Delhi High Court
United India Ins Co Ltd vs Ankit Kumar & Ors. on 4 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 04, 2018
+ MAC. APP. 683/2015 & C.M.17382/2015
UNITED INDIA INS CO LTD .....Appellant
Through: Mr. Vijay Singh, Advocate for
Mr. Abhishek Kumar, Advocate
versus
ANKIT KUMAR & ORS. .....Respondents
Through: Mr. Shekhar Aggarwal and
Mr. Ishan Kumar, Advocates for respondent
+ MAC. APP. 861/2017
ANKIT KUMAR .....Appellant
Through: Mr. Shekhar Aggarwal and
Mr. Ishan Kumar, Advocates
versus
THE UNITED INDIA INSURANCE CO LTD & ORS.
.....Respondents
Through: Mr. Vijay Singh, Advocate for
Mr. Abhishek Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above-captioned two appeals are directed against impugned
Award of 6th July, 2015 vide which Motor Accident Claims Tribunal,
Karkardooma Courts, East District, Delhi (hereinafter referred to as „the
Tribunal‟) has awarded compensation of `22,98,212/- with interest @ 9%
per annum to injured-Ankit Kumar, who had sustained grievous injuries
in a vehicular accident on 12th March, 2014. The above-captioned first
appeal is by the Insurer to seek reduction of the quantum of compensation
granted whereas in the above-captioned second appeal, Injured-Ankit
Kumar seeks enhancement in the quantum of compensation granted by
the Tribunal.
2. The factual background of this case, as noticed in the impugned
Award, is as under:-
"The facts sans unnecessary details are that on
12.03.2014 at about 8.45 pm, the Petitioner was waiting for
a bus near Kondli Turn for attending his tuition. Suddenly a
DTC Bus bearing no. DL-1PB-5058 (hereinafter referred to
as the Offending Vehicle), which was driven by respondent
no.1 and coming in a high speed from Noida side knocked
him down and ran over his right leg, crushing his right leg
bones, leading to below knee amputation. He was taken to
Dr. Hedgewar Hospital. A case FIR No.290/14,
u/sec.279/338 IPC was registered at Police Station New
Ashok Nagar, against respondent No.1."
3. With the consent of learned counsel for the parties, the above-
captioned appeals have been heard together and are being disposed of by
this common judgment.
4. On the basis of evidence led, the Tribunal has granted
compensation of `22,98,212/- to Injured and its break-up is as under: -
1 Future Loss of Income Rs.11,20,392.00
2 Towards Non pecuniary Heads Rs.3,00,000.00
3 Towards servant/attendant charges Rs.30,000.00
4 Towards conveyance & special diet Rs.40,000.00
5 Towards medical bills Rs.1,57,820.00
6 Towards loss of Studies Rs.50,000.00
7 Towards Loss of Marriage Rs.1,00,000.00
Prospects
8 Towards Future medical Expenses Rs.5,00,000.00
Total = Rs.22,98,212.00
5. The Tribunal has adopted minimum wages of a matriculate to
assess the monthly income of Injured by observing as under: -
As per Adhar Card of the Petitioner Ex.PW1/A, his age is
taken as 18 years. The petitioner was a student. He possessed
good health prior to the accident and has suffered loss of
studies for a considerable period. For him, the best part of his
life was yet to come. The main elements of the compensation in
a case like petitioner‟s are the pain, shock, frustration,
deprivation of ordinary pleasure and enjoyment associated with
healthy and mobile limbs. Therefore, considering the aforesaid
judgments, in my opinion, minimum wages for matriculate
workman can be taken into consideration. His monthly income
thus, is taken as Rs.10,374/-.
6. As per the Disability Certificate (Ex.PW2/A), Injured had suffered
82% permanent disability in relation to his right lower limb due to
accident in question. The Tribunal has assessed the functional disability
to be 50%.
7. Learned counsel for Insurer assails impugned Award while relying
upon Supreme Court's decision in Master Mallikarjun v. Divisional
Manager, The National Insurance Company Limited and Anr., AIR 2014
SC 736 to submit that in a case of student, compensation under non-
pecuniary heads only is to be awarded as a student does not have any
income. He further submits that compensation of `5 lacs under the head
of „future medical expenses‟ is on the higher side as functional prosthesis
restoration option is available in market at a relatively lower price than `5
lacs. It is next submitted by learned counsel for Insurer that lump sum
compensation of `3 lacs under the non-pecuniary heads has been granted
by the Tribunal, but still further compensation under sub-heads of this
very head i.e. Non-Pecuniary, also stands granted and so, quantum of
compensation granted deserves to be suitably reduced.
8. Learned counsel for Injured submits that the compensation
awarded by the Tribunal is inadequate and relies upon decisions of this
Court in IFFCO Tokio General Insurance Co. Ltd., v. Tenzin Peldon &
Ors., 2017 SCC OnLine Del 10828 and National Insurance Company
Ltd. v. Shweta Sharma & Ors., 2017 SCC OnLine Del 12587 and
Supreme Court's decision in V. Mekala v. M. Malathi & Anr., (2014) 11
SCC 178 to submit that in a case of student of 17 years, notional income
of deceased has been taken to assess „future prospects‟ also. Learned
counsel for Injured submits that the prosthetic leg was obtained by
Injured at `1,87,055/- and it is so evident from the bill (Ex.PW 3/3). It is
pointed out that the average lifespan of prosthetic leg is 5 to 6 years and
so, the entire cost of artificial limb package ought to be `19 lacs odd. It is
submitted by learned counsel for Injured that non-pecuniary heads
nowhere include loss of marriage prospects aspect in case of unmarried.
