Delhi High Court
The Oriental Insurance Co. Ltd. vs Usha Bhagchandani & Ors. on 9 October, 2017
$~1 & 2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 9th October, 2017
+ MAC.APP. 23/2008
THE ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. P.K. Seth, Adv.
versus
USHA BHAGCHANDANI & ORS. ..... Respondents
Through: Mr. Rohan Thawani & Ms.
Gunjan Ahuja, Advs. for R-1
with respondent no. 1 in person.
+ MAC.APP. 1030/2015
USHA BHAGCHANDANI ..... Appellant
Through: Mr. Rohan Thawani & Ms.
Gunjan Ahuja, Advs. with
appellant in person.
versus
THE ORIENTAL INSURANCE CO LTD & ORS
..... Respondents
Through: Mr. P.K. Seth, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The issues that arise in these two connected appeals and the
background facts were captured, in the order dated 11.09.2017 which
reads thus:-
"1.Usha Bhagchandani, appellant in MAC Appeal No.
1030/2015 and first respondent in MAC Appeal No. 23/2008,
suffered injuries in motor vehicular accident that occurred on
21.06.2006 at about 04:00 hours in the area of Haridwar in
the State of Uttarakhand while travelling in tourist taxi
bearing registration no. HR 38FT 7712, admittedly insured
against third party risk with Oriental Insurance Company Ltd.
(appellant in MAC Appeal No. 23/2008), it being the
respondent in MAC Appeal No. 1030/2015. On her claim
petition (327/2007), the tribunal held inquiry and, by
judgment dated 06.10.2007, it accepted the case for
compensation on the ground that the accident in which
injuries were sustained occurred due to negligence on the
part of the taxi driver, he being Harvinder Singh, impleaded
as respondent in both these appeals. It is noted that both the
said driver Harvinder Singh and Charanjit Kaur, registered
owner of the taxi, though served with notices had opted to
suffer the proceedings ex-parte.
2. The Tribunal awarded compensation in the total sum of Rs.
65,09,000/, this inclusive of, besides compensation under
various other heads, Rs. 50,78,592/- towards loss of future
income, Rs.8,41,492/- as actual medical expenses and Rs.
2,30,000/- towards estimated future medical expenses.
3. It is noted that on the basis of evidence led, particularly the
testimony of Dr. Vibhore Singhal (PW-1), the tribunal
accepted the claim to the effect that the claimant had been
rendered permanently disabled to the extent of 100%, making
the calculation of loss of future earnings accordingly, the
assumption being that she had lost her job due to paraplegic
stage to which she had been reduced and that she would not
be gainfully employed for the remainder of her life.
4. The insurance company on which the liability to pay the
compensation was fastened, preferred appeal (MAC Appeal
No. 23/2008) raising the contentions that the negligence on
the part of the taxi driver had not been properly proved since
the claimant in the course of her deposition (as PW-3) had
conceded at one stage that she was sleeping during the travel
which, in the submission of the insurance company, would
show that she was not in a position to narrate the sequence of
events leading to the occurrence so as to pin down the
responsibility on the taxi driver for the collision which
involved a stationary truck. The insurance company by its
appeal has also questioned the computation of compensation.
5. During the course of consideration of the appeal of the
insurer, the claimant filed cross-objections (CM No.
4993/2013) after a delay of 1864 days, the delay having been
condoned and the cross-objections having been treated as
independent appeal (MAC Appeal No. 1030/2015) pursuant to
directions in the order dated 16.12.2015 passed by another
single judge then in sesin of the matter. By her cross appeal
the claimant has claimed that her treatment has continued
and she has been constrained to incur further medical
expenditure which is much beyond what was taken care of
under the head of estimated future medical expenditure in the
impugned award. On her application she was granted
opportunity, which she has availed, to bring on record the
additional evidence.
6. What is, however, pointed out by the insurer at the hearing
is the submissions in the cross-appeal, particularly, in para
2(j) to the effect that the claimant has been working for gain
though as a temporary employee, in the capacity of
Programme Support Officer with M/s M.S. Enterprises office
since 01.10.2009 at a gross salary of Rs. 29,353/-, her said
then current employment likely to terminate on 31.03.2013.
