Delhi High Court
Amitabh Hoskote vs Rohit Bhatia & Ors. on 27 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 27, 2017
(i) + MAC.APP. 24/2009
AMITABH HOSKOTE ..... Appellant
Through Mr. Manu Shahalia, Advocate
Versus
ROHIT BHATIA & ORS. .....Respondents
Through Mr. P. Achayra, Advocate
(ii) + MAC.APP. 756/2014
UNITED INDIA INSURANCE CO. LTD ..... Appellant
Through Mr. P. Acharya, Advocate
Versus
MAJOR AMITABH HOSKOTE .....Respondent
Through Mr. Manu Shahalia, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
Above captioned two appeals are directed against impugned Award
of 27th September, 2008 which grants compensation of `15,42,000/- with
interest @7.5% per annum to Claimant, who was injured in a road
accident on 25th August, 2003. Above captioned first appeal is by
Claimant, who is an Army Officer, a bachelor aged 33 years, to seek
Mac.App.756/2014
enhancement of compensation. Additional evidence has been led by
Claimant-Injured in this appeal to seek compensation of `24 lacs
towards future medical treatment whereas in above-captioned second
appeal, Insurer seeks reduction of compensation while asserting that it is
a case of contributory negligence and on the ground, Claimant must have
received reimbursement of his medical expenses as he is a government
employee.
With consent of learned counsel for the parties, both the above-
captioned appeals have been heard together and are being decided by this
common judgment.
Facts are already noted in the impugned Award and so need no
reproduction. Suffice to note that apart from evidence of Claimant-
Injured, there is evidence of other official witnesses, who have proved
medical treatment and service record of Claimant-Injured. Pertinently,
Insurer has not led any evidence. On the basis of evidence recorded,
learned Tribunal has rendered impugned Award.
Breakup of compensation awarded by learned Tribunal is as
under:-
S. No. Head Amount in `
1 Medical treatment `1,75,000/-
2 Conveyance charges `1,00,000/-
3 Special diet `25,000/-
4 Attendant charges `40,000/-
5 Loss of income `1,14,000/-
Mac.App.756/2014
6 Loss of earning capacity `5,38,000/-
7 Loss of promotional avenues `3,00,000/-
8 Loss of matrimonial prospects `1,00,000/-
9 Future treatment `50,000/-
10 Pain and agony `1,00,000/-
Total `15,42,000/-
To seek reduction of quantum of compensation awarded, learned
counsel for Insurer submits that Claimant was under influence of liquor
and that it is so evident from MLC of Claimant-Injured and thus,
contributory negligence of Claimant-Injured is 50%. It is also submitted
by learned counsel for Insurer that Disability Certificate disclosing 50%
disability is inadmissible in evidence as it has not been duly proved on
record. It is further submitted that conveyance charges includes travel of
Claimant-Injured from Akola, where he was taking his treatment, to
Delhi to give evidence and so, such conveyance charges ought to be
excluded. It is next submitted by learned counsel for Insurer that under
the head of Loss of income' `1,14,000/- has been erroneously granted as
Claimant-Injured has not remained on leave without pay and had drawn
full salary. It is next submitted by learned counsel for Insurer that
medical expenses of `1,75,000/- have been wrongly granted to Claimant-
Injured as he had obtained treatment from Army Hospital where
medicines are free. So, it is submitted that compensation granted
deserves to be suitably reduced.
Mac.App.756/2014
On the contrary, learned counsel for Claimant-Injured submits that
compensation granted by learned Tribunal is inadequate and it needs to
be suitably enhanced as 'future prospects' have not been taken into
consideration. It is pointed out by learned counsel for Claimant-Injured
that net salary of Claimant has been taken into consideration and not his
gross salary. It is further submitted that medical bills of `4 lacs are
already on record and `1,75,000/- only under this head has been granted.
It is submitted that apart from medical expenses of `4 lacs, additional
compensation of `24 lacs ought to be granted to Claimant to enable him
to obtain medical treatment with Ilizarov techniques. It is pointed out by
learned counsel for Claimant-Injured that the advanced medical
techniques are not available in the Army or Government hospital and this
treatment would enable Claimant to walk. Thus, it is urged that on the
basis of additional evidence led, medical expenses of `24 lacs towards
future medical treatment ought to be granted. Lastly, it is submitted by
learned counsel for Claimant-Injured that compensation under the head
"pain and suffering" is wholly inadequate and needs to be suitably
enhanced from `1 lac to `1.50 lacs. Nothing else is urged by either side.
Upon hearing and on perusal of impugned Award and evidence on
record, I find that Claimant-Injured was undoubtedly under the influence
of alcohol, but that by itself is not sufficient to impute contributory
negligence to injured-claimant for the reason that Section 185 of the
Motor Vehicles Act, 1988 mandates that level of alcohol in blood of
driver involved in accident, ought to be in excess of 30 mg, per 100 ml
of blood and this is to be detected by Breath Analyser Test and no such
Mac.App.756/2014
test has been conducted in the instant case to find out the level of alcohol
in blood of Claimant-Injured. So, no contributory negligence can be
attributed to Claimant-Injured. Similar view has been taken by a
Coordinate Bench of this Court in National Insurance Co. Ltd vs. Taj
Tappa & Ors., (2012) SCC Online Del 4538.
