Delhi High Court
Amitava Acharjee vs Kulwant Singh & Ors on 30 October, 2014
$~A-21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 30, 2014
+ MAC.APP. 715/2013
AMITAVA ACHARJEE ..... Appellant
Through Mr.A.K.Mishra, Mr.Hemant ,
Mr.N.K.Beniwal and Mr.Ashok
Mahipal, Advocates with appellant in
person
versus
KULWANT SINGH & ORS ..... Respondent
Through Mr.Pankaj Seth, Advocate for the
Insurance Company
+ MAC.APP. 781/2013
THE NEW INDIA ASSURANCE CO LTD..... Appellant
Through Mr.Pankaj Seth, Advocate
versus
MS ANURADHA ACHARJEE AND ORS..... Respondent
Through Mr.A.K.Mishra, Mr.Hemant ,
Mr.N.K.Beniwal and Mr.Ashok
Mahipal, Advocates alongwith
Mr.Amitava Chatterjee in person
+ MAC.APP. 774/2013
AMITAVA ACHARJEE ..... Appellant
Through Mr.A.K.Mishra, Mr.Hemant ,
Mr.N.K.Beniwal and Mr.Ashok
Mahipal, Advocates alongwith appellant
in person
versus
KULWANT SINGH & ORS ..... Respondent
Through Mr.Pankaj Seth, Advocate for the
Insurance Company
+ MAC.APP. 778/2013
THE NEW INDIA ASSURANCE CO LTD..... Appellant
MAC.APP.715/2013 & connected cases Page 1 of 15
Through Mr.Pankaj Seth, Advocate
versus
SHRI AMITAVA ACHARJEE AND ORS..... Respondent
Through Mr.A.K.Mishra, Mr.Hemant ,
Mr.N.K.Beniwal and Mr.Ashok
Mahipal, Advocates alongwith Amitava
Chatterjee in person
+ MAC.APP. 783/2013
THE NEW INDIA ASSURANCE CO LTD .... Appellant
Through Mr.Pankaj Seth, Advocate
versus
SHRI AMITAVA ACHARJEE AND ORS ..... Respondent
Through Mr.A.K.Mishra, Mr.Hemant ,
Mr.N.K.Beniwal and Mr.Ashok
Mahipal, Advocates alongwith Amitava
Chatterjee in person
+ MAC.APP. 772/2013
AMITAVA ACHARJEE & ORS ..... Appellant
Through Mr.A.K.Mishra, Mr.Hemant ,
Mr.N.K.Beniwal and Mr.Ashok
Mahipal, Advocates alongwith appellant
in person
versus
KULWANT SINGH & ORS ..... Respondent
Through Mr.Pankaj Seth, Advocate for the
Insurance Company
+ MAC.APP. 780/2013
ANURADHA ACHARJEE ..... Appellant
Through Mr.A.K.Mishra, Mr.Hemant ,
Mr.N.K.Beniwal and Mr.Ashok
Mahipal, Advocates
versus
KULWANT SINGH & ORS ..... Respondent
Through Mr.Pankaj Seth, Advocate for the
Insurance Company
MAC.APP.715/2013 & connected cases Page 2 of 15
JYANT NATH, J. (ORAL)
1. These are seven appeals three of them have been filed by the Insurance
Company seeking to impugn the Award and four appeals have been filed by the
claimants seeking enhancement of the compensation. The brief facts are that
on 28.12.2008 four members of the family, namely, Amitava Acharjee, his wife
Mondira Acharjee, daughter Anuradha Acharjee and son Ayush Acharjee were
returning from Amritsar to Delhi. Shri Amitava Acharjee was driving the car.
When they reached near Bahalgarh crossing, GT Road, Sonipat, a truck driven
by Kulwant Singh driver of the offending vehicle rashly and negligently
overtook the car of Mr.Amitava Acharjee and without giving any indicator
turned towards the left side. Having turned to the left the vehicle came to a halt
leaving no space for the vehicle of the claimant. Shri Amitava Acharjee applied
sudden emergency brakes but on account of there being no space left by the
offending vehicle his vehicle struck against the rear portion of the offending
vehicle. All four occupants suffered injuries and were moved to the Civil
Hospital. Smt.Mondira Acharjee succumbed to her injuries.
