UNITED INDIA INSURANCE CO LTD vs YASH AGGARWAL AND ORS

$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision 07th November, 2024
+ MAC.APP. 351/2022 & CM APPL. 47936/2022
UNITED INDIA INSURANCE CO LTD …..Appellant
Through: Mr. Pradeep Gaur, Advocate through VC.
versus
YASH AGGARWAL AND ORS …..Respondents
Through: Mr. Mayank Khurana, Mr. Mahender Kumar & Mr. Akash Tomar, Advocates for R-1.
Ms. Aditi Gupta, Advocate for R-2 & 3.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGEMENT (Oral)
1. The present Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed on behalf of the Appellant-Insurance Company against the Award dated 21.07.2022 vide which the compensation in the sum of Rs.63,45,000/- along with interest @ 6% per annum from the date of institution of Claim Petition till its disposal has been granted, to the Respondent No. 1-Yash Aggarwal (injured).
2. The grounds of challenge of the Impugned Award dated 21.07.2022 are as under:
(i) that the injured was a 17 year old minor and did not have a valid Driving Licence to drive the Scooty;
(ii) that it is a case of contributory negligence as the injured was not wearing the helmet at the time of accident;
(iii) that injured was a student of Class XI and the wages should have been taken as per Minimum Wages for matriculate and not as Rs. 20,000/- per month;
(iv) that injured had suffered a permanent disability of 33% of both the lower limbs and had also suffered neurological disability, but his Functional Disability has erroneously been taken as 100%; and
(v) that the compensation granted under the Non-Pecuniary Heads, including the pain and suffering and loss of amenities, is on the higher side.
3. Learned counsel for the Respondent No. 1-Yash Aggarwal has submitted that even though the injured was less than 18 years old, but that in itself cannot be a factor to attribute the contributory negligence. He was hit behind by the offending vehicle while the injured was driving the Scooty. Therefore, no contributory negligence can be attributed to the Respondent/injured.
4. In regard to the income taken for the injured as Rs. 20,000/- per month, it is submitted that on account of the injuries suffered by him, he is now suffering from further complications of Hernia and Stones in Gallbladder and he has undergone two subsequent surgeries, for which, he has incurred an additional expenditure of Rs.3,75,000/- and the Bills thereof have been annexed along with the Reply/Counter-Affidavit filed on behalf of the Respondent No. 1/ injured.
5. Submissions heard.
Contributory Negligence:
6. The first ground on which the Impugned Award has been challenged is that the injured being 17 year old, had no Driving Licence and was not competent to drive the Scooty and it is a case of contributory negligence.
7. While Respondent No. 1-Yash Aggarwal (injured) may not have been eligible to have a driving License to drive the Scooty, but he may be liable to be prosecuted under the penal provisions of the Motor Vehicles Act, 1988, but the same does not ipso facto attribute contributory negligence in driving the Scooty.
8. In Sudhir Kumar Rana vs. Surinder Singh, (2008) 12 SCC 436, the Apex Court has considered the similar case where the injured was 17 years old and observed that the injured must be guilty of an act or omission which materially contributed to the accident and consequent injury. The composite negligence refers to the negligence on the part of the two or more persons. Where the person injured is not shown to have contributed in any manner after happening of the accident, it cannot be said that it is a case of contributory negligence. It is only that the vehicle was being driven by the injured in a rash and negligent manner, can be held guilty of contributory negligence. Merely because the injured does not have a Licence, it does not attribute to contributory negligence.
9. Similar observations have been made by the Apex Court in Saraswati Palariya & Ors. vs. The New India Assurance Company Ltd. & Ors., Civil Appeal No. 9114/2018, wherein it was observed that merely because a vehicle was being driven by the deceased without a Driving Licence, would not automatically make him liable for contributory negligence.
10. In the present case, the Scooty being driven by the injured, was hit from behind by the offending vehicle. These circumstances do not establish any negligence on the part of the Respondent No. 1-Yash Aggarwal (injured). No evidence to this effect has also been led either by the Appellant-Insurance Company or the driver/owner.
11. In these circumstances, the leaned Tribunal has rightly concluded that it was not a case of contributory negligence on part of the injured, Respondent No.1.
Loss of Income:
12. The second ground of challenge is that the income of the injured has been taken as Rs.20,000/- per month without there being any explanation for the same. PW1-Yash Aggarwal (Injured/Petitioner) had deposed that he was a student of class 12th, but in his cross-examination he admitted that he had no document whatsoever to show that he ever took admission in Class 12th. His School Certificate was only up to class 11th, in proof thereof had produced his School Identity Card of 2016-17, Ex.PW1/2 reflecting that he was a student of Class 11th in Shri Sanatan Dharam Saraswati Bal Mandir Sr. Sec. School in the year 2016-17 and the accident had taken place on 20.05.2017. There is nothing to show that he was a student of class 12th as was deposed by him. Therefore, though he had asserted that he was a student of class 12th and was taking tuitions, but had failed to adduce any evidence in this regard.