Regarding exclusion of travel charges from Akola to Delhi for
giving evidence, from conveyance charges, nothing has come in
evidence of Claimant-Injured as to how much expenses were incurred by
him to travel from Akola to Delhi to give evidence and so, there is no
basis to reduce conveyance charges granted to him. Medical expenses
have been claimed by injured-claimant on the basis of original medical
bills and so, medical expenses cannot be disallowed, as there is no cross-
examination of injured on this aspect.
Regarding the 'loss of income', it has to be kept in mind that
Claimant-Injured has availed his leave of the kind due and so, he had not
remained on leave without pay. Therefore, on this ground, compensation
granted under the head of 'loss of income' cannot be disallowed or
reduced. So far as medical expenses of `1.75 are concerned, this Court
finds that evidence of Claimant-Injured that medical bills of
`4,04,787.50/-, included conveyance charges, attendant charges and diet
expense is to be considered. Even if expenses under the head of medical
expenses, conveyance and attendant charges and diet expenses are
clubbed together, still compensation awarded by learned Tribunal under
these heads comes to `3,40,000/-, which is less than `4,04,787.50/-.
Accordingly, charges under these heads are put under a composite head
Mac.App.756/2014
of 'Medical Expenses' and are enhanced from `3,40,000 to
`4,04,787.50/- (round off to `4,04,800/-).
Compensation of `1 lac under the head "pain and agony" is
apparently on lower side as in an injury case, Supreme Court in Laxman
vs. Oriental Insurance Co. Ltd., (2011) 10 SCC 756 has granted
compensation of `1.50 lac under this head.
Supreme Court in Sunil Sharma & Ors vs. Bachitar Singh & Ors,
(2011) 11 SCC 425 has reiterated that gross salary minus income tax, is
to be considered as actual income and not as net salary. As per Salary
Certificate (Ex. P-1), Gross salary of Claimant-Injured was `21,216/- per
month and after deducting Income Tax of `2,860/-, it comes to `18,356/-
p.m. Annual actual income comes to `18,356 X 12 = `2,20,272/-. While
taking into consideration 20% functional disability and by applying
multiplier of 12, 'loss of earning capacity' is assessed at `6,16,761/-. So,
compensation awarded under the head 'loss of earning capacity' is
enhanced from `5,38,000/- to `6,16,761/-.
Under the head of 'future treatment', compensation of `50,000/-
has been awarded by learned Tribunal without any evidence from
medical expert. Additional evidence led by Claimant-Injured is regarding
the medical certificate (Ex. AW1/1), which is not duly proved by the
concerned doctor regarding effectiveness of treatment for reconstruction
of left lower limb of Claimant-Injured. Evidence on this vital aspect is
lacking. Considering the fact that original medical certificate has not
been proved on record by doctor concerned, it is deemed appropriate to
relegate Claimant-Injured to lead evidence before learned Tribunal to
Mac.App.756/2014
seek compensation under this head of 'future medical expenses. Such a
course is adopted as Supreme Court in Raj Kumar Vs. Ajay Kumar
(2011) 1 SCC 343 has reiterated that medical evidence is required to
corroborate evidence of claimant to seek future medical expenses. So,
compensation of `50,000/- under this head is disallowed for the time
being, with liberty to Claimant-Injured to file fresh application to seek
compensation under this head. Needless to say that Claimant-Injured
would be provided an opportunity not only to lead his own evidence
afresh but also to get the doctor, who issued medical certificate in May
2011, examined. Such a course is being adopted so that fresh medical
evidence regarding effectiveness of this advanced treatement also comes
on record to assess compensation payable under this head of 'future
medical expenses".
In light of aforesaid, compensation payable to Claimant-Injured is
reassessed as under:-
Medical expenses etc. `4,04,800/-
Loss of income `1,14,000/-
Loss of earning capacity `6,16,761/-
Loss of promotional avenues `3,00,000/-
Loss of matrimonial prospects `1,00,000/-
Pain and suffering `1,50,000-
Total `16,85,561/-
Consequently, impugned Award is modified with liberty to
Claimant-Injured to seek compensation from learned Tribunal under the
head 'future medical expenses' in the claim petition already in trial court
record.
Mac.App.756/2014
In view of Supreme Court's decision in Kalpana Raj & Ors vs.
Tamil Nadu State Transport Corp., (2015) 2 SCC 764, enhanced
compensation, after adjusting the compensation already
deposited/released to Claimant-Injured, shall carry an interest @ 9% per
annum from the date of claim petition, till date of deposit. Insurer to
deposit the enhanced compensation with interest within four weeks from
today before the learned Tribunal.
Statutory deposit, if any, be refunded to Insurer as per Rules.
With aforesaid directions, both these appeals are disposed of.
(SUNIL GAUR)
JUDGE
FEBRUARY 27, 2017
sm
Mac.App.756/2014
