UNITED INDIA INSURANCE CO LTD vs JAGAT & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 19 February 2024 Judgment pronounced on: 15 April 2024 + MAC.APP. 55/2012 & CM APPL. 22764/2018, CM APPL. 39127/2018 UNITED INDIA INSURANCE CO LTD ….. Appellant Through: Ms. Suman Bagga, Adv. versus JAGAT & ORS ….. Respondents Through: Mr. Jatin Teotia and Mr. Prabhakar Vishisht, Advocates for claimant/R-1. Mr. Abhishek Swarup and Mr. Chetan Sharma, Advs. for review petitioner/R-3. CORAM: HON’BLE MR. JUSTICE DHARMESH SHARMA J U D G M E N T REVIEW PET. 229/2018
1. The present review petition has been filed by the applicant/respondent No.3, being the registered owner of the offending vehicle challenging the recovery rights granted to the insurer and a review is also preferred by respondent No.1/claimant /injured on quantum of compensation against the judgment dated 28.07.2017 passed by this Court in MAC. APPL. 55/2012.

2. Having heard the learned counsels for the parties and on perusal of the record including the judgment passed by this Court dated 28.07.2017, at the outset, this Court unhesitantly finds that a review of

the earlier judgment dated 28.07.2017 is definitely called for since there has been a grave jurisdictional error on the part of this Court, which is quite apparent on a bare reading of the judgment of this Court.

3. Shorn of unnecessary details, respondent No.1/claimant sustained injuries due to the negligent operation of a crane bearing engine No.28L-89-3121881102 and chassis No. 34557 when the same was deployed for loading and unloading of empty containers at the CCI Empty Yard, Tughlakabad, New Delhi on 06.12.2005. The claimant/respondent No.1 sought compensation under Section 166 read with section 140 of the Motor Vehicles Act, 19881, which eventually led to the passing of the impugned judgment-cum-award dated 23.09.2011 whereby, he was awarded a total compensation of Rs.7,24,200/- along with interest @ 7.5% per annum from the date of filing of the present petition i.e. 03.06.2006, till the notice under Order XXI Rule 1 of the Civil Procedure Code2 is given by the respondents.

4. The applicant/respondent No.3, on filing of the present review petition, was directed to deposit a sum of Rs.12,83,000/- with the learned Tribunal vide order dated 31.05.2018, which has been complied with. Further, on an appeal filed by the appellant/Insurance Company, this Court vide judgment dated 28.07.2017, considered the main objections of the appellant/Insurance Company that the crane in question was insured under Contractor”s Plant and Machinery policy as an equipment/machinery and not as a motor vehicle under Section

1 The Act 2 CPC

147 of the Act and that the liability of the appellant/Insurance Company was restricted to Rs. 3 lacs only as no extra premium was charged to cover third party liability. This Court rejected such pleas and it would be expedient to refer to the observations made by this Court, which read as follows:

