Delhi High Court
Cholamandalam Ms General Ins. Co. ... vs Ram Kishan & Ors. on 12 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 12, 2018
+ MAC.APP. 260/2012 & CM 12341/2017
CHOLAMANDALAM MS GENERAL INS. CO. LTD.
.....Appellant
Through: Mr. Pankaj Gupta for Ms. Suman
Bagga, Advocate
Versus
RAM KISHAN & ORS. .....Respondents
Through: Mr. Saurabh Bhargavan, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 22nd November, 2011 grants compensation of
`26,32,408 /- with interest @ 9% per annum to respondent/Injured-Ram
Kishan, aged 25 years, on account of grievous injury suffered by him in a
vehicular accident, which took place on 4th September, 2010. The facts,
as noticed in the impugned Award, are as under:-
"The brief facts necessary for decision have been
detailed by the complainant, HC Dharambir Singh on
4.9.2010 at about 11.15 PM while he was present at Sethi
Restaurant, Mathura Road, he saw one scooter make Vespa
being hit from the back side by a blue line bus, plying on
route No. 479, bearing registration No. DL 1P A-6665. As a
result of the accident, the bus ran over the scooter and
stopped. It is stated by the complainant that that though the
driver of the scooter did not suffer much injuries, the pillion
rider suffered grievous injuries and was removed by the PCR
van to the hospital. However, later on, the bus driver who
caused the accident, got down from the bus and on pretext of
calling the owner, fled from the spot. Consequent to the
accident, he reported the matter to IO, ASI Satya Prakash
who reached at the spot and recorded his statement. On his
statement exhibited as Ex. PW2/A, the FIR was lodged."
2. To render the impugned Award, learned Motor Accident Claims
Tribunal (hereinafter referred to as "the Tribunal") has relied upon
evidence of Injured and the Disability Certificate, which indicates that
Injured has suffered permanent disability of 32% in relation to the whole
body. Injured had sustained grievous injuries on his left leg. The
breakup of the compensation granted by the Tribunal is as under:-
Pain & Suffering: `75,000/-
Loss of Income: `63,336/-
Attendant's Charges: `36,000/-
Loss due to Disability: `17,10,072/-
Loss of Amenities: `1,00,000/-
Future treatment expenses: `6,48,000/-
TOTAL: `26,32,408/-
3. During the pendency of this appeal, additional evidence in the
shape of deposition of Dr. Adarsh Kumar (ARW1) and Dr. Rajiv Kumar
(ARW2) has been led.
4. Learned Counsel for the appellant submits that as per the evidence
of Dr. Devi Ram, Injured can do sitting job for 8-9 hours and so, the
Tribunal has erred in taking the disability of the Injured to be 100%. It is
further submitted that at best, the functional disability of the Injured
ought to be assessed at 32%. It is next submitted that the Tribunal has
erred in granting addition of 50% towards future prospects because the
Constitution Bench of Supreme Court in National Insurance Company
Ltd. Vs. Pranay Sethi & ors. (2017) 16 SCC 680, has clarified that
addition towards future prospects in such a case ought to be 40% as the
Injured was a labourer who was aged 25 years. It is pointed out that grant
of `6,48,000/- towards "future treatment expenses" is without any
documentary proof and so, it be disallowed.
5. On the contrary,learned counsel for the respondent-Injured
supports the impugned award and submits that in light of additional
evidence led by Injured, no case for reduction of compensation granted is
made out.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that the Tribunal has erred in assessing the functional
disability of the Injured as 100%. As per the fresh medical certificate
(Ex. ARW1/A) issued by JPNA Trauma Centre, AIIMS, the permanent
disability suffered by the Injured is 27% in relation to his left upper limb.
However, the additional evidence led reveals that the Injured is suffering
from Locomotor Disability, Degloving Injury Left Forearm with Ventral
Hernia and Bladder Rupture with Right Public Rami Fracture and the
cost of the surgery for the treatment of this ailment is approximately `5
lacs as per letter of 2nd August, 2017 ( Ex. ARW1/B).
7. It has also come in the additional evidence of Dr. Adarsh Kumar
that Injured is susceptible to frequent infection and he will frequently
need medical consultation and due to the deformity appearing in the
abdomen of the Injured, he is not likely to perform normal labour work.
It is relevant to note that the Injured was a labourer and now due to this
accident, he can only do desk job for which he is not qualified. It has also
come in the additional evidence that there is a possibility of improvement
of functional disability after the proposed surgery and Injured may not
require the urine bag for his urine collection after the surgery. Although,
the permanent disability of the Injured has now been re-assessed to be
27%, but in the face of additional evidence, the functional disability
suffered by the Injured due to this accident is assessed as 70%.
8. As far as addition of 50% towards future prospects is concerned, I
find that age of the Injured was 25 years on the date of the accident and
the assessment of income of the Injured is on minimum wages of an
unskilled person and so, in view of the Supreme Court's decision in
Pranay Sethi (Supra), I find that the addition towards future prospects has
to be 40%.
9. Regarding amount of ` 6,48,000/- granted by the Tribunal towards
„future medical expenses', I find that the cost of surgery is `5 lacs, but
there are overhead expenses for medicines etc. and so, the amount
granted under this head is justified, but it has to be released directly to the
hospital concerned and not to the Injured. Upon submissions of requisite
documents, the insurer shall directly remit the „future medical expenses'
to the concerned hospital. In view thereof, no interest on the future
medical expenses is payable.
10. In the light of the aforesaid, the loss of income due to disability
suffered is re-assessed as under :-
`5278 per month X 12 X 18 X 140/100 X 70/100=` 11,17,247/-
11.So far as the compensation granted under the non pecuniary heads
is concerned, I find that it is just and proper. Consequently, the
compensation payable to the respondent-Injured is re-assessed as
under :-
Pain and suffering ` 75,000/-
Loss of income ` 63,336/-
Attendant charges `36,000/-
Loss due to disability `11,17,247/-
Loss of amenities `1,00,000/-
Future treatment expenses `6,48,000/-
Total : `20,39,583/-
12. Consequentially, the compensation of ` 26,32,408/- awarded by the
Tribunal is accordingly reduced to 20,39,583/-. The modified
compensation shall carry interest @ 9% per annum. The insurer is
directed to deposit the compensation as per this judgment with the
Tribunal within four weeks and thereafter, the compensation as awarded
herein, be released to the Injured in the manner and ratio as indicted in
the impugned Award. Statutory deposit, if any, be refunded.
13. The insurer is permitted to retain „future medical expenses‟ of
`6,48,000/- with a rider that the said amount shall be forthwith released
by the insurer to the concerned Hospital on submission of requisite
documents.
14. With the aforesaid directions, this appeal and the application are
accordingly disposed of.
(SUNIL GAUR)
JUDGE
JULY 12, 2018/p
