Iffco Tokio General Ins. Co. Ltd. vs Raja & Os.
2014 Latest Caselaw 3949 Del

$~A-10
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of decision:27.08.2014
+     MAC.APP. 241/2013
      IFFCO TOKIO GENERAL INS. CO. LTD.                  ..... Appellant
                         Through      Ms. Shanthi Devi Raman, Advocate
               versus
      RAJA & OS.                                        ..... Respondents
                         Through      Mr. R.S. Mishra, Advocate for R1

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. This is an appeal filed by the appellant/insurance company, seeking to impugn the award dated 3rd November, 2012 passed by the Tribunal.

2. The claim petition was filed by the minor aged 13 years. The claimant met with an accident on 10.07.2005 while he was going to play with his friends on Ring Road, Sarai Kale Khan, Delhi. He was hit by the offending car said to be driven rashly and negligently by respondent No.2. The claimant/respondent No.1 suffered permanent disability which has been assessed at 75% pertaining to whole body, Neuro Cognitive Impairment.

3. Based on the evidence on record, the tribunal concluded that the accident took place due to rash and negligent driving by respondent No.2.

4. On computation, the tribunal awarded the following amount:-

            Treatment Expenses                       Rs.1,690/-
            Pain & Suffering                      Rs.1,00,000/-
            Diet & Conveyance                      Rs.50,000/-
            Attendant's Charges                    Rs.36,539/-
            Future Attendant's Charges            Rs.6,93,554/-


             Disability                              Rs.8,55,018/-
            Loss of                                 Rs.1,00,000/-
            Disfigurement/Amenities/
            Enjoyment of life
            Total                                 Rs.18,36,801/-

5. Learned counsel appearing for the appellant submits that the awarded compensation is on the higher side. She firstly submits that the tribunal has awarded an erroneous amount on account of attendant charges. The tribunal has, for the interregnum period, from the date of the accident, for the period of one year, awarded the attendant charges based on the minimum wages of an unskilled worker. She further submits that for the future period, the tribunal awarded the attendant charges based on the salary of semi skilled worker using the multiplier of 18. Hence, taking the minimum wages of a semi skilled worker at Rs.3210.90 and using the multiplier of 18, the tribunal has awarded future attendant charges of Rs.6,93,554/-.

6. She further submits that attendant charges had been awarded without any proof showing that respondent No.1 is actually utilising the services of an attendant and/or would be utilising the services of an attendant. She also submits that even otherwise, in any case, this award based on the calculation as adopted by the tribunal - first taking wages of unskilled worker and then of semiskilled worker was an erroneous computation. She also submits that the payment of future attendant charges represents the expenditure to be incurred by respondent No.1 in future and there is no justification for awarding the pendente lite interest on the said amount.

7. She secondly submits that the tribunal has also erroneously awarded loss of income on account of disability based on loss of earnings calculated on income of unskilled workman and a further 30% income for future prospects. She submits that respondent No.1 was merely 11 years old and

method for computing loss of income was erroneous.

8. I will deal with the submission of the appellant regarding future attendant charges, from the evidence on record. The tribunal concluded that respondent No.1 suffered head injuries and fracture of the linear in anterior parietal lobe. He has undergone long treatment. As per the hospital records, in addition, he had also suffered serious head injuries and is suffering from post traumatic abnormality with right side hearing loss. He was assessed to have 75% disability pertaining to the whole body having Neuro Cognitive Impairment. The tribunal however relied upon the evidence of Dr. Saurabh, Senior Resident, Madan Mohan Malviya Hospital who deposed that his disability was unlikely to improve. The tribunal further noted that competence of comprehending, taking instructions and overall understanding is going to suffer immensely and the mental impairment shall continue. He is also likely to develop psychiatric problem such as hallucinations. Based on this evidence, the tribunal concluded that he has functional disability of 100%.

9. In view of the physical condition of respondent No.1, there is no doubt that he would need the services of an attendant throughout his life. No fault can be found with the award of attendant charges. The contention of the appellant that there is no proof of the claimant using an attendant is a contention that has to be rejected on the basis of evidence on record.

10. There is however merit in the submission of learned counsel for the appellant namely that the tribunal has, at one place awarded attendant charges based on minimum wages of unskilled worker and at another place awarded attendant charges based on minimum wages of semi-skilled worker. There is no explanation for this difference. In my opinion, it would be sufficient that wages of an unskilled worker at the relevant time which

had been fixed at Rs.3044.90 are awarded to the attendant. Hence, the attendant charges would come to Rs.3,044.90 x 12 x 18 = Rs.6,57,698/-.

