Delhi High Court
Tata Aig General Insurance Co Ltd vs Sh Shibu V Pillai & Anr on 9 December, 2014
$~A-22 & A-23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 09.12.2014
+ MAC.APP. 1008/2013
TATA AIG GENERAL INSURANCE CO LTD ..... Appellant
Through Ms.Shantha Devi Raman, Advocate
versus
SH SHIBU V PILLAI & ANR ..... Respondent
Through Ms.Sumita Hazarika, Mr.R.K.Singh
and Ms.Ipsita Behura, Advocates for
R-1
+ MAC.APP. 422/2014
SH SHIBU V PILLAI & ANR ..... Appellant
Through Ms.Sumita Hazarika, Mr.R.K.Singh
and Ms.Ipsita Behura, Advocates
versus
TATA AIG GENERAL INSURANCE CO LTD ..... Respondent
Through Ms.Shanta Devi Raman, Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. The present two appeals are filed pursuant to an accident that took
place on 27.10.2011. MAC.App.1008/2013 is filed by the insurance
company seeking to impugn the Award on ground that the compensation
awarded is on the higher side. MAC.APP.422/2014 is filed by the claimant
seeking enhancement of compensation.
2. The brief facts are that on 27.10.2011 the claimant Shri Shibu V.Pillai
was going from his office at Gurgaon to his house on a motorcycle. After
crossing Dwarka underpass, he was hit by an offending vehicle coming from
the opposite direction. The claimant fell down alongwith his motorcycle and
suffered grievous injuries. The issue centres around the compensation
awarded. The Tribunal awarded a total compensation of Rs.33,47,505/-
break-up of which reads as follows:
1. Medical treatment Rs.3,87,857
2. Conveyance charges Rs.50,000/-
and special diet
3. Attendant charges for Rs.19,968/-
three months
4. Allowance for Rs.2,25,000/-
purchase of second
hand car
5. Allowance for Rs.17,71,660/-
driver's charges
future including
6. Loss of earning Rs.4,93,020/-
during the period of
treatment (22 days)
7. Pain and suffering Rs.1,00,000/-
8. Loss of amenities, Rs.3,00,000/-
pleasure of life and
inability to attend
social functions
Total Rs.33,47,505/-
3. I will first deal with MAC.APP.No.1008/2013 filed by the insurance
company. Learned counsel appearing for the appellant/insurance company
submits that the compensation awarded is on an extremely higher side. She
raises only one issue i.e. that the Tribunal has keeping in view that the
claimant has suffered 60% permanent disability of the left lower limb
awarded a lumpsum of Rs.2,25,000/- as compensation for purchase of a
second hand car and Rs.17,71,660/- as an allowance for driver's salary. She
submits that this is without any evidence and such compensation cannot be
awarded and is erroneous.
4. The basis for the tribunal having awarded a sum of nearly 20 lacs for
purchase of a second hand car and for its maintenance has not been
elaborated by the Tribunal. There is no evidence to show that the claimant is
completely immobile. In his affidavit by way of evidence claimant does
mention any such requirement for purchase of a car. PW2 Dr.Vineet Kumar,
Junior Specialist, Orthopaedics, DDU Hospital, Hari Nagar, New Delhi who
had come twice and deposed as PW-2 and PW-4 nowhere states that the
claimant would need a vehicle for mobility.
5. In the light of the nature of evidence placed on record, in my opinion,
grant of sum figure for purchase of a second hand car and for future driver's
salary is erroneous. The award to that extent stands modified.
6. Appeal stands disposed of accordingly. All pending applications, if
any, also stand disposed of.
7. Statutory amount deposited by the appellant at the time of filing the
appeal be refunded to the appellant.
MAC.APP.422/2014
8. I will now deal with MAC.APP.No.422/2014. Learned counsel
appearing for the appellant/claimant strenuously urges that compensation
awarded is inadequate. She submits that no amount has been awarded for
future medical expenses. She further submits that on account of the
permanent physical disability suffered by the claimant, there is bound to be a
reduction in his earning capacity which would jeopardise his future career.
Hence, compensation on account of loss of future income due to the physical
disability ought to have been awarded. It is further submitted that in the
present case the Tribunal has merely awarded Rs.1 lac for pain and
sufferings which is grossly inadequate. It is also pointed out that
compensation which has been awarded for attendant charges is on the lower
side. It is lastly submitted that no compensation has been given for loss of
expectation of life.
