Delhi High Court
National Insurance Co. Ltd. vs Pragya Ghildial & Anr. on 28 October, 2014
$~A-5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 28, 2014
+ MAC.APP. 502/2008
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through Mr.Pradeep Gaur, Advocate.
versus
PRAGYA GHILDIAL & ANR. ..... Respondents
Through Mr.O.P.Manie, Advocate for the
claimant/R-1.
+ MAC.APP. 35/2009
PRAGYA GHILDIAL ..... Appellant
Through Mr.O.P.Manie, Advocate
versus
THE NATIONAL INSURANCE CO.
LTD. & ANR. ..... Respondents
Through Mr.Pradeep Gaur, Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present two appeals arose out of the Award dated 29.07.2008. It
appears that in the first round of litigation before this court appeals were
dismissed by this court and the matter has been remanded back by the Supreme
Court pursuant to judgment dated 18.10.2012.
2. The brief facts of the case giving rise to the present appeals are that the
claimant Pragya Ghildial was travelling on her two wheeler on 02.05.2005. She
was going from her house at Laxmi Nagar towards Vaishali, Ghaziabad. When
she reached Coffee Home at Preet Vihar she was hit by a car said to be driven
at a high speed rashly and negligently. The claimant fell down and was
removed to Deepak Memorial Hospital. As per her contention she is
completely paralysed below the stomach. She claims to have been a Yoga
Teacher earning Rs.23,500/- per month and that the accident ruined her life.
3. MAC. APP. 502/2008 is filed by the appellant Insurance Company
seeking to impugn the Award on the grant of compensation to the claimant.
MAC. APP.35/2009 is filed by the claimant seeking enhancement of the
compensation awarded by the Tribunal.
4. Based on the evidence on record the Tribunal awarded a total
compensation of Rs.20,06,622/- break-up of which is as follows:-
1. Pain and Sufferings Rs.75,000/-
2. Medical Expenses Rs.3,95,580/-
3. Attendant charges Rs.9,000/-
4. Special Diet Rs.50,000/-
5. Loss of income during treatment Rs.80,000/-
6. Conveyance Rs.30,000/-
7. Loss of income owing to the disability Rs.8,40,000/-
(Rs.80,000 X
17 -1/3 )
8. Future medical expenses Rs.50,000/-
9. Loss of marriage prospects Rs.1,00,000/-
10. Loss of academic year in education Rs.1,00,000/-
11. Expenses on attendant for the life Rs.3,00,000/-
12. Expenses on conveyance & loss of amenities in Rs.1,00,000/-
life
13. Shortening of life span on account of injury Rs.1,00,000/-
Total Rs.22,29,580/-
(-) 10% of the total award toward negligence Rs.222958/-
Compensation payable Rs.20,06,622/-.
Considering the blameworthiness of the petitioner towards the accident
at 10%, the compensation payable to the claimant was calculated at
Rs.20,06,622/-.
5. I will first deal with MAC. APP. 502/2008 filed by the appellant
Insurance Company.
6. Learned counsel appearing for the appellant has made two submissions
to impugn the Award. He firstly submits that the Tribunal has held it to be a
case of contributory negligence holding the extent of liability/negligence of the
offending car to be 90% and attributed only 10% of negligence to the claimant.
He submits relying upon the site plan that this is incorrect and contributory
negligence of 50% should be fastened on the claimant and on the offending
vehicle which is insured by the appellant Insurance Company. He secondly
submits that the Tribunal has without any evidence on record fixed the
physical/functional disability of the claimant at 100% and accordingly awarded
Rs.8,40,000/- for loss of income owing to the disability. He submits that the
said figure is entirely incorrect and is not in conformity with the evidence on
record.
7. A perusal of the Award shows that the Tribunal noted that there is the
oral testimony of both the claimant and the driver of the offending vehicle
which is contradictory to each other. The Tribunal noted that there is nothing to
show that the car was coming from the wrong side. The Tribunal concluded
keeping in mind the fact that the accident took place between two vehicles
proceeding in opposite directions that the aspect of claimant's negligence
cannot be altogether put into oblivion and hence, the Tribunal concluded that
some contributory negligence on the part of the claimant could be seen from
the site plan and that the claimant ought to have been more careful inasmuch
as she was proceeding towards the main road Vikas Marg and was very near to
a major intersection. Hence, the Tribunal assessed the blameworthiness on the
part of the claimant at 10%.