13. Considering this testimony, his potential income could not have been calculated on the standards of B.A. student as has been done in the case of Ramesh Chand Joshi vs. New India Assurance Company MATAPPL.212-213/2006 decided by this Court on 20.01.2010 and Bharti Axa General Insurance Company vs. Upendra Kumar Shastri MISC. APPL.376/2017 decided by this Court on 07.03.2018.
14. In the light of clear admissions of the Respondent No.1-Yash Aggarwal/Petitioner that he had only studied up to class 11th, his income should have been taken as per the Minimum Wages for the Matriculate which is Rs.16,182/- per month and not Rs.20,000/- as has been done by the learned Tribunal.
15. Therefore, the monthly income of the injured is thus, taken as Rs.16,182/- per month.
Loss of Future Earning Capacity:
16. The third ground of challenge is that the Yash Aggarwal (injured) had admittedly suffered 33% disability of both the lower limbs as per the Disability Certificate, Ex.PW2/A. PW2-Dr. Naresh Chandra had opined that because of this disability, the injured would have some difficulty in walking, running, climbing stairs, sitting, squatting or crossing legs.
PW3-Dr. Devesh Bhatia, Specialist Urology, had also deposed that the injured has suffered bladder and urethral injuries at the time of accident, following which he has developed urethral stricture and he has undergone Urethroplasty at Kulkarni Hospital and has also undergone multiple Endoscopic surgeries. The injured at the time of examination was still having difficulty in passing urine and was on urethral self-dilation when he was examined by PW3-Dr. Devesh Bhatia on 06.11.2018. However, as per the Guidelines, the urethral stricture does not constitute as a criteria for permanent disability. The report of PW3-Dr. Devesh Bhatia is Ex.PW3/1.
17. The learned Tribunal considering the extensive Permanent Disability with which the Petitioner had suffered, which was effecting not only both his lower limbs, but also had punctured his urinary bladder resulting in the issues of difficulty in passing urine.
18. Therefore, the learned Tribunal has rightly taken the functional disability of the injured, Respondent No.1 as 100%.
19. Respondent No.1/Petitioner has claimed that no Future Prospects have been included while calculating the Loss of Income. As observed in the case of Pranay Sethi, the Petitioner is entitled to 40% towards Loss of Future Prospects.
20. The Loss of Future Earning due to Disability is, therefore calculated as Rs.16,182 + Rs.6,472 (i.e. 40%) X 12 X 18 = Rs.48,93,264/- rounded off to Rs.48,95,000/-.
Non- Pecuniary Heads:
21. Respondent No.1/Petitioner has claimed that he needs an enhancement for the compensation granted under the Non-pecuniary heads. Respondent No.1/Petitioner has been granted Rs.5,00,000/- towards Pain & Suffering, which do not warrant any further enhancement.
22. The learned Tribunal has also granted the Respondent No.1/Petitioner, Rs.1,00,000/- for expenses towards conveyance; Rs.1,00,000/- for expenses towards food (Special Diet); and Rs. 2,00,000/- towards Attendant Charges. The compensation given to the Respondent No.1/Petitioner is just and reasonable and does not warrant any inference.
23. However, the injured is granted additional Rs.2,00,000/- towards Loss of Marriage Prospects.
Relief:
24. The total compensation is calculated as under:
S.No.
Heads of Compensation
Amount of Compensation awarded by the Tribunal
Amount of Compensation awarded/modified by this Court
1.
Expenses relating to Treatment, Hospitalization and Medicines
Rs.11,25,000/-
Same
2.
Expenses towards Conveyance
Rs.1,00,000/-
Same
3.
Expenses towards food (Special Diet)
Rs.1,00,000/-
Same
4.
Attendant Charges
Rs.2,00,000/-
Same
5.
Loss of Earning during the period of Treatment
NIL
Same
6.
Pain & Suffering
Rs.5,00,000/-
Same
7.
Loss of Future Earning due to Disability
Rs.43,20,000/-
Rs.48,95,000/-
8.
Loss of Marriage Prospects
NIL
Rs.2,00,000/-
TOTAL COMPENSATION
Rs.63,45,000/-
Rs.71,20,000/-

25. In the end, it may be observed that it is an accident of May, 2017, but the interest has been granted @ 6%. Considering the prevalent rate of granting the interest, the same is enhanced to 9% per annum from the date of filing of the Claim Petition till the amount is deposited by the Insurance Company.
26. Accordingly, total compensation is assessed as Rs.71,20,000/- plus interest @ 9% per annum from the date of filing of the Detailed Accident Report (DAR) i.e. 03.01.2018 till its realization as per the terms of the learned Tribunal. The Compensation amount be disbursed in terms of the Award.
27. The Insurance Company to deposit the balance compensation amount, within Four weeks. The statutory amount deposited by the Insurance Company, be refunded in accordance with Law.
28. The Appeal is accordingly disposed of.

(NEENA BANSAL KRISHNA)
JUDGE
NOVEMBER 7, 2024
S.Sharma /va

MAC.APP. 351/2022 Page 1 of 8