MAC.APP.No.715/2013
2. First I will deal with the Mac.App.No.715/2013. This is an appeal filed
by the claimant and pertains to claim petition No.149/2010 by which the
claimants had sought compensation for the damage caused to their vehicle. It
is submitted by the claimants that their insurance policy related only to a third
party insurance, theft, FIR and P.A. and not damage to the vehicle. It is urged
that the Tribunal noted that the claimants had incurred an expense of
Rs.1,08,120/- on repair of the vehicle. The Tribunal, however, noted that the
bills pertained to new parts fitted in the car. The Tribunal further noted that the
car was about eight years old. Hence, in the facts and circumstances the
Tribunal awarded Rs.50,000/- as just compensation on account of damage to
the vehicle of the claimants.
3. Learned counsel appearing for the appellant has strenuously urged that
merely because the vehicle was eight years old would not mean that the
claimant should be deprived of the expenses actually incurred by claimant and
that the claimant should be reimbursed the full expenses incurred in the repair
of the car, namely, Rs.1,08,120/-.
4. In my opinion, there is no merit in the present appeal. The Tribunal has
rightly awarded Rs.50,000/- as just and fair compensation on account of
damage to the vehicle of the claimant. Keeping in view the fact that the vehicle
was about eight years old there is no reason to interfere in the Award. The
present appeal is dismissed.
MAC.APP.No.774/2013 & 783/2013
5. MAC.APP.No.774/2013 is filed by the claimant Shri Amitava Acharjee
seeking enhancement of compensation awarded to him. MAC. App.
No.783/2013 is field by the insurance company seeking to impugn the Award
of compensation granted in the claim petition No.154/2010 filed by Shri
Amitava Acharjee. It was the case of the claimant Shri Amitava Acharjee that
due to the accident he suffered injuries and was taken to Kailash hospital. He
was said to have been diagnosed with post trauma epilepsy, fracture parietal
depressed fracture 8 mm with pneumocephalous and his left ear was ruptured
which was operated upon twice on 29.12.2008 and 8.1.2009. It is urged that
even after the operation there is a deformity in his face which has reduced
chances of his remarriage considerably and he has neurological disorder
because of the depressed fracture. He has stated that he is an advocate by
profession and was earning Rs.3,19,853/- per annum and because of the
accident he remained in bed for three months and had to follow up for
treatment for about two years. Reliance is placed on disability certificate
Ex.PW1/78 to state that he is suffering hearing impairment of about 40%.
6. The Tribunal based on the evidence on record assessed the functional
disability of Shri Amitava Acharjee at 10% and awarded the following
compensation:-
1. Pain and sufferings Rs.80,000/-
2. Loss of enjoyment and amenities Rs.60,000/-
3. Loss of earnings due to disability Rs.5,40,552/-
4. Loss of earnings for three months @ Rs.79,962/-
Rs.26,654/- per month
5. Compensation towards special diet and Rs.10,000/-
conveyance
6. Medical bills Rs.25,130/-
Total Rs.7,95,644/-
7. Learned counsel appearing for the appellant/Amitava Acharjee states that
the functional disability has been wrongly assessed at 10%. He submits that
the claimant has suffered hearing disability which over time is likely to
deteriorate. He submits that the functional disability should have been at least
assessed at 20%. He secondly submits that the Tribunal while assessing loss of
earnings for three months has taken the income as Rs.26,654/- per month. He
submits that the income of the claimant has been assessed on the Income Tax
Return for the year 2009-10 (Ex.PW1/77). This shows the gross income of
Rs.3,19,853/-. He submits that the Tribunal for assessing the monthly income
has divided this figure by 12 for being 12 months in a year and assessed the
monthly earnings as Rs.26,654/- per month and awarded Rs.79,962/- as loss of
earning for three months. It is submitted that the return for 2009-10 was
actually return of nine months of work inasmuch as admittedly the claimant
was on bed rest for three months. Hence, it is submitted that the figure of
Rs.3,19,853/- had to be divided by 9 to come at the monthly figure which
would come to Rs.35,539/- per month. Hence, according to the appellant the
loss of earning for three months would be Rs.1,06,617/- instead of Rs.79,962/-.
It is lastly submitted that no compensation has been awarded for disfigurement.
8. As far as functional disability is concerned PW1 Amitava Acharjee has
in his evidence said that he has deformity in the face which has reduced
chances of remarriage. He further said that he is having neurological disorder
because of the depressed fracture in the skull. He has stated that he is unable to
concentrate for more than an hour at a stretch and this is hampering his day to
day life and profession. He further states that loss of hearing is a big problem
in the legal profession.