“5. Learned counsel for respondent No.l urged at the time of the hearing that the crane is a motor vehicle within the meaning of Section 2(28) of the Motor Vehicles Act and the third party liability is statutory under Section 147 of the Motor Vehicles Act. 6. The learned Trial Court held the crane in question to be a motor vehicle within the definition of Section 2(28) of the Motor Vehicles Act. Relevant portion of the impugned judgment is reproduced hereunder. “… 6. The learned counsel for the R-3/Insurance company is not liable to pay any compensation as the crane Involved In the accident is not a motor vehicle as the same was not having any registration number. Per contra the ld counsel for petitioner has contended that the offending Crane was evidently a motor vehicle having four wheels and was mechanically propelled. It is being further submitted by the learned counsel that the R-3/Insurance Company, itself has contended in para no 1 of its written statement that the driver of the crane was not having valid and effective licence at the time of accident and in para 6 of its 1/l/S the insurance company has contended that there were permit violations by the owner of said crane. I find considerable force in the submissions of the Ld counsel for the petitioner. Bare perusal of the section 2(28) of MV Act provides that: – “Motor vehicle means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion Is transmitted thereto from an external or Internal source and Inclusive a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only In a factory or in any other enclosed premises or a vehicle having less, than four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimeters]”.
7. Admittedly the crane in question was a mechanically propelled vehicle and was not of any special type adapted for use only in a factory or in any other enclosed premises within the meaning of
exceptions provided In section 2(28) of MV Act. The Ld. counsel for the petitioner has also placed reliance on judgment titled Poomani Vs. Tootlcorin Thermal Power Project (AIR 1990 Madras 372) wherein the Hon”ble High court has held that a mechanically propelled crane is motor vehicle. In view of the above discussions, I do not find any force in the contention of the Ld counsel for the Insurance company that the crane involved In the accident was not a motor vehicle hence the said contention of the learned counsel for the Insurance company Is hereby rejected. 8. The Ld. counsel for the Insurance company has further argued that It Is not liable to pay compensation for the reason that accident had taken place In a private place i.e. In the compound of the R-2/ M/s J Roadwings International Pvt. Ltd. Perusal of the record reveals that the accident had taken place In the yard, Tughlakabad, New Delhi and I am of the opinion that the place where the accident happened cannot be considered to be a private place for the reason that public was also allowed entry therein. Wherever public can enter with permission, the said place becomes a public place or the purpose of Motor Vehicle Act and in this regard, I am also supported by the judgment of the Hon”ble High Court of Calcutta passed In case titled ‘National Insurance Company Ltd. Vs. Abdul Khan @ Abdul Rashid Khan & 0rs.'[2006 (1) T.A.C. 756 (Cal.)]. Similarly, In another case titled “Ramchandra & Anr. Vs. Shivanarayan & Ors.” [IV 92006) ACC 838], the Hon’ble Madhya Pradesh High Court has held that If a place Is accessible to public It Is a public place even If It Is a private property. The contention of the Ld. counsel for Insurance company In this regard has no substance and Is, therefore, O rejected. The Ld counsel for the Insurance company In this regard has no substance and Is, therefore, rejected. The Ld counsel for the Insurance company has further argued that the petitioner should have claimed compensation under workman compensation Act Instead of Motor Vehicle Act as he was an employee of respondent no. 2. However, Section 167 of MV Act provides that where death or bodily Injury of any person gives rise to a claim for compensation under this Act and also under Workmen Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of chapter X claim such compensation under either of those acts but not under both. Thus, it is the option of the petitioner to claim compensation from either of the said forums on account of the injuries sustained by him and the only bar is that the petitioner cannot claim under both the forums. Admittedly, the petitioner herein has not made any claim under Workmen Compensation Act and hence the petition cannot be rejected on this ground.”
7. With respect to the appellant’s contention that the appellant Issued CPM (Contractor’s Plant and Machinery) Policy, the learned Trial Court observed as under:
“… 21. The learned counsel for the Insurance Company has argued that R-3/Insurance company is not liable to pay any compensation as the insurance company had issued only a CPM (Contractor’s Plant Machinery) Policy and no Motor Vehicle Policy covering the alleged crane was ever issued by the Insurance Company. However the nature of business of the Respondent no 2 has been detailed as transportation and handling in the insurance policy. Ex R3W1/5. There is specific and categorical detail about the engine number and the chassis number in the said insurance policy. The officials of the Insurance company were very much aware that they were insuring a crane and have also mentioned the necessary particulars e.g. Chassis No. 34557 and Engine No. 28L-89- 3121881102 vide policy No. 030600/44/05/30018 valid for the period 15.06.2005 to 14.06.2006 and they cannot be permitted avoid their liability only on the pretext that the said policy Is named as CPM Policy and not a Motor Vehicle Policy. The respondent no. 3/Insurance