Delhi High Court
Bajaj Allianz General Insurance ... vs Sanjeev @ Dev & Ors. on 19 March, 2015
$- 15 & 16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th March, 2015
+ MAC.APP. 486/2012
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Ms.Suman Bagga, Advocate
with Mr. Pankaj Gupta,
Advocate
versus
SANJEEV @ DEV & ORS. ..... Respondents
Through: Mr. O.P. Mannie, Advocate for
Respondent no.1.
+ MAC.APP. 626/2012
SANJEEV @ DEV & ORS.
..... Appellants
Through: Mr. O.P. Mannie, Advocate
versus
CHHATAR PAL & ORS. ..... Respondents
Through: Ms.Suman Bagga, Advocate
with Mr. Pankaj Gupta,
Advocate for Respondent no.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two appeals arise out of the common judgment dated
30.01.2012 passed by the Motor Accident Claims Tribunal (the
Claims Tribunal) whereby compensation of Rs.8,30,000/- was
awarded in favour of injured Sanjeev who suffered serious
injuries in a motor vehicular accident which occurred on
04.09.2010.
2. MAC.APP.486/2012 has been preferred by Appellant Bajaj
Allianz General Insurance Co. Ltd., whereas MAC.
APP.626/2012 has been filed by the victim.
3. For the sake of convenience, the Appellant in
MAC.APP.486/2012 shall be referred to as the Insurance
Company and the Appellant in MAC.APP.626/2012 shall be
referred to as the claimant.
4. Immediately after the accident, the claimant was removed to the
Holy Family Hospital. Therefrom, he was referred to Jai
Prakash Narayan Apex Trauma Centre, AIIMS. He suffered
degloving with fracture of toes, lateral, femoral and tibial
condyles. An internal fixator was fixed. He remained admitted
in Jai Prakash Narayan Apex Trauma Centre for 26 days. He
suffered permanent disability. While the claim petition was
pending before the Claims Tribunal, he was referred to Pt.
Madan Mohan Malaviya Hospital to assess his permanent
disability. The claimant was issued a Disability Certificate
indicating that he had suffered 81% permanent physical
impairment in relation to his right lower limb. The Claims
Tribunal awarded overall compensation of Rs.8,30,000/-, which
is tabulated hereunder:
Sl.Compensation under various Heads Awarded by
the Claims
No. Tribunal (in
Rs.)
1. Treatment Expenses 15,000/-
2. Conveyance 25,000/-
3. Special Diet & Attendant Charges 25,000/-
4. Pain, Suffering & Loss of 2,25,000/-
Amenities/Expectation of Life etc.
5. Permanent Disability & Loss of future 5,40,000/-
Income
TOTAL 8,30,000/-
5. It is urged by the learned counsel for the Insurance Company
that the claimant did not lead any evidence with regard to his
profession. The Claims Tribunal hence, erred in taking
functional disability to be 50%. It is also urged that the
compensation awarded towards non-pecuniary damages is on
the higher side.
6. On the other hand, the learned counsel for the claimant has
submitted that the compensation awarded towards disability and
non-pecuniary damages is on the lower side considering the
nature of the injuries suffered by him. Referring to the
photographs of the claimant placed on page 33 (Annexure-A) of
the MAC.APP.626/2012, the learned counsel states that the
claimant has been crippled for his life.
7. It is borne out from the record that the claimant not only
remained admitted in Jai Prakash Narayan Apex Trauma Centre
for 26 days, he also received outdoor treatment and
physiotherapy for at least four months after his discharge from
the hospital. The last advice for physiotherapy as per Ex.PW1/3
was given on 17.01.2011.
8. It is very unfortunate that not only the claimant failed to
disclose his profession in the claim petition, even in his
Affidavit produced by way of evidence, the claimant did not
examine any Doctor to prove as to how his day to day life and
working capacity has been affected on account of the permanent
disability to the extent of 81% suffered by him in respect of
right lower limb. Even if the claimant had failed to do so, the
Claims Tribunal itself could have summoned the Doctor who
had issued the Disability Certificate to make a real assessment
of the disability affecting his working capacity; otherwise the
Court has simply to speculate and make a guess work as to the
impact of the permanent disability on claimant's working
capacity. The Claims Tribunal was conscious of all these facts
and after analysing the same, it assessed the functional
disability to the extent of 50%. The medical prescriptions (OPD
Cards) placed on record reveal that fixator was directed to be
removed on 08.11.2010. Knee mobilisation and foot and ankle
mobilisation was advised to the claimant and he was advised to
report for review and assessment after one month. The claimant
again approached the Doctor on 03.01.2011 and 17.01.2011.
On the basis of the nature of the injuries suffered by the
claimant, it can be inferred that the claimant would have
difficulty in running, squatting and even walking. In the
absence of any specific evidence produced by the claimant with
regard to the functional disability, assessment of 50% seems to
be on the higher side. I tend to decrease the same to 40.5%.
(50% of the disability in respect of the right lower limb). The
compensation towards loss of future income on 40.5%
functional disability would therefore, come to Rs.4,36,068/-
(Rs.5,278/- x 12 x 17 x 40.5%).
9. A lumpsum compensation of Rs.2,25,000/- was awarded by the
Claims Tribunal towards pain and suffering, loss of amenities
and loss of expectation of life. Considering the long duration of
treatment and the fact that the claimant's right leg was put in
fixator and that he was hospitalised for almost a month and
remained an out of patient thereafter for at least four months,
the claimant would be entitled to a sum of Rs.1,00,000/-
towards pain and suffering and a sum of Rs.1,25,000/- towards
loss of amenities and loss of expectation of life. Thus, the
compensation awarded towards non-pecuniary damages cannot
be faulted.
10. However, the claimant ought to have been granted some
compensation towards loss of income during the period he
remained confined to bed and could not attend to his work.
(Rattan Lal Mehta v. Rajinder Kapoor 1996 ACJ 372.) I will
award a compensation of Rs.31,668/-(Rs.5,278/- x 6) towards
loss of income.
11. The compensation is recomputed hereunder:
Sl. Compensation under Awarded by Awarded by
No. various Heads the Claims this Court
Tribunal (in Rs.)
(in Rs.)
1. Treatment Expenses 15,000/- 15,000/-
2. Conveyance charges 25,000/- 25,000/-
3. Special Diet & Attendant 25,000/- 25,000/-
Charges
4. Pain, Suffering & Loss of 2,25,000/- 2,25,000/-
Amenities/Expectation of Life (1,00,000/-
etc. +1,25,000/-)
5. Permanent Disability & Loss 5,40,000/- 4,36,068/-
of Future Income
6. Loss of Income - 31,668/-
TOTAL 8,30,000/- 7,57,736/-
12. The overall compensation therefore, comes to Rs.7,57,736/-.
13. The compensation thus, stands reduced by Rs.72,264/-.
14. The excess amount of 72,264/- along with proportionate interest
shall be refunded to the Insurance Company.
15. The compensation payable to the claimant shall be held in Fixed
Deposit/released in terms of the orders passed by the Claims
Tribunal.
16. The appeals are disposed of in above terms.
17. Pending applications also stand disposed of.
18. Statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
MARCH 19, 2015
pst
