Delhi High Court
Reliance General Insurance Co. ... vs Rajesh & Ors. on 9 January, 2015
Author: G.P. Mittal
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 09th January, 2015
+ MAC. APP. No.1108/2012
RELIANCE GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. A.K. Soni, Advocate
Versus
RAJESH & ORS. .....Respondents
Through: Mr. S.S. Sisodia, Advocate for
Respondent no.1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This appeal is directed against the judgment dated 18.08.2012 whereby
compensation of Rs.7,97,137 was awarded by the Motor Accident Claims
Tribunal(the Claims Tribunal) in favour of Respondent no.1 for having
suffered serious injuries resulting in amputation of his right arm elbow in
an accident which occurred on 22.11.2009 at 11:00 p.m. while
Respondent no.1 was returning after attending a marriage in Village
Bagampur Khatola, Distt. Gurgaon.
2. The Claims Tribunal computed the compensation as under:
S.No. Head of Granted by
Compensation the Claims
Tribunal
1. Treatment Expenses Rs.7,012/-
2. Pain & Suffering Rs.25,000/-
3. Conveyance & Rs.5,000/-
Special Diet
4. Compensation on Rs.7,10,125/-
account of disability
5. Loss of enjoyment of Rs.50,000/-
life & amenities of
life
Total Rs.7,97,137/-
3. Immediately after the accident, Respondent no.1 was removed to Artemis
Medicate Services Pvt. Ltd., Gurgaon. On the next day i.e. 23.11.2009,
he was then shifted to Safdarjung Hospital, New Delhi. Below
amputation of right arm was carried out under general anesthesia on
01.12.2009. Respondent no.1 was discharged from the Hospital on
03.12.2009. He remained an outdoor patient in Safdarjung Hospital for
about two months. A disability certificate Ex.PW1/1 was issued stating
that Respondent no.1 has suffered permanent disability to the extent of
65% in respect of his upper right limb.
4. The Claims Tribunal awarded a compensation of Rs.7,012/- in respect of
the expenditure on medicines on the basis of bills which were placed on
record, Rs.5,000/- towards conveyance and special diet, Rs.25,000/-
towards pain and suffering and Rs.50,000/- towards loss of enjoyment
and loss of amenities in life, apart from the compensation of
Rs.7,10,125/- towards loss of earning capacity.
5. Mr. A.K. Soni, the learned counsel for the Appellant Insurance Company
urges that although Respondent no.1 had claimed in the claim petition
that he was working as a driver, yet there was not an iota of evidence
produced by the claimant to show that he was working as a driver. It is
urged that the Claims Tribunal erred in making an addition of 30% while
computing the loss of earning capacity.
6. I have perused the Affidavit Ex.PW2/A sworn by Respondent no.1. He
was completely silent that he was working as a driver. He has not given
the name of the employer. Thus, it is difficult to believe that Respondent
no.1 was employed as a driver.
7. The learned counsel for Respondent no.1 while defending the impugned
award submits that even if addition of 30% is not made in the minimum
wages as taken by the Claims Tribunal, the overall compensation
awarded cannot be said to be excessive or exorbitant as the compensation
towards pain and suffering, conveyance and special diet and loss of
enjoyment and loss of amenities is on the lower side.
8. It is not in doubt that Respondent no.1 lost his right forearm which will
definitely affect his functional capacity to earn, particularly when
Respondent no.1 claimed to be a driver although he failed to adduce any
evidence in this regard. Even if Respondent no.1 is taken as a menial
worker, loss of earning capacity in case of amputation or right forearm
below elbow can definitely be taken to be 65%. Loss of earning capacity
on the minimum wages of a skilled workman will come to Rs.5,46,249/-
(Rs.4,377/- x 12 x 16 x 65%).
9. Respondent no.1 was initially hospitalized in Artemis Medicate Services
Pvt. Ltd., Gurgaon and then he was shifted to Safdarjung Hospital where
he remained an indoor patient for a period of 11 days. As stated earlier,
Respondent no.1 remained an outdoor patient for a period of about two
months in Safdarjung Hospital. I agree with the contention of learned
counsel for Respondent no.1 that the compensation awarded towards pain
and suffering, loss of enjoyment of life and loss of amenities in life as
also disfigurement was on the lower side. Accordingly, the compensation
is recomputed as under:
S.No. Head of Compensation Compensation
granted by this
Court
1. Treatment Expenses Rs.7,012/-
2. Pain & Suffering Rs.50,000/-
3. Conveyance & Special Diet Rs.10,000/-
4. Compensation on account of Rs.5,46,249/-
disability
5. Loss of enjoyment of life & Rs.1,50,000/-
amenities of life and
disfigurement
Total Rs.7,63,261/-
10. In view of the compensation awarded, the compensation awarded by the
Claims Tribunal cannot be said to be excessive or exorbitant.
11. The appeal is devoid of any merit; the same is accordingly dismissed.
12. Pending applications, if any, also stands disposed of.
13. The amount deposited shall be released/held in Fixed Deposit in terms of
the orders passed by the Claims Tribunal.
14. The statutory amount of Rs.25,000/- shall also be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
JANUARY 09, 2015
pst