This averment of the claimant itself puts a question mark on
the conclusion reached by the tribunal holding that she had
been rendered disabled to the extent of 100% affecting her
functional ability to be gainfully employed.
7. It is noted that though claiming that the claimant had been
rendered paraplegic, she has been appearing in person not
only during the inquiry before the tribunal but even during the
proceedings in these appeals. It is directed that she shall
remain present in person on the next date.
8. The matter being old, no adjournment shall be granted.
9. Be listed on 18th September, 2017".
2. On 18.09.2017, the date appointed by the afore-quoted order
dated 11.09.2017, the claimant had appeared in person and during the
course of hearing, it was fairly conceded by her that she has continued
to be gainfully employed, now as an appointee of the Federation of
Indian Chambers of Commerce and Industry (FICCI), in the capacity
of Assistant Director to which post she was recently promoted, her
employment being regular, the gross emoluments being Rs. 41,000/-
approximately. She confirmed that she has been working since
01.10.2009 without let. Against the backdrop of these submissions,
she was directed, by order dated 18.09.2017, to discover on oath, the
detailed facts about her employment and the terms on which she has
been engaged supported by all the requisite documents also stating her
claim about functional disability.
3. In compliance with the afore-mentioned directions in the order
dated 18.09.2017, the claimant submitted affidavit sworn on
26.09.2017, with copies of all relevant documents. A copy of the
affidavit along with supported documents has been served on the
counsel for insurance company who does not wish to cross-examine
her in such context.
4. The submissions on both sides have been heard in the presence
of the claimant who has appeared in person at the final hearing. The
record has been perused.
5. The tribunal had calculated the compensation by the impugned
judgment as under:-
S.No. Heads Compensation
(i) Loss of future income (23512 x Rs. 50,78,592/-
12 x 18)
(ii) Actual medical expenses Rs. 8,41,492/-
(625000 + 69430 + 147062)
(iii) Estimated future medical Rs. 2,30,000/-
expenses
(iv) Special diet & conveyance Rs. 15,000/-
(v) Attendant charges Rs. 1,44,000/-
(vi) Pain & sufferings Rs. 1,00,000/-
(vii) Loss of amenities of life Rs. 1,00,000/-
Total Rs. 65,09,084/-
6. The contention of the insurance company about there being no
proper proof of negligence on the part of taxi driver only because the
claimant had conceded at one stage during her deposition (as PW-3)
that she was sleeping during the travel cannot be accepted, the
sequence of events leading to the occurrence having been brought out
vividly by the evidence. The very fact that the taxi had collided
against the stationary truck speaks volumes about negligence on the
part of taxi driver. Going by the preponderance of probabilities the
finding returned by the tribunal on this score does not call for any
interference.
7. Though going by the nature of injuries suffered by the claimant,
in which regard evidence had been led during the inquiry before the
tribunal, it appears that her condition at initial stages was one of no
hope for return to normal life, this justifying the assumptions made by
the tribunal in treating her case as that of permanent functional
disability to the extent of 100%, given the efforts made by the
claimant, with the support of her parental family, for which they need
to be commended, it is clear that she has been able to show greater
will and with sheer perseverance has returned to lead, to the extent
possible, a normal working life where she can be financially
independent, this inspite of she having been abandoned by her spouse.
In her affidavit dated 26.09.2017, she has explained her functional
disability as under:-
(i) "It is difficult task to get ready in the morning for work,
as I always need the help of an assistant and my parents to get
ready. The process involves shifting me from the bed to the
wheelchair, to the washroom, again to get dressed and back into
the wheelchair, and from there to the vehicle. Needless to say I
cannot do this alone and need help of a hired assistant or my
aged parents. I state that once my parents are no longer there, it
would not be possible for me to do these tasks without keeping a
permanent full time hired assistant, who would have to stay with
me round the clock.
(ii) Since December 2015 I am using a modified Maruti
Celerio car which has hand controls, and I am able to drive
myself to work. However I need assistance to get into the vehicle
and keep the wheelchair and walker (used to enter/exit) the
vehicle from the wheelchair) in the vehicle. Prior to this I had to
engage a car and driver for the purpose.
