Master Ajay @ Jure vs Icici Lombard General Insurance ...
2009 Latest Caselaw 1594 Del

6
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +      MAC.APP. 78/2008

                                 Date of Decision: 22nd April, 2009
%

      MASTER AJAY @ JURE            ..... Appellant
                    Through : Mr. Yashpal Shankar, Adv.

                   versus

      ICICI LOMBARD GENERAL
      INSURANCE CO.LTD. & ORS       ..... Respondents
                    Through : Ms. Suman Bagga, Adv.
                              for R-1.
                              Ms. Ashu Rani, Adv. for
                              Mr. Anil Kumar Verma, Adv.
                              for R-2 and 3.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?

3.      Whether the judgment should be
        reported in the Digest?

                          JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.1,58,500/- has been

awarded to the appellant. The appellant seeks the

enhancement of the award amount.

2. On 10th July, 2005, the appellant was crossing the road

opposite Camp No.4, New Rohtak Road, Delhi when offending

vehicle bearing No.DL3C AF 5069 hit him resulting in

grievous injuries.

3. At the time of the accident, the appellant was 10 years

old. The appellant suffered fracture of both bones of right

leg, head injury and haemorraegic contusion in right occipital

region. He was admitted in LNJP Hospital from 10 th July, 2005

to 25th July, 2005 and two crossed 'K' wires were inserted in

right ankle to stabilize it and external fixator was applied for

fracture of both bones. He was again admitted in LNJP

Hospital from 30th September, 2005 to 4th October, 2005 for

skin grafting.

4. The disability of the appellant is permanent and has

been assessed at 34% as per the disability certificate-Ex.PW-

2/1.

5. The learned Tribunal awarded Rs.5,000/- towards

medical expenses, Rs.50,000/- towards pain and suffering,

Rs.76,500/- towards loss of earning capacity, Rs.2,000/-

towards conveyance and special diet and Rs.25,000/-

towards loss of marriage prospects. The total compensation

awarded is Rs.1,58,500/-.

6. The appellant seeks enhancement on the following

grounds:-

(i) The compensation for loss of earning capacity be

enhanced by taking the notional income of the appellant as

per minimum wages.

(ii) The compensation for conveyance and special diet be

enhanced.

(iii) The compensation for loss of amenities be awarded.

7. With respect to the loss of earning capacity, the learned

Tribunal has taken the notional income to be Rs.15,000/- per

year according to the Second Schedule of the Motor Vehicles

Act. It is noted that Second Schedule of the Motor Vehicles

Act was incorporated in the year 1994 and the accident

relates to the year 2005. During the last 11 years, there has

been considerable increase in minimum wages due to

inflation and price index. It is, therefore, appropriate to take

the notional income to be Rs.22,500/-. The loss of earning

capacity accordingly comes to Rs.1,14,750/- (Rs.22,500 x 15

x 34/100).

8. With respect to the compensation for conveyance and

special diet, the learned Tribunal has awarded Rs.2,000/-

which is considerable low considering the injuries suffered by

the appellant. The appellant was hospitalized initially from

10th July, 2005 to 25th July, 2005 when to two crossed 'K'

wires were inserted in right ankle to stabilize it and external

fixator was applied for fracture of both bones. He was again

admitted in LNJP Hospital from 30th September, 2005 to 4th

October, 2005 for skin grafting. Following Section 114 of the

Indian Evidence Act, it can be presumed that the appellant

remained immobile for a long period and, therefore,

expenditure was incurred on his conveyance and special diet.

During the period of his hospitalization even the parents

would have incurred expenditure on conveyance. It is,

therefore, just, fair and reasonable to award Rs.5,000/-

towards conveyance and Rs.5,000/- towards special diet.

9. With respect to the loss of amenities of life, the learned

Tribunal has not awarded any compensation. Considering

the injuries suffered by the appellant and the permanent

disability of 34% with which the appellant shall have to live

for rest of his life and also noting that he was only 10 years

at the time of the accident and has a long life ahead,

Rs.25,000/- is awarded towards the loss of amenities of life.

10. The learned Tribunal has awarded interest @6% per

annum. Following the judgment of the Apex Court in the

case of Dharampal & Ors. vs. U.P. State Road

Transport Corporation, III 2008 ACC (1) SC, the rate of

interest is enhanced from 6% per annum to 7.5% per annum.

11. The appellant is entitled to a total compensation of

Rs.2,29,750/- (Rs.5,000 + Rs.50,000 + Rs.1,14,750 +

Rs.5,000 + Rs.5,000 + Rs.25,000 + Rs.25,000).

12. The appeal is allowed and the award amount is

enhanced from Rs.1,58,500/- to Rs. 2,29,750/- along with

interest @7.5% per annum from the date of filing of the

petition till realization.

13. Respondent No.3 is directed to deposit the enhanced

amount with the learned Tribunal within 30 days. Upon such

deposit being made, the learned Tribunal is directed to put

the same in the fixed deposit with a nationalized bank for a

period of seven years or till the appellant attains majority,

whichever is later, on which periodical interest be paid to the

appellant but no advance, loan or withdrawal be permitted

without the permission of the learned Tribunal.

14. Copy of this order be given 'Dasti' to learned counsel

for both the parties under signatures of Court Master.

J.R. MIDHA, J

APRIL 22, 2009 aj