company in para 17 of its written statement has contended that the vehicle bearing chassis No. 34557 and engine No.28L-89-3121881102 was insured vide policy No.030600/44/05/30018 (CPM policy) valid from 15.06.2005 to 14.06.2006 in the name of respondent no 2 and only third party risk was covered. Even the witness of the R3/Insurance Company R3W-1 Sh. Maikiat Singh, Deputy Manager, United India Insurance Company Ltd who has been examined on behalf of the insurance company has deposed that the counsel for R3/insurance company had issued notices U/o 12 Rule 8 CPC to the driver as well as owner of the offending vehicle but the said respondents have not compiled with the same and the said notices have been proved as Ex.R3W-l/l. The registered receipts and AD card of the same are Ex.R3W-l/2 to Ex.R3W-1/4 respectively. R3W-1, Shrl Maikiat Singh has also filed the report of the Licencing Authority, Mathura alongwith the letter of the company as Ex.R3Wl/6 and EX.R3W-1/7. The Ld. counsel for the Insurance Company has also argued that Insurance company is not liable to pay the compensation for the reason that respondent no. 1 and 2 have failed to produce on record valid and effective driving licence of the respondent no 1/driver of the offending vehicle and permit of the offending vehicle at the time of accident and that the liability of the Insurance company is only limited
to three lees as per the Insurance policy, Ex R3W1/5. Per contra the learned counsel for the petitioner has contended that even assuming the liability of the Insurance company to be a limited one as pleaded by the counsel for the Insurance company, the petitioner being third party is nevertheless entitled o receive the entire amount of compensation from the Insurance company and has contended that the Hon’ble Apex Court in cases titled “Oriental Insurance Company Limited V/s Cheruvakkara Nafeessa & Ors” [2001 ACJ I] and “Amrital Sood Vs Kaushalya Devi Thapar” [1998 ACJ] has held that the avoidance clause is effective only between the insured and the Insurance company and not a third party. The ld. counsel for the petitioner has contended that the R-3/Insurance company is only entitled for recovery rights from the insured/ owner of the offending vehicle and it cannot be exonerated from its liabilities. I have given my thoughts to the matter. The respondents no.1 and 2 have failed to appear before this Tribunal to contest the case and they were, therefore, proceeded O ex-parte. The respondent no 1 and 2 have failed to controvert the contentions of the learned counsel for the R-3/Insurance company and they have also failed to comply with the notice U/o 12 Rule 8 CPC issued by R-3/ Insurance Company. Postal receipts of these notices have also been placed on record. There is nothing on record also to suggest that these notices may not have been served upon respondents no. 1 and 2. In my opinion, it was the duty of respondent no. 1 and 2 to reply to the notices served upon them. They have failed to do so. On the other hand, they have chosen not to contest the proceedings before this Tribunal. There is no cross-examination of the witness of the Insurance Company i.e. R3W-1, Shri Malkiat Singh by the said respondents. Nonappearance and non-compliance of the notices served upon respondents no. 1 and 2 U/o 12 Rule 8 CPC compels this Tribunal to draw an adverse inference against them to the effect that the offending vehicle did not have a valid DL or permit on the date of accident. Therefore, considering the ‘Twin interest” of the parties i.e. R-3/Insurance company at one hand and that of the third party i.e. petitioner, for whose benefit the present legislation was brought on the statue book, the R-3/insurance company is entitled to recovery rights of the award amount from the insured/owner of the offending vehicle but only after disbursement of award amount to petitioner in terms of judgment of Hon”ble Supreme Court of India in case titled
‘National Insurance Company Limited Vs. Swaran Singh [AIR 2004 SC 1531].” 8. There is no Infirmity in the findings of the Claim Tribunal. The Claim Tribunal has rightly held the crane to be a motor vehicle within the meaning of Section 2 (28) of the Motor Vehicles Act. In view of the matter, third party insurance is mandatory under Section 147 of the Motor Vehicles Act. The Claims Tribunal has granted the recovery rights to the appellant to recover the award amount from respondent No. 3 in terms of the principles laid down of the Supreme Court in National Insurance Company v. Swaran Singh, AIR I 2004 SC 1531, on the ground that driving licence of the driver of the crane was fake. As such, the interest of the appellant has been sufficiently safeguarded. 9. This court would also like to record that the respondent No.l has suffered 100% permanent disability due to quadric paraplegic (paralysis of all the four limbs) and respondent No.l is living a life of vegetable whereas the Claims Tribunal has awarded meager compensation of Rs.7,24,200/-. 10. The appeal is dismissed. The statutory amount be refunded back to the appellant.”
5. In the review proceedings, learned counsel for the applicant/respondent No.1/claimant urged that review of the judgment of this Court dated 28.07.2017 is warranted since the order is patently contrary to the law and there is an “error apparent on the face of the record”. It was vehemently urged that the appellant/Insurance Company has neither pleaded nor proven that the applicant/respondent No.3 being the registered owner of the offending vehicle, was aware that the Driving Licence3 of respondent No.2/driver was not genuine. It was urged that the burden of proving that the registered owner of the offending vehicle had knowledge of the driving licence being fake was never discharged and reliance was placed on decisions in: (i)