8. On the loss of income the Tribunal noted the medical records that the
claimant suffered a fracture in the right leg, spinal injuries and paralysis in the
lower portion. The Tribunal noted the evidence of PW-2-Orthopedic from
RML Hospital who had deposed that the claimant had suffered 100% disability
and she met with a traumatic paraplegia. Disability certificate was proved as
Ex.PW-2/A. The Tribunal noted that the claimant was a Yoga Instructor which
was proved by Ex.PW-1/2 which is a diploma issued by Naturopathy and Yoga
Academy, Delhi and vocational certificate issued by National Institute of Open
Schooling. The Tribunal also noted that the claimant had completed a course in
naturopathy and Yoga from Gujarat Ayurved University which was a diploma.
The Tribunal also noted that the claimant had proved her income tax
assessment for the year 2005-2006 which shows an income of Rs.1,06,189/-. In
cross-examination she had admitted that the return is a single one and filed
after the accident. Based on this evidence, the Tribunal concluded that her
income would be Rs.80,000/- per annum. The Tribunal also assessed the
functional disability at 100%. Accordingly, using the multiplier of 17 the
Tribunal deducted 1/3 as expenses that the claimant would have spent on
herself and assessed the loss of dependency at Rs.8,40,000/-.
9. The claimant in her statement by way of affidavit has explain her serious
nature of injuries as follows:-
"I received the following injuries:-
i. Fracture right leg, rod has been inserted.
ii. Spinal injuries.
iii. Lower portion below stomach has been paraylised. Due to the
injuries I have become 100% disabled in the accident."
10. She explained her qualifications in yoga as follows:-
"4. I passed twelfth class in the year 2001. I thereafter did the
following courses in Yoga and received certificates in Yoga from
them I am a trained Yoga Instructor.
i. National Institute of open schooling, New Delhi.
ii. Akhil Bharatiya Prakritik Chiktsa Parishad, New Delhi.
iii. Nuturopathy and yoga, Academy Bapu Nature cure
Hospital and yogashram, Gandhi Nidhi, Patparganj, Delhi.
iv. Vivekananda yoga Mahavidyapeetham, Banglore,
Karnataka.
5. I was also studying B.A. through correspondence. I was to
appear for B.A. final examination on 6.5.05. As I met with
accident on 2.5.05, I could not appear for the examination. My
parents are working. Due to the 100% disability I need a nurse to
look after me throughout the day."
11. In her cross-examination she says as follows:-
"These days from 8.30 to 9.30 in the morning, I attend YWCA for
a course of Air Ticketing and Fare. At about 11.30, I attend
hospital for physiotherapy and I go there in a Taxi with a Nurse. In
the evening, I stay at home. I still remember the Yoga knowledge
but I am unable to perform the same. Yoga can be taught without
demonstrating AASANS. If I do not undergo physiotherapy
exercise, my lower limb will jam and there is no improvement. My
present age is 24 years old. It is wrong to suggest that I am
deposing falsely about the disablement."
12. Her disability certificate reads as follows:-
".. is a case of Traumatic paraplegia (#D12, L1) with bladder and
bowel involvement. She is physically disabled and has 100% (One
Hundred percent) permanent (physical impairment) in relation to
his/her whole body."
13. In the light of the above evidence it is clear that the claimant is unable to
carry out her known profession of a yoga teacher. General principles relating to
compensation in injury cases were elaborated by the Supreme Court in the case
of Raj Kumar vs. Ajay Kumar and Anr., (2011) 1 SCC 343 in paragraph 10.
Relevant portion of which reads as follows:-
"14....For example, if the left hand of a claimant is amputated, the
permanent physical or functional disablement may be assessed
around 60 per cent. If the claimant was a driver or a carpenter, the
actual loss of earning capacity may virtually be hundred percent, if
he is neither able to drive or do carpentry. On the other hand, if the
claimant was a clerk in government service, the loss of his left
hand may not result in loss of employment and he may still be
continued as a clerk as he could perform his clerical functions; and
in that event the loss of earning capacity will not be 100 per cent
as in the case of a driver or carpenter, nor 60 per cent which is the
actual physical disability, but far less. In fact, there may not be any
need to award any compensation under the head of 'loss of future
earnings', if the claimant continues in government service, though
he may be awarded compensation under the head of loss of
amenities as a consequence of losing his hand...."
14. Keeping in view the nature of disability suffered by the claimant, she
obviously cannot teach yoga, the profession she was following. Keeping in
view the evidence as above, in my opinion there are no grounds to differ with
the findings of the Tribunal assessing the functional disability of the claimant at
100%.
15. Coming to the findings of the Tribunal in relation to contributory
negligence, the reasoning of the Tribunal does not appear to be correct. Merely
because the claimant was proceeding towards the main road cannot be a ground
to assess that she had 10% contribution to the accident in question.