9. I will now deal with the aforesaid submissions of the learned counsel
for the claimant. As far as future medical expenses are concerned, no
evidence on record has been led by the claimants to show that there would
be a requirement for future medical expenses. In the absence of any
evidence on that account, the Tribunal has rightly not awarded any
compensation for future medical expenses.
10. Coming to the issue of loss of earning on account of permanent
disability the Tribunal has noted that the salary of the claimant was
Rs.22,410/- P.M. The Tribunal also noted that as per the evidence of the
employer of the claimant PW-1 the claimant is a permanent employee and
will continue to get benefits of a permanent employee in future. There has
been no termination of his services on account of the disability suffered. He
has received his salary. He is working as an Assistant Manager (Accounts)
and given the nature of job the Tribunal was of the view that it is mostly a
sitting job and the disability will not come in the way of performing his duty
as an Assistant Manager. The Tribunal also noted that there is no evidence
that due to his disability the claimant will suffer any loss on account of
promotional avenues. Hence the Tribunal did not grant any compensation
for loss of earning for future on account of permanent disability.
11. Perusal of the Disability Certificate Ex.PW2/1 shows the nature of
disability as follows:-
"Post Traumatic Deformity of left lower limb with stiff knee and
ankle with foot drop with51% (Fifty one percent) of temporary
physical disability in relation to Left Lower Limb."
12. The claimant is 40 years old. In his evidence by way of affidavit as
PW-5 he does not mention any details of his educational qualification and
his work experience. He only states that he is working as Assistant Manager
Accounts in Targus Technology Pvt. Ltd.
13. In the light of facts on record and given the nature of disability
suffered by the claimant there is bound to have some effect on the future
prospects on functioning of the appellant. He is doing a private job. The
promotion and increments in job of his nature are wholly dependent upon
the efficiency and work output of an employee. The efficiency would
certainly get affected on account of the disability suffered. In the light of the
facts and circumstances of this case, I assess the functional disability at
25%.
14. The Tribunal assessed the salary of the claimant is Rs.22,410/-.
Accordingly, the assessed income of the claimant shall be enhanced by 30%
keeping into account that the age of the claimant as 40 years and the
judgment of the Supreme Court in Rajesh & Others vs. Rajbir Singh &
Ors. 2013 9 SCC 54 for the purpose of computing the loss of income due to
functional disability. The loss of future earnings on account of permanent
disability would be Rs.13,10,985/- (Rs.22,410 + 30%/ x 12 x 25/100 x 15).
15. Coming now to the attendant charges, the Tribunal has awarded
Rs.19,968/- on account of attendant charges. As per PW-5 in his affidavit by
way of evidence he has described his injuries as follows:-
(i) " Post traumatic Deformity of left lower limb with
(ii) Stiff knee and ankle with
(iii) Foot drop with 51% (Fifty One Percent) of Disability in
relation to Left Lower Limb.
(iv) Fasciotomy wound with defects exposing critical structure over
the medical and lateral aspect lower 1/3RD left leg with Knee
spanning exfix insitu and other multiple injuries all over body."
16. He further states in his affidavit that he has remained admitted in
hospital from 28.10.2011 to 29.11.2012. He has been operated upon various
times and undergone various procedures. I hence, enhance the attendant
charges to Rs.75,000/-.
17. As far as non pecuniary damages are concerned, the Tribunal has
awarded Rs.1 lac for pain and suffering and Rs.3 lacs for loss of amenities,
pleasure of life and inability to attend social functions. The compensation
awarded under these heads is just and reasonable.
18. The total compensation now payable to the claimant would now turn
out to be as follows:-
1. Medical treatment Rs.3,87,857
2. Conveyance charges Rs.50,000/-
and special diet
3. Attendant charges for Rs.75,000/-
three months
4 Loss of earning Rs.4,93,020/-
during the period of
treatment (22 days)
5. Pain and suffering Rs.1,00,000/-
6. Loss of amenities, Rs.3,00,000/-
pleasure of life and
inability to attend
social functions
7. Loss of future earning Rs.13,10,985/-
due to disability
Total Rs.27,16,862/-
19. Appeal stands disposed of.
20. All interim orders stands vacated. As per order of this Court dated
6.11.2013 the insurance company has already deposited the entire award
amount with accumulated interest and 40% was directed to be released to
the claimants. The Registrar General shall now release the balance amount
as per directions passed above alongwith proportionate accumulated interest
to the claimant in the same manner as directed by the Award. The balance
amount with proportionate interest be released to the Insurance Co.
JAYANT NATH, J
DECEMBER 09, 2014
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