Delhi High Court
Oriental Insurance Co. Ltd. vs Dinesh Sharma & Ors. on 11 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 11, 2018
+ MAC.APP.95/2013
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. A.K. Soni, Advocate
Versus
DINESH SHARMA & ORS. ..... Respondents
Through: Mr. Ankit Jain, Advocate
+ MAC.APP. 351/2013
DINESH SHARMA ..... Appellant
Through: Mr. Ankit Jain, Advocate
Versus
THE ORIENTAL INSURANCE CO. LTD. & ORS. .. Respondents
Through: Mr. A.K. Soni, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
1. Impugned Award of 19th September, 2012 grants compensation of
`18,73,100/- with interest @9% per annum to injured- Dinesh Sharma,
aged 19 years, on account of grievous injury suffered by him in a
vehicular accident, which took place on 14th January, 2009. Vide order of
11th December, 2012, an arithmetic error in the impugned Award was
MAC.APP. 351/2013
corrected by the Motor Accident Claims Tribunal (henceforth referred to
as the "Tribunal") and as a result thereof, instead of `11,39,100/-,sum of
`20,39,100/- was granted towards the expenses occurred for becoming a
Commercial Pilot. Thus, the total compensation payable to injured also
stands corrected from `18,73,100/- to `27,73,100/-.
2. In the above captioned first appeal, reduction of quantum of
compensation granted to injured is sought, whereas in the above
captioned second appeal, enhancement of compensation is sought by the
injured. Since both the appeals arise out of common impugned judgment,
therefore, with the consent of learned counsel for the parties, both the
appeals have been heard together and are being decided by this common
judgment.
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"2). Briefly the facts are that on 14.01.09 the
petitioner was going to take his special class for
Technical (General) examination to be held on
20.01.09 at Saket on his motorcycle. When he reached
near Moti Bagh flyover, a truck came at a very high
speed and hit his motorcycle from behind. Due to
sudden impact, he fell down and sustained injuries on
his head and chest. He was taken to AIIMS Trauma
Centre where he remained for four days. He was
operated on his head. Due to the injuries, he could not
appear in the examination held on 20.01.09.
3.) He was a brilliant student. He had joined EBS
Aviation Training Centre for CPS ground subjects and
deposited a fee of Rs.49000/-. After three months
classes, he registered himself with Yash Air Limited,
Ujjain, MP for flying costing a package of
MAC.APP. 351/2013
Rs.19,75,000/-. He did his first Air Flying experience
on 13.10.07 and on 15.10.07 he got student pilot
license (SPL) and deposited Rs.8500/-. By 12.01.08, he
had completed 50 hours of flying. He started
preparation for the ground subject examination to be
conducted by DGCA for which he took special classes
and paid Rs.10,000/-. He also cleared class II Medical
Test on 20.08.08. He appeared in four ground subject
examination and cleared one examination. He did 38
hours of flying in Ujjain and thus had a flying
experience of 88 hours. In July, 2008, he passed
another subject and in October, 2008 he passed the
remaining subjects. He also cleared Radio Telephony
examination and was issued RTR license on 25.11.08
for which he deposited Rs.15,000/- as fee. It was stated
that to become a commercial pilot, flying experience of
200 hours is required. He had already completed 88
hours. Had he been completed flying experience of 200
hours, he would have been paid Rs.2.0 lacs per month.
It was stated that due to the accident, he was declared
temporarily unfit by DGCA."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as the "Tribunal") has relied upon evidence of
injured and Medical Assessment Record (Ex.PW1/7), vide which injured,
who was a Trainee Pilot, has been certified to be permanently unfit for
flying. The breakup of compensation awarded by Tribunal is as under:-
Medical expenses `7,000/-
Pain & Sufferings and Enjoyment ` 2,00,000/-
of life
Special diet, conveyance & ` 27,000/-
attendant
MAC.APP. 351/2013
Loss of expenditure and career ` 25,39,100/-
prospects (`20,39,100+`5,00,000)
Total ` 27,73,100/-
5. Learned counsel for Insurer assails impugned Award on the ground
that injured had failed to get any doctor examined to establish his
inability to pursue Pilot Training Course after the accident and there is no
„Disability Certificate‟ indicating any deformity. Counsel for Insurer
submits that the injured has passed B.Tech (Civil) engineering course and
so, compensation granted under the head of "loss of expenditure and
career prospects" is unjustified. It is submitted by counsel for Insurer
that career of B.Tech (Civil) is no less than career of a Pilot and as Civil
Engineer, injured would be able to get a package of around `50,000/- per
month and there is no guarantee of getting a job after having completed
training of commercial pilot, and so, as a Civil Engineer, injured would
have better future prospects even after superannuation. Lastly, counsel for
Insurer submits that compensation of `5,00,000/- granted towards "loss
of career prospects" is wholly unjustified and no case for grant of
expenses incurred to become a commercial pilot is made out.