9. There is no cross-examination of PW-1 on this aspect.
10. Similarly, PW-11 Dr.Rakesh Kumar, Associate Professor, ENT
Department, AIIMS, New Delhi has confirmed that he is a member of the
Disability Board and that Shri Amitava Acharjee has suffered permanent
disability of less than 40% in relation to hearing loss. He has stated that he is
unable to assess disability in relation to the whole body and that the fact of
disability of a particular person will depend on the nature of job/avocation of
the person. He has affirmed that hearing power can be improved with the help
of a hearing aid but cannot be fully improved.
11. Keeping in view the fact that the claimant Shri Amitava Acharjee is an
advocate by profession, in my opinion, the faculty of hearing would be
important for discharge of his professional duties. Impairment of hearing
would hamper his functioning as an advocate. In my opinion, it would be
appropriate that the functional disability of the claimant is increased from 10%
to 20%. Loss of earning due to disability would hence now be Rs.10,81,103/-
(Rs.4,15,809 x 13 x 20/100)
12. Regarding the second submission pertaining to the loss of earnings for
three months as per the claimant the Income Tax Return for the year 2009-10 is
for earning of nine months. It was for the claimant to have filed his earlier
ITRs which admittedly he has not filed. Hence, I see no reason to increase the
compensation on account of loss of earnings for three months.
13. On the third contention of disfigurement no evidence has been placed on
record to show any disfigurement which would warrant compensation for the
same. I reject the said contention of the appellant.
14. Coming to the contentions of the appellant/insurance company, the
learned counsel has contended that there is no loss of earning capacity and that
the claimant is in a position to earn and carry on his livelihood and he continues
to do well in the profession. In my opinion, keeping in view of the reasoning
stated above there is no merit in the said contentions. Hence,
MAC.App.No.774/2013 and 783/2013 are accordingly disposed of.
15. Total compensation payable to Shri Amitava Acharjee would be as
follows:-
1. Pain and sufferings Rs.80,000/-
2. Loss of enjoyment and amenities Rs.60,000/-
3. Loss of earnings due to disability Rs.10,81,103/-
4. Loss of earnings for three months @ Rs.79,962/-
Rs.26,654/- per month
5. Compensation towards special diet and Rs.10,000/-
conveyance
6. Medical bills Rs.25,130/-
Total Rs.13,36,195/-
MAC.APP.No.772/2013 & 778/2013
16. These two appeals arise out of Petition.No.167/2010 pertaining to the
death of Smt.Mondira Acharjee. MAC.App.No772/2013 is filed by the
claimants for enhancement of compensation. MAC.App.No.778/2013 is filed
by the insurance company seeking to impugn the Award.
17. Smt.Mondira Acharjee succumbed to her injuries in the accident. She is
stated to have done graduation in Science and was an ICWA (later upgraded as
FICWA). She was 42 years of age working with M/s.Jai Prakash Associates as
Deputy Financial Controller. She was stated to be getting a salary of
Rs.49,180/- per month besides various other incentives. The Tribunal based on
the evidence of PW-1 Shri Amitava Acharjee, PW-2 Shri Arun Kumar Sharma,
Officer Personal from Jai Prakash Associates Ltd., PW-5 Mr.Ajay Rajoria,
Manager, Accounts from Jai Prakash Associates Ltd., PW-6 Shri T.D.Joshi,
AGM Shares, Jai Prakash Associates, PW-7 Shri Sandeep Vasudeva, Assistant
Manager, Secretarial, Jai Prakash Associates, PW-8 Shri Gautam Gupta,
Assistant Manager, National Stock Exchange, Delhi, PW-12 Shri Brij Mohan
Mishra, Tax Assistance, Income Tax Department, concluded that the total
annual income of the deceased was Rs.5,90,160/- besides bonus and incentives
to the tune of Rs.78,801/- making a total of Rs.6,68,961/-. The Tribunal taking
into account the judgment of the Supreme Court in Rajesh & Ors. vs. Rajbir
Singh & Ors., (2013) 9 SCC 54 added future prospects of 30%. The Tribunal
also noted that the deceased had the option of share purchase of the employer
and assessed the income from shares at Rs.1,27,623/- per annum on this count.
Future prospects were not added to this amount. Hence, the total income was
assessed at Rs.9,28,866/- (7,03,754 + 97,489 + 1,27,623). The Tribunal
further noted that the deceased had two minor children therefore 1/3 rd of the
total income was taken towards personal expenses. As the deceased was 43
years of age multiplier of 14 was applied and a total compensation for loss of
dependency was worked out to be Rs. 86,69,416/-. Rs.25,000/- was added for
love and affection, Rs.10,000/- for loss of estate, Rs.25,000/- towards funeral
expenses and Rs.1 lac for loss of consortium. Hence, total compensation of
Rs.88,29,416/- was awarded.