3 Section 2(10) “driving licence” means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description.

Ram Chandra Singh Vs. Rajaram & Ors.4; (ii) United India Insurance Co. Ltd. v. Lehru5. Further, the decision of National Insurance Co. Ltd. v. Swaran Singh6 is also cited to the effect that the appellant/Insurance Company has failed to prove that there was any fundamental violation of the policy of insurance.

6. Per contra, learned counsel for the appellant/Insurance Company vehemently urged that it was a stark case where neither the driver nor the registered owner of the offending vehicle appeared during the course of proceedings before the learned Tribunal despite having notice of such proceedings; a fact, which was admitted by learned counsel for the applicant/respondent No.3 that indeed, one advocate had been nominated to represent the applicant. It was further pointed out that even during the course of appeal, no one appeared for respondents No.2 and 3. It was urged that since the applicant had been sitting over his legal rights for so long, it does not lie in his mouth now to turn around and file a review in an appeal once the execution application has been filed by the Insurance Company seeking recovery rights.

7. Insofar as the issue that the driving license of the respondent No.2 i.e. driver was not genuine is concerned, although it has been rightly urged that the said aspect is squarely covered in a catena of decisions by the Apex Court, yet no benefits could accrue to the appellant registered owner. Undoubtedly, the possession of a valid driving licence by the driver of the offending/insured vehicle is the

4 [Civil Appeal No. 8145 of 2018 arising out of SLP(C) No.6760/2017] 5 (2003) 3 SCC 338

6 (2004) 3 SCC 297 7 2022 SCC OnLine SC 2119 8 (2001) 4 SCC 342

fundamental requirement of law to be proven in accordance with provisions of this Act. In the case of Rishi Pal Singh v. New India Assurance Co. Ltd.7 wherein, although the driving licence of the driver of the offending vehicle had been found to not have been issued by the Nagaland Transport Authority, the Court observed as under: –

“7. If the owner has stated that driver had produced the driving license from Nagaland but no such license was produced on record, it is obviously a mistake on the part of the owner. However, such aspect cannot be used to grant liberty to the Insurance Company to recover the amount from the owner when the driving license actually produced by the claimant themselves was from Una, Himachal Pradesh. It may be stated that falsus in uno, falsus in omnibus is not the principle applicable in India. Therefore, even if a part of the statement that the driver has produced the license from Nagaland is not correct, it is wholly inconsequential.”
8. In the aforesaid matter, the registered owner of the offending vehicle had contested the matter and had appeared in the witness box. In the above cited case, the Supreme Court has referred to the decision in United India Insurance Co. Ltd. v. Lehru (supra) and to a three judge”s bench judgment in National Insurance Co. Ltd. v. Swaran Singh (supra). Further, it was pointed out that a larger bench in Swaran Singh resolved the difference of opinion or conflicting judgment in the case of New India Assurance Co. v. Kamla8 and Lehru (supra), wherein it was held as under: –