(iii) Upon reaching the office premises, I have to again
depend on help from the office staff/guard to get out of the
vehicle and into the wheelchair, and be taken inside the office.
Once inside the office, I cannot even perform simple tasks like
taking out a file myself or to pick up a pen without seeking help
etc.
(iv) At the office my job is entirely a desk based job, confined
to the same floor and complete 8 hours of job. At this stage I
may say that the FICCI Aditya Birla CSR Centre for Excellence
is focused on Corporate Social Responsibility, and the focus of
the centre are organizing conferences, programmes, brain
storming sessions, trainings, award ceremonies etc. with different
companies and organizations, most of which are done in
different locations around the country and some in Delhi itself.
However, due to my condition, I cannot participate in, help to
organize, attend, or in any other way assist with such
programmes. I cannot even attend any meetings in Delhi which
are outside my office, which are an everyday affair for my other
colleagues. As such I am entirely doing my job and whatever is
assigned to me, at my own desk.
(v) This lack of mobility essentially means I cannot function
like a normal employee, and this in turn limits my usefulness and
role within the organization. As such my promotion and career
prospects are severely limited, compared to other employees.
This also means my income will be limited and shall remain
limited, except small increments as outlined above, since I cannot
take on any real position of responsibility.
(vi) I say that I leave home at 8 am and reach the office by 9
a.m. I leave by 5 p.m. and return home by 6 p.m. These long
hours of sitting are aggravating my spinal injury, and causing
further deformity in my spine and legs. This is also painful for
me in the upper region of my body where I have sensation. I
have been advised by my doctors & physiotherapist that
continued long sitting, will impact my body even further.
Therefore, it is evident that my working life cannot continue for
more than a few years. After that I will be entirely dependent of
whatever I get from the compensation amount and whatever I
have saved from my present earnings.
(vii) I say that I am further impacted in my work due to my
lack of bowel/bladder control, as a result of the accident. I have
to wear a urine bag/leg bag, which frequenstly overflows and I
am unable to know when it would happen due to lack of sensation
and control over my bladder. This means I often have to return
home earlier than usual to change the urine bag or clean myself,
as it is not possible to do in the office as I need support. This
again limits my productivity as an employee."
8. Against the above backdrop, while a case for compensation for
loss of income for the period 21.06.2006 to 01.10.2009 has been made
out, which period of about 39 months represents the duration when she
was under medical treatment and totally immobile, given the fact that
she had started working w.e.f. 01.10.2009 and going by the present
terms of engagement with FICCI would continue to be gainfully
employed till the age of 60 and further bearing in mind the
emoluments that she is presently earning from such employment
(gross Rs. 44,382/- per month), the loss of future income due to
functional disability will have to be assessed with reference to the date
when she would turn 60 and retire from her service and consequently
on the multiplier of 9.
9. In the given facts and circumstances of the case, and the
medical condition of the claimant, besides the educational
qualifications she possesses, as indeed the job profile in which she has
been engaged, the learned counsel on both sides fairly agree that the
functional disability for calculating the future income be pegged at
50%.
10. For calculating the loss of actual income for the period of 39
months (21.06.2006 to 01.10.2009), the calculation will have to be
made on the basis of income then earned (i.e. Rs. 20,900/- per month)
but given the progressive rise in income that she would earn in normal
course as indeed the effect of inflation on the real value of the money,
such calculation will have to factor in the element of future prospects
which should be to the extent of 30%. On the other hand, the loss of
future income due to functional disability to the extent of 50% with
reference to the date on which she would retire, the calculations would
require the present emoluments (Rs. 44,382/-) to be taken into
consideration with the element of future prospects of increase to the
extent of 50%.
11. Thus calculated, the loss of actual income for the period of 39
months comes to (20,900 x 130÷100 x 39) Rs. 10,59,630/-. The loss
of future income due to functional disability as assessed above is
computed as (44,382 ÷2 x 150 ÷100 x 12 x 9) Rs. 35,94,942/-.
12. The tribunal had granted Rs. 8,41,942/- towards actual medical
expenditure incurred till the date of impugned judgment and Rs.