16. A perusal of the site plan shows that it does not throw any light as to how
the accident had taken place. In fact the accident had taken place when the
scooter was proceeding towards the main road, which is while facing the site
plan is almost on the extreme right side corner. That would be the path that the
scooter would have normally taken. As the accident has taken place on that
side, it is obvious that the car/offending vehicle has strayed off its path and hit
the scooter after having gone off its own course i.e. its side of the road.
Accordingly, there are no grounds to state that the contribution of the claimants
should be 50% towards the accident as has been argued by the appellant.
17. The present appeal is dismissed.
18. The statutory amount, if any, paid by the appellant at the time of filing of
the appeal, the same may be refunded to the appellant.
MAC. APP.35/2009.
19. This appeal is filed by the claimant seeking enhancement of
compensation. Learned counsel appearing for the claimant has made various
submissions in support of his appeal. It is firstly submitted that the Tribunal
while assessing loss of income due to disability has wrongly deducted 1/3 rd for
personal expenses which is a deduction which is not made in the case of an
injury. Secondly it is submitted that having assessed the income of the claimant
at Rs.80,000/- per annum no increase has been added on account of future
prospects. It is thirdly submitted that the deduction of 10% on account of
alleged contributory negligence is incorrect and the compensation has been
wrongly reduced by 10%. Leaned counsel submits that the driver of the
offending vehicle in the criminal case proceedings has voluntarily pleaded
guilty of the offence of Section 279/338 IPC. Hence he submits that even
otherwise there are no grounds to attribute any component of negligence on the
claimant. It is next submitted that grant of Rs.75,000/- for pain and sufferings
is on the lower side. It is lastly submitted that the multiplier should be 18 and
not 17 as taken by the Tribunal.
20. As far as deduction of 1/3rd is concerned, reference may be had to the
judgment of the Supreme Court in the case of Raj Kumar vs. Ajay Kumar and
Anr.(supra) where it has been clearly held that no deduction has to be made
for personal expenditure in the case of injury. Hence, deduction of 1/3 rd for
personal expenditure is erroneous and is set aside.
21. As far as 10% deduction for contributory negligence is concerned, I
have already held that the conclusion of the Tribunal that there was 10%
contributory negligence on the part of the claimant is a finding without any
basis and contrary to the facts on record. I set aside the said finding and grant
full compensation to the claimant inasmuch as no responsibility can be fastened
on the claimant for the said accident.
22. There is no dispute that the Tribunal has taken a wrong multiplier of 17
instead of 18.
23. On the issue of future prospects, the Tribunal assessed the income of the
claimant at Rs.80,000/- per annum. In view of the judgments of the Supreme
Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC 54,
Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505 and V.Mekala vs.
M.Malathi & Anr., 2014 ACJ 1441, the assessed income of Rs.80,000/- per
annum should be increased by 50% for future prospects for calculation of loss
of income due to physical disability.
24. Coming to the last contention regarding the compensation of awarded
towards pain and suffering, keeping in mind the date of the accident as of 2005,
there are no grounds to change the award. Award of Rs.75,000/- for pain and
suffering as in the said facts and circumstances considering compensation
awarded under other heads of the case is fair and reasonable.
25. Total compensation with the above changes would now come to
Rs../35,49,580/- as follows:-
1. Pain and Sufferings Rs.75,000/-
2. Medical Expenses Rs.3,95,580/-
3. Attendant charges Rs.9,000/-
4. Special Diet Rs.50,000/-
5. Loss of income during treatment Rs.80,000/-
6. Conveyance Rs.30,000/-
7. Loss of income owing to the disability Rs.21,60,000/-
(Rs.80,000/- + 50%) x 18
8. Future medical expenses Rs.50,000/-
9. Loss of marriage prospects Rs.1,00,000/-
10. Loss of academic year in education Rs.1,00,000/-
11. Expenses on attendant for the life Rs.3,00,000/-
12. Expenses on conveyance & loss of amenities in Rs.1,00,000/-
life
13. Shortening of life span on account of injury Rs.1,00,000/-
Total Rs.35,49,580/-
26. The Insurance Company may deposit the additional compensation
amount within six weeks from today with pendente lite interest @6% from the
date of the filing of the appeal till deposit. On receipt of the amount, 50% of the
amount be released to the claimant and balance 50% be kept in a fixed deposit
for six years on which the claimant will receive quarterly interest from the
bank.
27. The appeal stands disposed of.
JAYANT NATH, J
OCTOBER 28, 2014/rb