18. Learned counsel appearing for the claimant has made three submissions
seeking enhancement of the compensation awarded. He firstly submits that the
deceased had received 4000 shares of M/s.J.P. Associates as an employee since
2002. He submits that these shares have been received over a period of six
years and not 14 years as taken by the Tribunal. Hence, it is urged that instead
of adding Rs.1,27,623/- from the income of shares Rs.2,97,787 ought to have
been added on account of income from shares. It is secondly urged that the
Tribunal has wrongly awarded 30% increase in future prospects. Reliance is
placed on the judgment of the Supreme Court in the case of New India
Insurance Company Limited vs.Gopali, AIR 2012 SC 3381 to claim that
future prospects @100% should have been added.
19. It is lastly submitted that the compensation for love and affection of
Rs.25,000/- is on the lower side and this should have been on the higher side.
20. On the other hand learned counsel for the insurance company has argued
that income from shares should not be added to the income of the deceased
inasmuch as the shares had been transferred in the name of the claimant. He
further submits that no future prospects should be added to the income sought
to have been derived from the shares. He has also pointed out that there are no
dependants in this case as the husband is also earning and is not dependent
upon the wife. Hence 50% of the income has to be deducted towards personal
expenditure. He also seeks to challenge the grant of 30% increase in income on
account of future prospects.
21. As far as the contentions of the claimant are concerned, in my opinion,
there is no merit in the same. There is nothing on record to show that the
shares which have been allotted to the deceased were allotted over period of six
years as claimed by the claimants.
22. PW-6 Shri T.D.Joshi, AGM, Shares, Jai Prakash Associates had brought
the details of the shares allotted to the deceased. He has stated that the face
value of the shares of Jai Prakash Industries (now Jai Prakash Associates) is
Rs.2/- each but at the time of allotment was Rs.10/- each. He has further said
that shares are allotted to employees irrespective of the length of service. He
has further pointed out that deceased applied for shares in pursuance of the
application and was allotted 700 shares of JPVL, 700 shares of JIL and 1400
shares of GACL. He has further said that he knows nothing about the shares
allotted to the deceased in 2002.
23. PW-7 Shri Sandeep Vasudeva, Assistant Manager, Secretarial, Jai
Prakash Associates had brought the original Jaypee Employee Stock Purchase
Scheme-2002. He has in his cross-examination said that there is no mandatory
provision for the employees regarding allotment of shares and that it was an
open scheme for employees on roll of the company and was an option.
24. PW-8 Shri Gautam Gupta, Assistant Manager, National Stock Exchange,
Delhi had confirmed in his cross-examination that the price of shares of the
market fluctuate on a day to day basis.
25. In the light of the above evidence, in my opinion, there is nothing on
record to demonstrate as to over which period of time the shares have been
allotted to the deceased. There is nothing to show that the shares were allotted
over the period of six years as claimed by the claimants. Accordingly, there is
no merit in the said submission of the appellant.
26. Coming to the next two submissions of the claimants, namely, adding
future prospects of 100% and increasing the compensation on account of love
and affection, in my opinion, there is no merit in the said contention. The
Tribunal based on a detailed examination of the evidence on record has
assessed the income of the deceased at Rs.5,90,160/-. The Tribunal has added
income from perks, shares and future prospects and assessed total income at
Rs.9,28,866/- per annum and granted loss of dependency of Rs.86,69,416/-.
The compensation awarded is fair, just and reasonable.
27. Coming to the contentions of the insurance company, in my opinion,
there is no merit in the said contentions. Firstly, no future prospects have been
added to the share income. Secondly, it is true that the husband of the deceased
was not financially dependent on the deceased. However, she has left behind
two minor children who would certainly be financially dependent upon the
deceased. The Tribunal has rightly deducted 1/3rd of total income towards
personal expenses.
28. On future prospects the Tribunal has relied upon the judgment of Rajesh
& Ors. vs. Rajbir Singh & Ors. (supra).
29. Accordingly, there is no reason to interfere in the said Award of the
Tribunal. Both the appeals are dismissed.
MAC.APP.No.780/2013 & 781/2013
30. These two appeals arise out of petition No.166/2010 filed on account of
injuries sustained by the daughter of Shri Amitava Acharjee, namely,
Ms.Anuradha Acharjee. Ms.Anuradha Acharjee suffered fracture of jawbone at
three places i.e. fracture mandible parasymphysis, fracture right condyle,
fracture dentoalveolar region 21/12. She was operated and her entire teeth were
stitched and she had to remain on liquid diet for 6 weeks.