2,30,000/- towards estimated future medical expenditure. By
additional evidence adduced during the pendency of these appeals, the
claimant has proved through her affidavit (Ex.AW1/A) that she has
incurred future medical expenditure in the sum of Rs. 17,07,710.13.
The said amount includes Rs. 2,44,000/- towards attendant charges
and Rs. 3,97,150/- towards salary to driver. Since the emoluments of
attendant charges and engagement of driver is being taken care of
under different heads, the same may be deducted for purposes of
calculating the actual medical expenditure. The additional expenditure
post-decision by the tribunal thus comes to (17,07,710 - 2,44,000 -
3,97,150) Rs. 10,66,560/-. This amount will have to be added to the
compensation towards additional medical expenditure. It may be
clarified here that given the medical condition as explained by the
claimant through her declaration on oath, taken note of above, the
award of additional medical expenditure will not result in the amount
of Rs. 2,30,000/- estimated by the tribunal towards future medical
expenditure to be displaced or affected.
13. The amount of Rs. 1,44,000/- towards attendant charges granted
by the tribunal by the impugned judgment is towards the engagement
of two nurses during the period of treatment. This, however, does not
mean that the claimant is now in a position to be on her own. As
noted above, her medical condition would require constant services of
an attendant, though part time, as also of a driver, again part time. In
this view, the services of an attendant full time should take care of
both the needs. Having regard to the fact that she started moving out
w.e.f. 01.10.2009 when she was gainfully employed again, such
calculation would deserve to be made with reference to the said date,
on the basis of minimum wages of semi-skilled person it being Rs.
4,119/-. Since the claimant was about 31 years old at that time, the
multiplier of 16 would apply for such purposes. Thus, the attendant
charges for the future, post recovery, is calculated as (4119 x 12 x 16)
Rs. 7,90,848/-
14. The compensation in the present case thus is recomputed as
(35,94,942 + 10,59,630 + 8,41,492 + 10,66,560 + 2,30,000 + 15,000 +
1,44,000 + 7,90,848 + 1,00,000 + 1,00,000 ) Rs. 79,42,472/-, rounded
off to Rs. 79,43,000/-. The award is modified accordingly.
15. It is noted that the tribunal has awarded interest @ 7.5% per
annum only which is on the lower side. Having regard to the
consistent view taken by this Court, the rate of interest is increased to
9% (see judgment dated 22.02.2016 in MAC.APP. 165/2011 Oriental
Insurance Co Ltd v. Sangeeta Devi & Ors.].
16. It is, however, clarified that the interest on the additional
medical expenditure (Rs.10,66,560/-, rounded off to Rs. 10,67,000/-)
would be calculated only w.e.f. 01.03.2013 till the date of payment, in
view of the declaration made in the affidavit (Ex.AW-1/A of the
claimant) submitted during the pendency of these appeals. The
objection of the insurance company to the levy of interest over and
above the attendant charges cannot be accepted since the entitlement
of the claimant is with reference to the date of the filing of the original
petition and the intent is to create a corpus the real value of which
cannot be allowed to be eroded.
17. By order dated 15.01.2008 on MAC Appeal no. 23/2008, the
insurance company had been directed to deposit 75% of the awarded
amount within the period specified and out of such deposit 50% was
allowed to be released to the claimant. By order dated 21.04.2015
release of quarterly interest against the balance kept in fixed deposit
was also granted on the application of the claimant. Since the amount
of compensation has been increased, the entire balance lying in fixed
deposit with accrued interest shall be released to the claimant by the
registry. The insurance company will be obliged to deposit the
balance of its liability under the modified award with accrued interest
till date within thirty days with the tribunal which shall release it to the
claimant. The release of the balance by the registry and the tribunal,
however, shall be in the form of fixed deposit receipts split into as
many fixed deposit receipts as desired by the claimant, each taken out
from a nationalized bank for a period of ten years with right to draw
periodic interest.
18. The statutory deposit shall be refunded to the insurance
company after proof is furnished of the modified award having been
satisfied.
19. Both appeals are disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 09, 2017
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