“92. It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the conditions of the insurance policy or the contract of insurance. In Lehru case [(2003) 3 SCC 338: 2003 SCC (Cri)
614] the matter has been considered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever. We would be dealing in some detail with this aspect of the matter a little later. xxxxxxxxx 99. So far as the purported conflict in the judgments of Kamla [(2001) 4 SCC 342 : 2001 SCC (Cri) 701] and Lehru [(2003) 3 SCC 338 : 2003 SCC (Cri) 614] is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case.”
9. In view of the aforesaid proposition of law, reverting to the instant matter, the appellant did not prefer to contest the claim petition and he had been proceeded ex-parte. He did not respond to the notice issued by the insurance company. There was no cross-examination of the witness of the insurance company i.e., R3W-1/Malkiat Singh by the registered owner. It is a stark case where the applicant registered owner slept long over his legal rights. He never bothered to prove that he had employed the driver in a bonafide manner believing the driving licence to be genuine and testing his skills. Such elementary burden of proof was not discharged by the applicant registered owner. It was in the said backdrop that the learned Tribunal rightly drew adverse inference against the applicant registered owner. The Latin maxim “vigilantibus non dormientibus jura subveniunt” can be aptly applied, which literally means that “the law aids the vigilant, not those who

sleep over their rights”. Therefore, there is no “error apparent on the face of the record” in the impugned judgment of this Court affirming the decision of the learned Tribunal placing the financial burden upon the insurance company to pay the quantum of compensation to the claimant injured and to recover the amount of compensation paid from the applicant registered owner.

QUANTUM OF COMPENSATION:
10. Insofar as the quantum of compensation is concerned, although no cross-appeal had been filed by the claimant/injured within the stipulated time after pronouncement of impugned Judgment-cum-award dated 23.09.2011, since this Court had an occasion to observe that a meagre compensation of Rs. 7,24,200/- has been awarded by the learned Tribunal, it failed to exercise its Suo motu jurisdictional powers to do course correction and embark on a legal journey to adjudicate just and fair compensation. Avoiding long academic discussion, the Supreme Court in the case of S. Murali Sundaram v. Jothibai Kannan9, while discussing as to what constituted an error apparent on the face of the record while exercising power to review an order passed, held that “but error on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on the points where there may conceivably by two opinions”.

11. That being the proposition of law, in the instant matter, this Court while noting with some degree of concern that the amount of compensation was extremely meagre and not just and evidently, it

9 2023 SCC OnLine SC 185 10 2008 SCC OnLine Mad 53

failed to exercise its jurisdiction. Reference can be invited to a decision in the case of National Insurance Co. Ltd. v. M. Jayagandhi10 wherein, the Madras High Court observed that the appellate court can suo motu enhance the amount of compensation by exercising powers under Order XLI Rule 33 CPC. The germane observations have been reproduced hereunder:

“The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41 Rule 33 CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in Sheikhupura Trans. Co. Ltd. v. Northern India Transporter’s Ins. Co. Ltd., 1971 ACJ 206 (SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the Claimants of future pecuniary benefits and on the other any pecuniary advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un-reasonable, excessive nor deficient. (paragraph 37)
Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. Even without a Cross-
Objection, questioning the quantum, the Court could Suo motu enhance compensation under Or. 41, R. 33, CPC.” (paragraph 38) {bold portions emphasized}
12. In another decision of State of Punjab v. Bakshish Singh11, the Supreme Court discussed at length the powers of an appellate court under Order XLI Rule 33 CPC. The court observed:

11 (1998) 8 SCC 222

“In this case, what we propose to do would be fully in consonance with the provisions of Order XLI Rule 33 of the Code of Civil Procedure, 1908 which provides as under: “ORDER XLI — APPEALS FROM ORIGINAL DECREES 33. Power of Court of Appeal.—The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the appellate court shall not make any order under Section 35-A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.” (paragraph 7) This provision gives very wide power to the appellate court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections. (paragraph 8)
The discretion, however, has to be exercised with care and caution and that too in rare cases where there have been inconsistent findings and an order or decree has been passed which is wholly uncalled for in the circumstances of the case. The appellate court cannot, in the garb of exercising power under Order XLI Rule 33, enlarge the scope of the appeal. Whether this power would be
exercised or not would depend upon the nature and facts of each case.” (paragraph 9) {bold portions emphasized}
13. In view of the aforesaid proposition of law, this Court can suo motu modify the award for providing just and fair compensation. There is no gainsaying that the parameters for determination of the compensation on account of permanent disability have already been expressed in a catena of decisions by the Supreme Court, for which, reference can be invited to the decisions in Raj Kumar v. Ajay Kumar12 and Pappu Deo Yadav v. Naresh Kumar13.