31. Based on the above, the Tribunal awarded the following compensation:-
1. Pain and sufferings Rs.80,000/-
2. Compensation towards dis-figuration of Rs.50,000/-
face
3. Loss of marriage prospects Rs.1,00,000/-
4. Loss of studies of four month Rs.20,000/-
5. Special diet and conveyance Rs.30,000/-
6. Loss of amenities & enjoyment Rs.50,000/-
Total Rs.3,30,000/-
32. Learned counsel appearing for the claimant states that the claimant had
30% disability in relation to her face and has suffered from face and jaw
impairment and bad looks. It is urged that she should have been given
compensation for loss of income due to disability. She was of 16 year and
studying in class X and was doing well.
33. Learned counsel appearing for the appellant/insurance company states
that the disability is a cosmetic disability and is not a functional disability. He
submits that there is no functional inconvenience caused to the claimant.
Hence, no amount as sought by the claimant is payable.
34. A perusal of the evidence shows that PW 10 Dr.Binod Kalita, Specialist,
Orthopaedics, LBS Hospital, Delhi has exhibited the original disability
certificate as Ex.PW9/1. He has confirmed that Ms.Anuradha Acharjee
suffered permanent disability of 30% in relation to her face.
35. The disability certificate Ex.PW9/1 reads as follows:-
" After examination of Smt.Anuradha Acharjee the board has
come to the conclusion that Smt.Anuradha Acharjee is suffering
from Mandible R and she has a permanent physically disability
of 30% (thirty percent) in relation to face in case of temporary
disability she will require re-evaluation after ... month/year for
issuance permanent disability certificate, if any."
36. PW-9 Ms.Anuradha Acharjee has said in her evidence stated that she is
a student of B.A.(Hons.)2nd Year at Maharaja Agrasen College.
37. PW-1 Mr.Amitava Acharjee in his evidence by way of affidavit has
stated as follows:-
"As my daughter is in her growing age it was too difficult to
remain in complete liquid diet for six weeks and all the diet had
to be taken from molar. Even now the risk of deformities in
growth from the points of crack cannot be ruled out due to her
growing age. Hence, the actual disability can be ascertained only
after treatment is over. Due to the unfortunate accident she had
suffered terrible trauma and shock and is still unable to
concentrate in her studies. My daughter had to remain under
untold pain and suffering apart from the loss sustained to her
studies."
38. The above is the sum and substance of the evidence filed by the
claimants to show the functional disability suffered of Ms.Anuradha Acharjee.
39. It is quite clear from the above evidence that the claimants have not been
able to show any functional disability suffered by Ms.Anuradha. The Tribunal
has rightly awarded no amount for functional disability
40. As no amount has been awarded for functional disability as claimed by
the claimant Ms.Anuradha Acharjee the appeal filed by the insurance company
being MAC.App.781/2013 is dismissed.
41. However, keeping in view the nature of injuries suffered by a young girl
in the accident I increase the compensation for pain and sufferings from
Rs.80,000/- to Rs.2 lacs. I also increase the compensation for loss of marriage
prospects from Rs.1 lacs to Rs.2 lacs. Similarly for loss of amenities and
enjoyment also I increase the sum from Rs.50,000/- to Rs.2 lacs. The total
compensation will now read as under:-
1. Pain and sufferings Rs.2,00,000/-
2. Compensation towards dis-figuration of Rs.50,000/-
face
3. Loss of marriage prospects Rs.2,00,000/-
4. Loss of studies of four months Rs.20,000/-
5. Special diet and conveyance Rs.30,000/-
6. Loss of amenities & enjoyment Rs.2,00,000/-
Total Rs.7,00,000/-
.
42. The insurance company may deposit the enhanced compensation in
Court alongwith interest @9% per annum from the date of filing the claim
petition till deposit in Court. Enhanced compensation as awarded in
MAC.App.No.774/2013 shall be paid to Mr.Amitava Acharjee. The enhanced
compensation in MAC.App.No.780/2013 be paid to Ms.Anuradha Acharjee.
43. Both the appeals stand disposed of accordingly.
44. Statutory amount paid by the Insurance Company in its appeal be
refunded to the Company.
45. All interim orders stand vacated.
JAYANT NATH, J
OCTOBER 30, 2014
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