11. There is also merit in the submission of learned counsel for the appellant that there can be no justification for awarding pendente lite interest on attendant charges awarded in as much as it is an expenditure which is to be incurred by respondent No.1 in future. Hence, respondent No.1 would not be entitled to pendente lite interest on the sum of Rs.6,57,698/- awarded to him for future attendant charges.

12. Coming to the issue of compensation on account of loss of income due to permanent disability. The Supreme Court in the case of Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Anr. , AIR 2014 SC 736 and MANU/SC/0878/2013, in para 12 held as follows:

"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs. 3 lakhs; upto 60%, Rs. 4 lakhs; upto 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability upto 10%, it should be Re. 1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents."

13. In view of the above legal position, respondent No.1 would be entitled to Rs.6 lacs on account of compensation for loss of income due to disability. Hence, the award of compensation under the head of disability is reduced

from 8,55,018/- to Rs.6 lacs. The award is accordingly modified.

14. As per the judgment of the Supreme Court in the case of Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Anr. (supra) the compensation as stated above is to include compensation for pain and suffering, mental and physical shock, hardship, inconvenience and loss of amenities of life. In the present case apart from compensation of loss due to disability the Tribunal has given separate compensation of Rs.1 lakh for pain and suffering and Rs.1 lakh for loss of disfigurement/amenities/enjoyment of life. These two amounts will merge into the said compensation of Rs.6 lakhs as stated by the Supreme Court and as awarded above for disability.

15. However, in my view the Tribunal has erred in awarding only Rs.1,690/- on account of medical treatment expenses. The boy has received grievous injuries. The background of the family is evident from the memo of parties and from the evidence of PW1 the mother of the claimant, it is evident that the family stays in a jhuggi. The mother is not educated and has put her thumb impression on the affidavit by way of evidence. Though the affidavit says that the claimant has spent a large amount on the treatment of the son, PW-1 has obviously not been able to place on record proper evidence. But given the nature of evidence and the injury suffered by the claimant as described above, it is obvious that a large amount would have been incurred by the parents of the claimant on account of future medical expenses. The parent would also have suffered loss of income while attending to the sick child. Accordingly, I add the following compensation :

1. For future medical treatment - Rs.75,000/-

2. For loss of income of parents - Rs.25,000/-

16. It is true that the claimant/respondent No.1 has not filed any cross- appeal. However, the Supreme Court in the case of Ranjana Prakash &

Ors. vs. Divisional Manager & Anr., 2011 ACJ 2418 has held that where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal by pointing out other errors or omissions in the Award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. The fact that the claimants did not independently challenge the Award will not come in the way of their defending the compensation awarded on other grounds. Of course, in a claim by the owner/insurer, the claimant will not be entitled to seek enhancement of compensation by leading any new ground in the absence of a cross-appeal or cross-objections.

17. Respondent No.1 would now be entitled to the following compensation:

           Treatment Expenses                      Rs.1,690/-
           Diet & Conveyance                     Rs.50,000/-
           Attendant's Charges                   Rs.36,539/-
           Future Attendant's Charges           Rs.6,57,698/-
           Disability                           Rs.6,00,000/-
           Future medical treatment              Rs.75,000/-
           Loss of income of parents             Rs.25,000/-
           Total                              Rs.14,45,927/-

18. As per the award, the Tribunal has awarded pendente lite interest of 9% per month from date of filing of the petition till realisation. As already stated above this pendente lite interest would be payable only on the award amount less future attendant charges and future medical treatment, i.e. only on Rs.7,13,229/- [14,45,927 - (6,57,698+75,000)].

19. As per the order dated 13.03.2013, the appellant had deposited the entire awarded amount along with up to date accrued interest with the Registrar General of this Court. This Court had however directed release of 60% of the awarded amount in favour of respondent No.1/claimant. The

balance was to be kept in FDR with UCO Bank, Delhi High Court Branch, New Delhi.

20. Registrar General may, based on the above directions, release the amount with accumulated proportionate interest to respondent No.1/claimant. The balance amount with accumulated proportionate interest will be released to the appellant. The statutory amount deposited at the time of filing of the appeal may also be released to the appellant.

21. The appeal stands disposed of.

JAYANT NATH, J AUGUST 27, 2014 'raj'