14. Reverting to the instant matter, the respondent/claimant, who was aged 40 years, sustained life-threatening injuries in a motor accident on 06.12.2005 and as per the MLC and discharge slip from the Hospital, he suffered with a burst of C-6, D-10 and other injuries resulting in complete Quadriplegia i.e., paralysis caused by injuries resulting in total loss of all the four limbs. Further, as per the disability certificate Ex. PW1/28, there was a traumatic injury of dorsal and CX Spine with Quadriplegia besides profuse bleeding. Thus, the injured has suffered 100% permanent disability. At this stage, it would be apposite to point out that the learned Tribunal awarded Rs. 14,500/- towards reimbursement of medical expenses, Rs. 20,000/- towards conveyance/transportation charges besides Rs. 20,000/- towards special diet. However, the compensation for pain and suffering was worked out as under:-

12 (2011) 1 SCC 343 13 (2022) 13 SCC 790

“COMPENSATION FOR PAIN AND SUFFERINGS:
16. Let me now assess the compensation to be paid to the petitioner
for pain and sufferings. It is a settled law that a particular amount can not be fixed for pain and sufferings for all the cases as it varies from case to case. As per the medical record of the petitioner ie. Medico-Legal Report, Ex PW1/2, the doctors examining the petitioner have opined that the nature of the injuries suffered by the petitioner due to this accident be grievous in nature. As per the MRI Report of Cervical Spine of the petitioner, ExPW1/15, the petitioner has suffered a burst fracture of C6 Vertibra and the vertebral body is slightly compressed with anterior wedging. The posterior spinus arch at C5-6 level also seems disrupted. Hyperintenesities on T2 weighted scans are seen withing spinal cord at C5-6 & C6-7 Disc Levels, which are likely to represent parenchymal contusion. As per the Discharge Summary issued by Safdarjung Hospital, ExPW1/4, the petitioner was diagnosed with burst of C6, D10 and other injuries resulting in complete Quadriplegia. The disability certificate, ExPW1/28, also mentions that the petitioner had suffered Traumatic injury of Dorsal & CX Spine with Quadriplegia. Judicial notice can also be taken on the fact that since the petitioner had suffered grievous injuries and was hospitalized, he must have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of anti-biotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the compensation for pain and sufferings, I am guided by the judgment of Hon’ble High Court of Delhi in case Satya Narain V/s Jai Kishan (FAO No: 709/02 decided on 02.02.2007) wherein it was held that:- “On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objective co-relation with the pain and suffering. The objective facts relatable to pain and suffering would be: (a) Nature of injury. (b) Body part affected. (c) Duration of the treatment.”.
17. The petitioner has suffered 100% permanent physical impairment due to this accident as per the disability certificate, Ex.PW1/28 and due to said physical disability the day-today life of the petitioner has been adversely affected and hence the petitioner is also entitled for loss of amenities/loss of expectation of life and for the inconvenience which the petitioner has to undergo for his remaining life due to his physical impairment due to this accident. Keeping in view the guidelines passed by the Hon’ble Supreme
Court and Hon’ble Delhi High Court and in view of the nature of injuries suffered by the petitioner, I am of the opinion that a sum of Rs. 1,00,000/- compensation for the pain and sufferings of the petitioner which he has already suffered or is likely to suffer in his remaining life due to the injuries suffered by the petitioner in this accident will be sufficient to meet the ends of justice. COMPENSATION FOR PERMANENT DISABILITY & LOSS OF INCOME: 18. The Ld counsel for the petitioner has contended that the petitioner has suffered 100% permanent physical impairment due to this accident and has placed reliance on disability certificate, Ex.PW1/28 issued by BK Hospital, Faridabad which has been duly i proved by PW2, Dr RS Gupta, ESI Hospitgal, NH-3, Faridabad, Haryana, who has deposed on 18.02.2010 that the petitioner was found to be a case of Quadriplegia (Paralysis of all the four limbs) due to