Delhi High Court
Rahul Jain vs M/S Bajaj Allianz General & Anr. on 8 May, 2014
Author: Deepa Sharma
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 1186/2013
% Date of decision: 8th May, 2014
RAHUL JAIN ..... Appellant
Through: Mr.Mohammad Mustafa,
Adv.
versus
M/S BAJAJ ALLIANZ GENERAL & ANR.
..... Respondents
Through: Mr.Priyadarshi Gopal and
Ms.Rameeza Hakim,
Advocates for R-1.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT (ORAL)
1. The brief facts of the case are that on 07.03.2010 at about 2
p.m. the appellant was standing at Rawat Auto Parts, Dilshad
Garden for getting his motorcycle repaired. One Wagon R car
bearing no.DL-7C-H-3026 which was being driven in a rash and
negligent manner at a high speed came from Mrignaini Chowk,
Dilshad Colony and hit the appellant. He was removed to the GTB
hospital and then referred to AIIMS hospital and from AIIMS he
was shifted to RML hospital. He suffered multiple fractures and
underwent several surgeries as his uro-genital system was badly
damaged and he suffered 100% permanent disability with regard to
his urinary tract system. He has also become impotent due to these
injuries. Doctor has also opined that the nature of his injuries
requires life-long follow up with Anmal Caliberating and
Dilatations in the hospital even after his treatment. Doctor has also
opined that due to erectile dysfunction on PIPE test tumuscouce
moderate Rigidity nil, patient is not capable to intercourse. He
needed three piece Penile implant for near normal physical (penile)
rehabilitation and intercourse and the disability for organ system
for erectile system was 100%. The petitioner at the relevant time
was a young boy of 32 years, married and having one child and it is
apparent that due to this disability he is incapable of having another
child. He was working as Sales Development Manager in HDFC
and drawing a salary of Rs. 19,135/- per month. As per the
disability certificate his disability was assessed as 32 % locomotor
disability.
2. Based on these facts, the learned Tribunal has awarded the
compensation to the appellant under the heading of "Pain and
Suffering" a sum of Rs.1 lakh, "Loss of amenities"- Rs.50,000/-
and "Shortening of life span" - 25,000/-.
3. The appellant has challenged the said order on various
grounds. However, during the arguments he has confined his
argument alleging that learned Tribunal ought to have added loss of
future prospect while calculating loss of future income.
4. Learned counsel for the insurance company has contended
that there is no such contention in the appeal and it was also not
raised before the learned Tribunal, therefore the same request
cannot be considered by this court.
5. Although, the appellant has raised this issue in the appeal for
the first time during the course of the argument, the question is
whether his request should be rejected solely on the ground that the
issue was not raised earlier. The issue relates to question of law
determining the entitlement of the appellant. The legislation
regarding grant of compensation to persons suffered disability in a
vehicular accident is a welfare legislation, the approach of the court
ought not to be rigid and if the injured is entitled to certain benefits
under the welfare legislation, the same shall not be rejected solely
on the ground that the same was not claimed earlier. The
contention of the appellant is certainly based on the findings in
Neerupam Mohan Mathur vs. New India Assurance Company
(2013) 14 SCC 15 wherein three judges bench of the Apex Court
has upheld the addition of 50% of the income towards future
prospects while calculating the loss of future earning on account of
permanent disability. The age of the injured was between 30 to 40
years and therefore 50% is to be added towards the loss of future
income. The income of the appellant was assessed to Rs.10,125/-
by the ld. Tribunal and the same is not in dispute. Thus, the total
income for the purpose of calculation of future loss is Rs.10,125 +
50% of Rs.10,125/- = 15187/-. Hence, the loss of income due to
disability comes to Rs. 15187/- X 12 X 16 (multiplier) = Rs.
2915904/-.
5. Learned Tribunal on the basis of all the facts and
circumstances of the case has reached to the conclusion that the
whole body disability for the purpose of calculation of loss of
income is 16% and I find no reason to differ with this finding. The
loss of total income due to 16% disability comes to
Rs. 2915904/-x16%= 466544.64 (Rounded of Rs.466,545/-).
6. The appellant has not disputed the grant of compensation
under several heads. I, therefore, hold that he is entitled to the
same compensation which has been awarded by the learned
tribunal except that of under the head of „Loss of Income‟.
The appellant is entitled to compensation as under:-
Loss of income
due to 16% disability Rs.4,66,545/-
Conveyance Rs. 20,000/-
Special Diet Rs. 15,000/-
Attendant charges Rs. 48,000/-
Medical Expenses Rs. 20,000/-
AMS Penile Implant Rs.3,83,000/-
Total Rs.9,52,545/-
7. The compensation is awarded to the petitioner with interest
@ 7.5 % per annum from the date of filing of the present petition.
The amount shall be deposited within six weeks. In case of default,
the petitioner shall be entitled to the interest @ Rs. 12% per annum
till its realisation from the date of default.
8. The appeal is disposed of in the above terms.
DEEPA SHARMA, J
MAY 08, 2014/rb
