Delhi High Court
Oriental Insurance Co. Ltd. vs Mahesh & Ors. on 27 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: March 27, 2017
+ MAC.APP.217/2009
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Amit Gaur & Mr. Pradeep
Gaur, Advocates
Versus
MAHESH & ORS. ..... Respondents
Through: Mr. Anuj Soni, Advocate with
claimant in person
+ MAC.APP.14/2017
MAHESH ..... Appellant
Through: Mr. Anuj Soni, Advocate with
claimant in person
Versus
ORIENTAL INSURANCE CO. LTD. & ORS. ... Respondents
Through: Mr. Amit Gaur & Mr. Pradeep
Gaur, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. In the above captioned two appeals, the challenge is to impugned
Award of 17th March, 2009 which grants compensation of `9,08,830/-
with interest @8% per annum on account of injuries sustained by
Claimant-Mahesh in a road accident on 12th April, 2005. Appellant is
Insurer of bus in question. The facts as noted in the impugned Award
need no reproduction. Suffice to note that the challenge in the above-
captioned first appeal is to the quantum of compensation granted whereas
in the above-captioned second appeal, enhancement of compensation is
sought by Claimant-Mahesh.
2. As per order of 14th September, 2010, service is complete.
3. With consent of learned counsel for the parties, the above-
captioned two appeals have been heard together as they arise out of
common impugned Award and are being decided by this judgment.
4. Learned counsel for Insurer submits that the functional disability
ought to be taken to be 30% as the Certificate issued by Institute of
Human Behaviour and Allied Sciences (IHBAS) gives the disability as
58.77%. It is next submitted by Insurer's counsel that the addition
towards „future prospects‟ has been erroneously made as the
Claimant/injured was working as a Field Boy and there is no
documentary evidence regarding his giving tuitions and the monthly
income ought to have been taken as `5,000/- per month instead of
`7,500/- per month.
5. It is also submitted by Insurer's counsel that it is a case of fake
driving licence and so, Insurer needs to be exonerated as the liability to
pay the compensation is of the driver and owner of the vehicle in
question, who had neither contested before learned Tribunal nor before
this Court.
6. On the contrary, learned counsel for Claimant/Injured submits that
the compensation awarded is inadequate and so, it deserves to be suitably
enhanced as the disability has now increased to 62.77%.
7. Copy of fresh Disability Certificate has been shown to the Court
but is not formally taken on record for the reason that it has not been
proved on record by way of additional evidence. It is pointed out by
learned counsel for Claimant-Injured that he is present in the Court and
actual disability suffered by him can be seen by this Court itself.
Regarding deduction of 1/3rd towards miscellaneous expenses, it is
submitted that this deduction is uncalled for as in injury cases, such
deduction is never made. It is next submitted by learned counsel for
Claimant-injured that no compensation under the head of amenities of life
has been granted, which ought to be granted. It is pointed out that
compensation of `20,000/- granted by learned Tribunal for loss of
marriage prospects and enjoyment of life is wholly inadequate and it
needs to be appropriately enhanced. Nothing else is urged on behalf of
either side.
8. Since this Court had an opportunity to interact with Claimant-
Injured present in the Court, therefore, it can be unhesitantly said that his
functional disability is not less than 50% and so, learned Tribunal has
erred in taking functional disability as 58.6%. Learned Tribunal has
assessed the loss of earning capacity as `6,32,880/- on account of mental
and physical disability, after deducting 1/3 towards miscellaneous
expenses, whereas in injury cases there is no provision for deduction
towards miscellaneous expenses and so, deduction of `3,16,440/- under
this head is unjustified. Learned Tribunal has also erred in doubling the
monthly income from `5,000/- to `10,000/- by adding future prospects.
Since Claimant-Injured was not in permanent employment, therefore,
addition towards future prospects is unjustified. However, computation
of monthly income of Claimant-Injured at `5,000/- p.m. is unwarranted
for the reason that there is positive evidence of Claimant-Injured to the
fact that he was earning `10,000/- p.m.by giving tuitions also and there is
no cross objection of Claimant-Injured on this aspect. In view thereof,
income of Claimant-Injured is taken to be `10,000/- p.m.
9. While taking into consideration the functional disability to be 50%
and by applying the multiplier of 18, the loss of earning capacity is
reassessed as under:-
`10,000/- X 12 X 18 X 50% = `10,80,000/-
10. Under the non-pecuniary heads, compensation granted appears to
be on the lower side. The compensation granted under the head of „loss of
marriage prospects‟ is enhanced from `20,000/- to `1,00,000/- and
Rs.1,00,000/- is granted under the head of "loss of amenities of life".
The compensation granted under the other heads i.e. special diet and
conveyance, future medical expenses, pain and suffering and medical
expenses incurred appear to be just and reasonable and is accordingly
maintained.
11. In the light of aforesaid, the reassessed compensation payable to
Claimant-Injured is as under: -
1. Loss of earning capacity ₹10,80,000/-
2. Loss of marriage prospects ₹1,00,000/-
3. Loss of amenities of life ₹1,00,000/-
4. Special diet and conveyance ₹15,000/-
5. Future medical expenses ₹1,75,000/-
6. Pain and sufferings ₹50,000/-
7. Medical expenses incurred ₹15,950/-
Total ₹15,35,950/-
12. So far as exoneration of Insurer from paying the awarded amount is
concerned, Supreme Court in Pushkar Mehra Vs. Brij Mohan Kushwaha
& ors. 2015 (12) SCC 688 has reiterated that it is the duty of Insurer to
pay in the first instance and then to recover it from driver and owner of
offending vehicle in question.
13. In view of aforesaid, compensation awarded is enhanced from
`9,08,830/- to `15,35,950/- (rounded off to `15,36,000/-). Appellant-
Insurer is granted six weeks' time to deposit the enhanced compensation
amount with interest @8% p.a. from the date of filing of the claim
petition till the date of deposit with learned Tribunal, who shall directly
release `2,27,170/- into the bank account of Claimant-Injured, on his
furnishing bank account details and the remaining amount of `4,00,000/-
be deposited into fixed deposit receipt in a nationalized bank in terms of
impugned Award.
14. Statutory deposit, if any, be refunded to Insurer as per Rules.
15. The above-captioned two appeals are accordingly disposed of
while modifying impugned Award in aforesaid terms.
(SUNIL GAUR)
JUDGE
MARCH 27, 2017
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