9. Enhancement of compensation is sought by learned counsel for
Injured by submitting that the Tribunal has erred in not granting „future
prospects‟. To claim addition towards „future prospects‟, reliance is
placed upon Supreme Court's decision in Tenzin Peldon (supra). So, it is
submitted that the compensation granted by the Tribunal needs to be
suitably enhanced.
10. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that in none of the decisions relied upon by learned
counsel for Injured, Supreme Court's decision in Master Mallikarjun
(supra) has been considered. In a case of student, a Co-Ordinate Bench of
this Court in Oriental Insurance Company Ltd. v. Master Arun & Ors.,
2016 SCC OnLine Del 2422, while relying upon Supreme Court's
decision in Master Mallikarjun (supra), has awarded lump sum
compensation of `4 lacs on account of 56% permanent disability and has
also granted compensation of `1 lac towards „pain and suffering‟ and
compensation of `50,000/- under the head of „loss of marriage
prospects‟.
11. In the instant case, Injured was aged 17 years on the day of the
accident and his functional disability has been rightly assessed to be 50%.
In view of Supreme Court's decision in Master Mallikarjun (supra),
compensation under the head of „future loss of income‟ is disallowed and
lump sum compensation of `4 lacs is granted to Injured on account of
permanent disability suffered by him. Since the Tribunal has already
awarded lump sum compensation of `3 lacs under the Non-Pecuniary
Heads, while relying upon the decision in Oriental Insurance Co. Ltd. v.
V.S. Vijay Mittal, (2008) ACJ 1300, therefore, separate compensation
under the head of „loss of marriage prospects‟ is disallowed. In view of
Supreme Court's decision in Master Mallikarjun (supra), no addition
towards „future prospects‟ can be made as a student does not have any
income. No separate compensation under the head of „loss of studies‟ is
justified and hence, it is disallowed. However, amount of „medical bills‟
and „attendant charges‟ granted by the Tribunal is maintained.
12. Towards „future medical expenses‟, the Tribunal has granted lump
sum compensation of `5 lacs while ignoring the evidence of injured
regarding obtaining of prosthetic limb at the cost of `1,87,055/- against
the bills (Ex.PW 3/3). Authorized Representative of M/s.Otto Bock
HealthCare India Pvt. Ltd. has deposed that the total estimated cost of
entire prosthesis package would be `19,15,200/- and this estimate has
been arrived at after examining the Injured. It has come in the evidence of
this witness (PW-3) that the average life of prosthetic leg is 5 to 6 years.
Upon scrutiny of the evidence of this witness (PW-3), I find that there is
no worthwhile cross-examination of this witness regarding prosthetic
limb being available in market at an amount lesser than `19 lacs. In the
face of evidence of PW-3, it becomes evident that the fitment of artificial
leg obtained by Injured at the cost of `1,87,055/- would have the life of 5
to 6 years.
13. While taking the life expectancy at 66 years, the requirement of
Prosthetic Cost Assessment for Transtibial Amputee till life expectancy
of 66 years has been proved on record as Ex.PW3/A by Sh. Anshul
Sengar, Prosthetist and Orthotist (PW-3). There is no challenge to this
exhibit which reveals that the periodical replacement of the prosthetic
limb would cost `19,15,200/-. In the face of afore-referred positive
evidence, the Tribunal was not justified in awarding lump sum
compensation of `5 lacs only towards „future medical expenses‟. While
relying upon the cost assessment (Ex.PW3/A), future medical expenses of
`19,15,200/- is granted. Consequentially, the compensation payable to
Injured as reassessed as under: -
1 Loss due to permanent disability `4,00,000/-
2 Towards Non pecuniary Heads `3,00,000/-
3 Towards servant/attendant charges `30,000/-
4 Towards conveyance & special diet `40,000/-
5 Towards medical bills `1,57,820/-
6 Towards Future medical Expenses `19,15,200/-
Total `28,43,020/-
14. Consequentially, the compensation amount payable stands
enhanced from `22,98,212/- to `28,43,020/-. The enhanced compensation
be deposited by Insurer with the Tribunal within four weeks from today.
The re-assessed compensation shall carry interest @ 9% per annum and it
be disbursed in the ratio and manner as indicated in the impugned Award
with the rider that the „future medical expenses‟ granted by this Court
shall be retained in Fixed Deposit, except for the bill amount (Ex.PW3/3),
and disbursed directly to the hospital/agency from where artificial limb is
sought to be replaced. Statutory deposit, if any, be refunded to Insurer.
15. In aforesaid terms, these appeals and the application are disposed
of.
(SUNIL GAUR)
JUDGE
JULY 04, 2018
s