traumatic injury of dorsal and cervical portion of his body. This witness was never got cross-examined by the respondents and his testimony remains unchallenged. Accordingly, it appears to me, upon appreciation of the entire circumstances, that not only the avocation of the petitioner but the day-to-day life of the petitioner has been adversely affected due to the permanent physical disability suffered by the petitioner due to this accident as the petitioner has been rendered incapable of taking any gainful employment due to this accident making him vulnerable for total dependency. The learned counsel for the petitioner has claimed that the petitioner was working as a Helper with M/s Roadwings International Pvt. Ltd. and was getting a monthly salary of 3,500/-. However, perusal of the record reveals that the petitioner has not placed on record any documentary proof to establish his avocation, monthly earnings or educational qualifications. The petitioner has not got examined any witness from his employer to establish his attendance record, leave records, salary records or his avocation. In the absence of any cogent evidence filed on record, the monthly income of the petitioner can be taken to be the minimum wages of an unskilled workman, as notified by the Govt of Delhi, which was Rs. 3,165/- on the date of accident (06.12.2005). As per the Medico- Legal Report, Ex PW1/2, the petitioner was 40 years old at the time of accident for which appropriate multiplier applicable is 15, in terms judgment of the Hon’ble Supreme Court of India in case titled ‘Sarla Verma Vs. DTC’ decided on 15.4.2009 in C.A. No. 3483/08. Therefore, the loss of income and compensation on account of disability comes out to be Rs. 3,165/- X 12 X 15 = Rs. 5,69,700/-. 19. Thus, the total compensation to which the petitioner is entitled to now comes as under: –
1. Compensation for medical expenses: Rs. 14,500/- 2. Compensation for conveyance: Rs. 20,000/- 3. Compensation for Special diet: Rs. 20,000/- 4. Compensation for Pain and sufferings: Rs. 1,00,000/- 6. Compensation for loss of income and future earnings on account of permanent disability: Rs. 5,69,700/- Total: Rs. 7,24,200/-”
15. The aforesaid reasoning by the learned Tribunal is manifestly unpalatable, unconscionable and flawed. The injured was evidently working as a helper when he sustained injures while operating on the offending vehicle/crane in question. Although no documentary evidence was placed on record, the claim that he was earning Rs. 3500/- per month was not exaggerated considering his age and experience of working with the Cranes. While there are no issues with respect to the application of „15″ as the multiplier, certainly no consideration has been accorded towards future prospects and the amount of compensation to an injured on other counts, who has suffered from Quadriplegia i.e. loss of all the four limbs, which is permanent and regressive. Further, the compensation on account of pain and sufferings is on the lower side and no compensation has been awarded towards enjoyment of amenities of life.

16. In view of the foregoing discussion, this Court finds that it would be fair to assume that the deceased was earning Rs. 3500/- per month, which comes to Rs. 42,000/- as annual income. Since he was 40 years of age, Future Prospects or increase in future advancement can be reckoned @ 25% in view of the decision in the case of Pranay

Sethi14. Thus, the total annual income would come to Rs. 52,500/-. Further, applying the multiplier of „15″ as per Sarla Verma15, the total loss of future earnings would come to Rs. 7,87,500/-. Further, the compensation on account of pain and suffering is increased to Rs. 5,00,000/- and Rs. 5,00,000/- is awarded towards loss of enjoyment of amenities of life.

17. Although there is no cogent evidence on record with respect to the expenses incurred on special diet and attendant charges, it would be fair to assume that the respondent No.1/injured requires an attendant round the clock and reckoning such services at a minimum amount of Rs. 10,000/- per month, the same would come to Rs. 1,20,000/- annually for two or three attendants, which, of course, may be the family members, who are entitled to be paid for their invaluable and humane service towards the claimant-injured.

