Delhi High Court
National Insurance Company Ltd. vs Shweta Sharma & Ors on 1 December, 2017
$~R-612
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 01st December, 2017
+ MAC APPEAL 1068/2012 and CM 16918/2012
NATIONAL INSURANCE COMPANY LTD. ... Appellant
Through: Mr. L.K. Tyagi, Advocate
versus
SHWETA SHARMA & ORS ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appeal at hand challenges the award of compensation
granted by the Motor Accident Claims Tribunal (Tribunal) in favour
of the first respondent (claimant) by order dated 05.07.2012 in her
accident claim case (suit no.841/2008) instituted on 18.07.2006 for the
injuries sustained and the permanent disability suffered in the
consequence, in a motor vehicular accident that had occurred on
08.08.2004 due to the negligent driving of a motor vehicle described
as a bus bearing registration no.DL-1PB-0660 admittedly insured
against third party risk with the appellant (insurer) for the period in
question.
2. After some hearing, the counsel for the appellant was told that
in the opinion of this court, instead of being reduced, the
compensation in the case, as granted by the tribunal, is found to be
grossly deficient and therefore, it may be increased. The counsel,
however, insisted that the appeal may be considered on the
contentions urged.
3. The claimant had proved through evidence that the accident had
occurred due to the negligence on the part of the bus driver which
finding has attained finality. She has proved that the injuries suffered
by her were grievous in nature, they including degloving injuries of
the left thigh with fractures of shaft femur (left) and clavicle right
besides almost complete loss of skin over whole of thigh and upper leg
and other injuries all over the body. She also proved that she had
undergone prolonged treatment which included several surgical
procedures, she even having developed debridment of the skin of the
thigh and leg, the procedure underwent including interlocking nailing
for left fracture shaft femur and split skin grafting over whole thigh
and upper leg. In the course of the treatment, the claimant developed
infection which added to her agony. She lost muscles and skin in the
entire pelvic region and other parts of the leg rendering her prone to
infection. She was aged 17 years, a student of 12th standard, when the
injuries were suffered. The treatment having continued for two years,
she was constrained to miss out on the school leaving examination
(12th standard) held in March 2005 pushing her life back.
4. The claimant was examined by doctors of Pt. Madan Mohan
Malviya Hospital, Govt. of NCT of Delhi which issued a disability
certificate dated 13.05.2010 affirming her permanent physical
impairment to be 22% in addition to left lower limb. In the course of
her testimony, she examined Dr. Nikunj (PW-3) of the Department of
Orthopedic of the said hospital who, while proving the disability
certificate also affirmed her claim that she is unable to squat and thus
is denied a normal life. Dr. Mahesh Mangal, Chairman of the
Department of Plastic Surgery of Sir Ganga Ram Hospital was
examined by the tribunal on 03.09.2011 when he deposed that walking
triggers pain in the left thigh and unstable scars on the lower limb
result in frequent ulceration causing swelling, she requiring
reconstructive surgery, cost whereof assessed at that stage was in the
region of Rs.5.5 Lakhs.
5. Against the above backdrop, the tribunal has included, by the
impugned judgment, an amount of Rs.7,56,000/- as loss of income in
future assuming her income at the relevant point of time at Rs.9,000/-
p.m. and income loss due to disability assessed at Rs.3,500/- p.m. It is
clear that the tribunal has not actually made any assessment of the
functional disability suffered by the claimant. But from the
calculations, it appears to have proceeded on the assumption that the
disability is 39% which, in the opinion of this court, is inadequate.
6. Having regard to the medical conditions noted above, the
functional disability is taken as 50%. While the claimant was entitled
to compensation for loss of two years of study, she would be entitled
to loss of future income to be calculated accordingly. It is noted that
the award granted by the tribunal only covers the head of loss of future
income. In absence of any other suitable benchmark, the loss of two
years of study is compensated on the basis of notional income of a
matriculate, as on the date of the accident, such amount being in the
sum of Rs.3,342/-, rounded off to Rs.3,400/- p.m., the loss is
computed as [Rs.3,400/- x 24] Rs.81,600/-.
7. Coming to the loss of future income due to functional disability,
the element of future prospects of increase to the extent of 40% will
also have to be factored in. [see judgment of a Constitution Bench of
the Supreme Court rendered on 31.10.2017 in SLP (C) 25590/2014,
National Insurance Company Ltd. Vs. Pranay Sethi and Ors.]. On the
multiplier of 18, such loss is computed as [Rs.3,400 /- x 140/100 /2 x
12 x 18] Rs.5,14,080/-.
8. It is noted that the tribunal awarded Rs.50,000/- towards pain
and suffering and Rs.2,00,000/- towards loss of marriage prospects.
Having regard to the suffering undergone, the first mentioned head of
damages has not been properly covered, the same is increased to
Rs.2,00,000/-. Further, the deficiency in the award on account of loss
of amenities of life needs to be compensated. The amount of
Rs.1,00,000/- under the said head is added.
9. Putting together all the other heads of damages granted by the
tribunal, the total compensation is calculated as [Rs.2,00,000/- +
Rs.2,00,000/- + Rs.1,00,000/- + Rs.16,941/- + Rs.20,000/- +
Rs.20,000/- + Rs.5,14,080/- + Rs.81,600/- + Rs.5,05,000/-]
Rs.16,57,621/-, rounded off to Rs.16,58,000/- (Rupees Sixteen lakh
and fifty eight thousand only). Thus, the award instead of being
decreased is liable to be increased. Ordered accordingly.
10. Following the consistent view taken by this Court, the rate of
interest is increased to 9% per annum from the date of filing of the
petition till realization. [see judgment dated 22.02.2016 in MAC.APP.
165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.]
11. In terms of order dated 10.10.2012, the insurance company had
been directed to deposit sixty percent (60%) of the award amount with
up-to-date interest which was held back in a fixed deposit receipt for a
period of six months. The amount retained in fixed deposit receipt
with accrued interest shall be released to the claimant in terms of the
judgment of the tribunal. The insurance company is directed to satisfy
the enhanced award by requisite deposit of the balance of its liability
with the tribunal within 30 days whereupon it shall be released to the
claimant in the form of fixed deposit interest bearing receipt taken out
from a nationalized bank for a period of ten years with right to draw
periodic interest.
12. The statutory amount shall stand forfeited as costs in favour of
Delhi High Court Legal Services Committee and shall be made over to
it accordingly.
13. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
DECEMBER 01, 2017
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