting gifts and tips. Though no document was placed on record in proof of the monthly income, but to prove that he was in this profession, he had relied on visiting cards, pamphlets and photographs showing that not only was he performing as a magician, but was also a Lyricist in the Bhojpuri Music Industry. His Educational Certificate also reflected that he was a Graduate in Science from Magadh University, Bihar.
12. The learned Tribunal giving due regard to his testimony which was duly supported by the documents, rightly took his income to be Rs.25,000/- per month. Though the Income Tax Returns and such like documents may not have been produced, but it cannot be overlooked that he was a freelance worker and may not have had any documentary proof of his income which is likely to fluctuate, but on an average there is no reason to disbelieve that he was not earning Rs.25,000/- per month.
13. There is no error in taking the income of the Claimant as Rs.25,000/- per month.
14. To conclude, there is no merit in the Appeal of the Insurance Company, which is dismissed.
MAC.APP.119/2022: Appeal by Injured for enhancement of Compensation:

Loss of future earning capacity:
15. The Injured has sought enhancement of compensation on the ground that he suffered 100% Visual Disability and has become completely incapable of continue his work and requires assistance of someone and that his capability to perform the above task was greatly reduced and hampered due to Visual Disability.
16. The learned Tribunal despite noting the 100% Visual Disability, took it as only 75% of the Functional Disability. It may be observed that Claimant as per his testimony was a Magician and a Lyricist. Though, unfortunately he has suffered from 100% Visual Disability, but it cannot be said that he has been completely rendered incapable of performing the Shows or of continuing to be a Lyricist in the Music Industry.
17. The learned Tribunal has, therefore, rightly taken the Functional Disability as 75% and this aspect does not warrant any interference.

Future Attendant Charges:
18. The injured has sought Future Attendant Charges @ Rs.12,000/- per month for his life time. However, as already noted above, though the Claimant has become visually impaired, but it does not imply that he would not be able to take care of his own personal needs or that he would require a personal attendant at all times.
19. Learned Tribunal taking note of the nature of disability has rightly granted a consolidated amount of Rs.5,00,000/- towards attendant charges which does not require further interference.
Non-Pecuniary Heads:
20. Similarly, compensation on account of Loss of Marriage Prospects has been granted as Rs.5,00,000/- which again does not require any interference.
21. Likewise, compensation of Rs.1,00,000/- towards Disfiguration has been granted.
22. A sum of Rs.1,00,000/- has also been granted towards Mental and Physical Shock aside from Rs.1,00,000/- towards Pain & Suffering. Rs.50,000/- has been granted towards Loss of Amenities of Life.
23. The compensation given to the Claimant under these Non-Pecuniary Heads are reasonable and do not merit any enhancement.
Relief:
24. In view of the aforesaid discussion, both the Appeals are hereby dismissed and are accordingly disposed of along with the pending Application(s). The statutory amount deposited by the Insurance Company be refunded, in accordance with Law.

(NEENA BANSAL KRISHNA)
JUDGE
NOVEMBER 7, 2024
va

MAC.APP. 205/2020 & MAC.APP. 119/2022 Page 1 of 7