18. Hence, applying the multiplier of „15″ on annual expenses, the figure would come to Rs. 18,00,000/-. Lastly, Rs. 1,00,000/- is awarded towards special diet and the transportation /conveyance charges are enhanced to Rs. 1,00,000/-. Needless to say that the multiplier method should be followed not only for determination of future loss of earning, but also for assessing the attendant charges. In this regard, reference can be invited to a decision of the Supreme Court in the case of Abhimanyu Pratap Singh v. Namita Sekhon16 wherein it was held:

14 National Insurance Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680 15 Sarla Verma v. DTC (2009) 6 SCC 121 16 (2022) 8 SCC 489

“The High Court in the impugned order [Abhimanyu Partap
Singh v. Namita Sekhon, 2019 SCC OnLine P&H 6271] observed that the claimant has now started practice as an advocate, therefore, future loss of earning has been calculated only for 10 years, applying the multiplier of 16, without looking to the facts that the claimant cannot perform the work of advocacy similar to the other advocates by attending the cases in different courts. The attendant charges have been allowed only for 20 years with one attendant. In fact, not only for determination of future loss of earning but for attendant charges also the multiplier method should be followed. (paragraph 16) The multiplier method has been recognised as most realistic and reasonable because it has been decided looking to the age, inflation rate, uncertainty of life and other realistic needs. Thus, for determination of just compensation to ensure justice with the family of the deceased or the injured as the case may be the compensation can be determined applying the said method. Therefore, in our view the Tribunal while granting the compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years was not justified. In fact, the said amount should be determined applying the multiplier method. (paragraph 17) {bold portions emphasized}
19. In another case of Kajal v. Jagdish Chand17, the apex court held as under:

17 2020 4 SCC 413

“The attendant charges have been awarded by the High Court @ Rs 2500 per month for 44 years, which works out to Rs 13,20,000. Unfortunately, this system is not a proper system. Multiplier system is used to balance out various factors. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, this Court has always followed the multiplier system. The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges, etc. This system was recognised by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami [Gobald Motor Service Ltd. v. R.M.K. Veluswami, AIR 1962 SC 1]. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It
ensures better justice between the parties and thus results in award of “just compensation” within the meaning of the Act. (paragraph 22) {bold portions emphasized}
20. Accordingly, the total compensation is worked out as under:

S.No.
Name of Heads
Amount

1.
Annual Income
Rs. 42,000/- (3,500 x 12)

2.
Addition towards Future Prospects @ 25%
Rs. 10,500/- (25% of annual income)

Total Annual Income
Rs. 52,500/- (42,000 + 10,500)

3.
Multiplier
15

Total loss of future earning with 100% disability
Rs. 7,87,500/- (52,500 x 15)

4.
Compensation towards medical expenses
Rs.14,500/-

5.
Compensation for Conveyance
Rs.1,00,000/-

6.
Compensation for Special Diet
Rs.1,00,000/-

7.
Compensation for Pain & Sufferings
Rs.5,00,000/-

8.
Loss of Enjoyment of amenities of life
Rs.5,00,000/-

9.
Attendant charges
Rs.18,00,000/-

Total:
Rs.38,02,000/-

21. Accordingly, the applications for review filed by the respondent No.1/injured-claimant is hereby allowed and the review application filed by the applicant/registered owner is hereby disallowed. The impugned judgment dated 28.07.2017 passed by this Court is reviewed and modified to the extent that the respondent No.1/claimant-injured shall be entitled to total compensation of Rs. 38,02,000/- (Rupees Thirty Eight Lacs Two Thousand Only) with

interest @ 7.5% from the date of filing of the petition till realization. The enhanced amount of compensation payable to the respondent No.1/claimant-injured be deposited by the non-applicant/insurance company within four weeks from today failing which, it shall be liable to pay interest @ 12% per annum from the date of this judgment till realization.

22. The review petition along with the pending applications stand disposed of accordingly.

DHARMESH SHARMA, J. APRIL 15, 2024 Sadiq/ck