Delhi High Court
Oriental Insurance Co Ltd vs Pinki & Ors on 12 December, 2014
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision 12.12.2014
+ MAC.APP. 1127/2014
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr.Pankaj Seth, Advocate
versus
PINKI & ORS ..... Respondents
Through: Mr.Vijay Ahlawat with Mr.Shahid,
Advocate for Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
CM No.20384/2014
Exemption is allowed, subject to all just exceptions.
The application stands disposed of.
MAC APP 1127/2014 and CM No.20383/2014
1. By the present appeal the appellant seeks to impugn the Award dated 23rd
September, 2014. The appeal can be disposed of at this stage itself.
2. The brief facts are that respondent No.1 on 7th March, 2011 was crossing
the road at Mayur Vihar, Phase-III and was hit by a Gramin Sewa vehicle
which was driven by respondent No.2 at a high speed in a rash and negligent
manner. Respondent No.1 sustained multiple grievous injuries.
3. The dispute centres around the compensation awarded to respondent No.1
on account of permanent disability suffered by her. The Tribunal awarded a
total compensation of Rs.14,55,537/-, as follows:-
1. Towards future loss of income Rs.8,08,920.00
2. Towards pain and sufferings Rs.1,00,000.00
3. Towards servant/attendant for 6 Rs. 30,000.00
months
4. Towards conveyance and special diet Rs.80,000.00
(without bills)
5. Towards medical bills Rs.11,677.00
6. Towards loss of amenities and Rs.1,50,000.00
enjoyment of life
7. Towards disfigurement Rs.80,000.00
8. Towards loss of Marriage Prospects Rs.1,50,000.00
9. Towards loss of wages Rs.44,940.00
Total Rs.14,55,537.00
4. Learned counsel appearing for the appellant submits that the
compensation awarded is on the excessive side. He submits that there is no
evidence placed on record to show the nature of work done by respondent No.1
and accordingly there is nothing on record to assess the functional disability
suffered by the appellant. Accordingly, he submits that compensation for loss
of income is much on the higher side. Similarly, he submits that compensation
for loss of amenities, disfigurement, and loss of marriage prospects,
conveyance and special diet is on the higher side and has been awarded without
any basis or evidence whatsoever. He further submits that the driving license
of the driver was not valid but the Tribunal had wrongly given recovery rights
whereas the appellant should have been exonerated. He further submits that
while computing loss of income the tribunal assessed the income towards
future prospects wrongly.
5. Learned counsel appearing for respondent No.1 on seeing the matter on
the cause list has strongly defended the compensation awarded. He submits that
in fact the compensation is on the lower side and given the nature of injuries
suffered by respondent No.1, the compensation is grossly inadequate.
6. A perusal of the award shows that the Tribunal noted that the respondent
No.1 suffered permanent disability of 79 per cent in relation to her right upper
and lower limb. The Tribunal concluded that respondent No.1 was doing the
work of embroidery/thread work in Radhika Enterprises. Her marriage was
scheduled after one month. The effect of the accident was that she is unable to
carry on her profession and her marriage has also been cancelled. Accordingly,
the Tribunal assessed the functional disability at 50 per cent in relation to the
whole body, following the judgment of the Supreme Court in the case of Raj
Kumar vs. Ajay (2011) 1 SCC 343. Compensation was accordingly amended as
noted above.
7. As far as the profession of respondent No.1 is concerned, in her affidavit
by way of evidence she states that she is VIII class pass and is getting a salary
of Rs.6000/- per month. Nothing else is elaborated in the said affidavit
regarding nature of her work. In her cross examination, she has clarified that
she is receiving an income of Rs.6000/- per month and that she was working
with Radhika Enterprises as an embroidery worker. The Tribunal also recorded
her statement on 22nd September, 2014 wherein she has reiterated that she was
doing the job of embroidery in Radhika Enterprises and earning Rs.6000/- per
month. She has further said that after the accident, she had to leave her job. In
the light of this evidence on record, there are no reasons to interfere with the
finding of the Tribunal that the claimant was doing embroidery work.
8. In her statement made on 22.9.2014, respondent No.1 further states that
her marriage was fixed by her parents which was scheduled within one month
and thereafter the accident took place and her marriage prospects are now
completely marred. She also stated that she is personally not in a position to
carry on any work and is unable to walk properly and her right limb and hand is
completely immobile she even cannot write. She has undergone a plastic
surgery of her right mammary organ.
9. A perusal of the award shows that she was admitted in the hospital from
8.3.2011 to 26.4.2011. She sustained compound Grade III b Fracture of right
leg, right arm, elbow dislocation and multiple abrasions over face, right breast,
shoulders and other parts of the body. The external fixator was applied for
dislocation on 9.3.2011. The debridement of wound was done on right thigh on
11.4.2011, and open reduction and internal fixator with K-nails was carried out.
Bone grafting was also done on 18.4.2011. Petitioner suffered permanent
disability of 79% in relation to her right upper and lower limb as a case of post
traumatic fibrous ankylosis of right elbow, and compound fracture of upper and
lower limbs. The Disability Certificate was proved by Dr. Brijesh Kumar Jain
(Orthopedics) as PW2.
10. In the light of the above facts the assessment of the Tribunal fixing the
functional disability at 50% is in order.
11. The next contention pertains to compensation for loss of amenities,
disfigurement and loss of marriage prospects.
12. Reference may be had to the judgment of the Supreme Court in the case
of V.Mekala vs. M.Malathai 2014 ACJ 1441. That was a case of a 16 year old
girl studying in XI Class. Her disability was ascertained at 70%. The Supreme
Court assessed her income at Rs.10,000/- per month and accordingly awarded
loss of future income of Rs.22,68,000/-. For pain and suffering Rs.2,00,000/-
was awarded; for loss of amenities and attendant charges, a sum of
Rs.2,00,000/- was awarded, for loss of enjoyment of life and marriage prospect
Rs.3,00,000/-. The total compensation of Rs.30,93,000/- was awarded.
13. Reference may also be had to the judgment of the Supreme Court in the
case of Rekha Jain vs. National Insurance Company Limited 2013 (8) SCC
389 where compensation of Rs 79, 66,000/- was awarded. In the case of Kavita
vs. Deepak & Ors. 2013 (9) SCC 54 compensation of Rs.34, 38,747/- was
awarded.
14. In the present case, the Tribunal has assessed the income of respondent
No.1 based on minimum wages of skilled worker as applicable to the State of
UP as Rs.4993/-. This amount has been enhanced by 50% for future prospects
and the multiplier of 18 was applied. The future loss of income is assessed at
Rs.8, 08,920/-. Given the facts and circumstances of this case and legal
position, in my opinion, there is no reason to interfere with the award amount.
15. On the issue of future prospects reference may be had to the judgment of
the Supreme Court in the case of Raj Kumar vs Ajay Kumar (supra). This
contention is without merit.
16. As far as the liability of the appellant is concerned, in the facts and
circumstances of the case, there are no reasons to interfere with the direction in
the award. Reference may be had to the judgment of the Supreme Court in the
case National Insurance Company Ltd. vs. Challa Bharathamma & Ors.
2004(8) SCC 517, Manager, National Insurance Company Ltd. vs. Saju Paul
2013 ACJ 554.
17.The appellant may comply with the award within four weeks from today.
18.The appeal stands disposed of.
JAYANT NATH, J
DECEMBER 12, 2014
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