United Indian Insurance Co. Ltd. vs Sourav Banerjee & Ors.

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 28.10.2015 vide which a compensation in the sum of Rs. 34,71,512/- along with interest @ 9% per annum, has been granted to Respondent No. 1/ Sourav Banerjee, Claimant on account of injuries suffered by him in a road accident on 03.01.2013.

Briefly stated, on 03.01.2013 at about 09:30 a.m., the injured, Sh. Sourav Banerjee was in the process of boarding the DTC bus bearing registration No. DL 1PC 9668, when Sh. Dharam Vir Singh, driver of the DTC bus, suddenly set the bus in motion. Consequently, the injured fell and his left leg got crushed under the rear wheel of the bus.

The FIR No. 02/2013 under Section 279/337 of the Indian Penal Code, 1860 was registered at Police Station Janakpuri. The Detailed Accident Report (DAR) was filed by the Investigating Officer, before the learned Tribunal.

After recording of the evidence, the learned Tribunal awarded a compensation in the sum of Rs.34,71,512/- along with the interest @ 9% per annum to the injured.

The Appellant/Insurance Company has challenged the impugned Award on the ground that as per the salary of the Respondent No. 1/Claimant, (who has since died in 2022 and is now being represented by the legal heirs), was getting a salary of Rs. 24,300/- which included Rs. 9,250/- as incentive. This incentive amount of Rs. 9,250/- should not have been taken as part of the salary of the Respondent No. 1/Claimant, being a variable.

It is therefore, submitted that the quantum of compensation may be revised accordingly.

Learned counsel for the Respondent No. 1/Injured-Sh. Sourav Banerjee (since deceased) has submitted that the Respondent No. 1/Injured had suffered amputation of his lower limb (below knee) and he was doing a field job, despite which his functional disability has been taken as 50%, when the same should have been 100%. Moreover, after the accident, the Respondent No. 1, because of the nature of injuries suffered, was unable to resume the job.

Furthermore, the Respondent No. 1/Injured having suffered the amputation, no compensation has been granted for artificial limb.

It is, therefore, submitted that the compensation has been fairly granted and the impugned Award does not merit any interference.

Submissions heard and record perused.

The first ground of challenge by the Insurance Company/Appellant is that the Injured/Respondent No.1 (who has since died in 2022) was getting a salary of Rs.24,300/-, which included an incentive of Rs.9,250/-, which was liable to be deducted to calculate the monthly salary of the injured.

The injured in his testimony as PW-1, had deposed that at the time of the accident, he was working as an Assistant Manager (Finance and Marketing) with Shaan Admark Consultants Private Limited and was getting a monthly salary of Rs.24,300/- and in addition, Rs.10,000/- per month as incentive. His total salary, therefore, was Rs.34,500/- per month. He proved the Salary Certificate given by the Director of the Company, as Ex.PW-1/3 wherein it was certified that the injured was working as a Field Supervisor (Mother Dairy Division) from September, 2011 and was drawing a consolidated salary of Rs.24,300/- per month.

PW-3, Mr. Girish Chandra Chaturvedi, Accountant in Shaan Admark Consultants Private Limited, corroborated this testimony and also proved the Salary Certificate, Ex.PW-1/3. In addition, he produced the Salary Slip for the month of January, 2013, Ex.PW-3/A, which reflected a consolidated salary of Rs.24,300/- aside from incentive of Rs.9,250/- per month.

It has been explained by him in his Examination-in-Chief that while the salary was fixed, but the incentive was dependent on the monthly performance. The Income-Tax Returns of the Company for the Assessment Year 2013-2014 are exhibited as Ex.PW-3/R3.

The moot question is whether this Incentive of Rs.9,250/- was a consistent part of his salary or was it a variable depending upon the performance and therefore, could not have formed a part of the salary as in the Certificate Ex.PW-1/3, the net salary was mentioned as Rs.24,300/-.

From the monthly pay slip of January, 2013, Ex.PW3/A it is evident that the employer Company was giving Rs.24,300/- as consolidated salary. He was also getting an incentive of Rs.9,250/-.

Reading of the two documents together, it is evident that the incentive was a variable, dependent upon the work performance and was not a consistent part of the monthly salary. Furthermore, the injured has not produced the salary slip for the previous months from where the minimum incentive that he was earning, could be determined.

However, looking at the totality of the circumstances and that he suffered amputation, it can reasonably be estimated that he would have been earning an incentive of at least Rs.4,000/- per month. The learned Tribunal fell in error in not making a reasonable assessment in regard to the monthly incentive, which was not a fixed income but was dependent upon the work performance.

Therefore, in the facts and circumstances of this case, his total salary is thus taken as Rs.24,300/- (consolidated salary) + Rs.4,000/- (incentive) = Rs.28,300/- (total salary).

The salary of the injured is, therefore, taken as Rs.28,300/-.

Therefore, the Loss of Earning during the period of treatment is re-calculated as under:-Rs.28,300/- (total salary per month) X 6 months (treatment period) = Rs. 1,69,800/-p.a.

The injured had asserted that he had suffered a Permanent Disability of 70% in relation to his left lower limb on account of amputation of left lower limb below the knee.

The learned Tribunal noted that the injured was working as a Field Supervisor (Finance and Marketing). The injured in his cross-examination admitted that he could do the desk job, but explained that his area of work was also related to marketing, which involved a lot of physical movement and travel. The learned Tribunal observed that though he was capable of Desk job, but he was in the field of marketing. Consequently, his Functional Disability has been assessed as 50%.

In the light of the profile of the injured, it cannot be said that he had lost his functional capacity to an extent of 100%. His functional capacity was reduced since a part of his job, which involved field work, got curtailed. The learned Tribunal has rightly assessed the Functional Disability as 50%, which does not merit any interference.

Pertinently, though no Cross-Objections of Cross-Appeal has been preferred on behalf of the Respondents/Claimants but while making an assessment of the calculation of compensation, on account of Loss of Dependency, it has been noticed that no Future Prospects as mandated in the Case of National Insurance Company Limited. vs. Pranay Sethi & Ors., 2017 16 SCC 680, has been granted to the Claimant, to which he is mandatorily entitled in view of the decision of the Apex Court. The Tribunal was under a bounden duty to make a fair assessment of compensation in the light of established principles, which it has failed to do. Therefore, it is held that the injured would be entitled to an addition of 25% towards future prospects as he was 42 years old at the time of the accident.

Thus, in lieu of the reassessed Income and addition towards Future prospects, Loss of Future Earnings is re-calculated as under:-Rs. 28,300/- (Income p.m.) X 12 x 50/100 (Functional Disability) x 125/100 (Future Prospects) X 14 (multiplier) = Rs. 29,71,500/-.

The Respondents had asserted that because of amputation of his left lower limb, he is also entitled to the cost of Prosthetic. However, no evidence whatsoever had been led by the Claimant either to assert that he had procured a Prosthetic or the cost of the Prosthetic. It is only an afterthought and in the absence of any evidence in this respect, no compensation can be granted towards the cost of Prosthetic, as has been claimed by the injured. Moreover, no Cross-Objections have been filed on behalf of the injured. Therefore, no compensation can be granted under the Head of Cost of Prosthetic/artificial limb.

The final compensation is re-calculated as under:-

In view of the above, the total compensation is recalculated Rs. 36,20,500/- along with the interest @ 9% per annum from filing of the Claim Petition till the date of deposit, to be disbursed as per the Impugned Award dated 28.10.2015.

The balance amount be deposited within three months. The statutory deposit of the Insurance Company, be returned in accordance with law.

The Appeal is disposed of accordingly, along with the pending Application(s), if any.