6. On the contrary, learned counsel for injured submits that as per
Medical Assessment Record (Ex. PW1/7), injured has been certified to be
permanently unfit for flying. On the aspect of functional disability,
learned counsel for injured relies upon decision in Rekha Jain Vs.
National Insurance Company Limited & ors. (2013) 8 SCC 389. He also
relies upon Supreme Court's decision in Arvind Kumar Mishra Vs. New
India Assurance Company Limited & Anr. (2010) 10 SCC 254 to seek
MAC.APP. 351/2013
addition towards future prospects. Learned counsel for injured submits
that the compensation of `5,00,000/- granted towards "loss of career
prospects" is inadequate and the Tribunal has erred in not granting
compensation towards "future prospects". It is submitted by counsel for
injured that as a Commercial Pilot, injured would have earned
`2,00,000/- per month, whereas as a Civil Engineer, he is earning
`35,000/- to `40,000/- per month only. So, it is submitted that the
quantum of compensation granted deserves to be suitably enhanced.
7. Upon hearing and on perusal of impugned Award, evidence on
record and decisions cited, I find that injured was 19 years of age on the
date of accident and was holding Student Pilot License and was
undergoing an aviation training and had incurred heavy expenses to
become a Commercial pilot. Neither there is evidence of any doctor nor
there is any Disability Certificate regarding the head injuries suffered by
injured, but the Medical Assessment Record (Ex.PW1/7) has been issued
by a Medical Examiner, which has declared injured permanently unfit for
flying on account of head injuries sustained by the injured in this
accident. Even if there is no evidence on record regarding salary of a
Pilot and a Civil Engineer, but judicial notice can be taken note of the fact
that Commercial Pilots do earn around `1,00,000/- per month and Civil
Engineers would not earn even half of it.
8. In view of drastic career alteration, the compensation of
`5,00,000/- awarded by the Tribunal under the head of "loss of career
prospects" appears to inadequate. It is true that the expenses incurred for
undergoing a training cannot be reimbursed in such like cases but I find
MAC.APP. 351/2013
that the "loss of career prospects" in the case of injured, justifies
enhancement of compensation. The disparity in the earning capacity of a
Commercial Pilot and a Civil Engineer justifies quantification of "loss of
career prospects" at `25,00,000/- on conservative basis.
9. Since the injured was still a student, therefore, he is taken to be as a
non-earning person and thus, no addition towards "future prospects" can
be made. Supreme Court's decision in Rekha Jain (Supra), related to a
film actress, whose permanent disability was taken to be 100%, whereas
in the instant case, there is no formal declaration of any disability
suffered by the injured. So, reliance placed by counsel for Injured upon
Supreme Court's decision in Rekha Jain (Supra) is of no assistance to the
case of Injured. However, due to injuries sustained in this accident, there
has been a forceful alteration of career option of Injured, for which
compensation under the head of "loss of career prospects" has been
already granted.
10. In view of Supreme Court's decision in Master Malikarjun Vs.
Divisional Manager, The National Insurance Company Ltd & Anr. AIR
2014 SC 736, compensation granted under the head of "pain & sufferings
and enjoyment of life" is enhanced from `2,00,000/- to `3,00,000/- but
compensation granted under the other heads, do not call for any
alteration.
11. In view of aforesaid, the compensation payable to Injured is
reassessed as under: -
Medical expenses `7,000/-
Pain & Sufferings and Enjoyment `3,00,000/-
MAC.APP. 351/2013
of life
Special diet, conveyance & `27,000/-
attendant charges
Loss of expenditure and career ` 25,00,000/-
prospects
Total ` 28,34,000/-
12. Consequentially, the compensation amount payable stands
enhanced from `27,73,100/- to `28,34,000/-. The enhanced
compensation be deposited by the Insurer with the Tribunal within four
weeks from today. The awarded compensation with interest be disbursed
to injured in the ratio and manner as indicated in the impugned Award.
Statutory deposit, if any, be refunded to Insurer.
13. With aforesaid directions, the above captioned first appeal i.e.
MAC.APP 95/2013 is dismissed, whereas the above captioned second
appeal MAC.APP. 351/2013 is allowed in abovesaid terms.
14. The above captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
JULY 11, 2018
r
MAC.APP. 351/2013
