Delhi High Court
Ajay Pal Khari vs Vijay Kumar & Anr (Icici Lombard ... on 17 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 17, 2018
+ MAC.APP.120/2018
AJAY PAL KHARI ..... Appellant
Through: Mr. A. K. Mishra, Advocate
Versus
VIJAY KUMAR & ANR (ICICI LOMBARD GENERAL
INSURANCE) ..... Respondents
Through: Ms. Manu Kushwaha, Advocate
for R-1.
+ MAC.APP.164/2018 & CM Nos. 5388/2018 & 26302/2018
ICICI LOMBARD GENERAL INS CO LTD ..... Appellant
Through: Ms. Manu Kushwaha, Advocate
Versus
AJAY PAL KHARI AND ANR ..... Respondents
Through: Mr. A. K. Mishra, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. In the above captioned first appeal, enhancement of compensation
is sought, whereas in the above captioned second appeal, negligence of
driver of the insured vehicle is disputed and in the alternative, reduction
in the quantum of compensation is sought. 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.
2. Impugned Award of 11th October, 2017 grants compensation of
`7,15,000/- with interest @ 9% per annum to Injured-Ajay Pal, aged 44
years, on account of grievous injury suffered by him in a vehicular
accident, which took place on 27th May, 2014. The facts as noticed in the
impugned Award are as under:-
"It is stated in the claim petition filed by the claimant
that on 27.05.2014, at about 02:00 pm, he was coming from
Kalandi Kunj to Tehkhand Village on motorcycle bearing no.
DL-3SAL-9059 as pillion rider. He further stated that the
said motorcycle was being driven by respondent no.1 in a
very rash and negligent manner, as a result of which the
motorcycle slipped on the road, due to which, the claimant
fell down on the road and sustained injuries."
3. To render the impugned Award, learned Motor Accident Claims
Tribunal (hereinafter referred to as the "Tribunal") has relied upon
evidence of Injured and as per disability certificate, Injured had suffered
51% permanent disability in the left leg. On the strength of evidence
recorded, impugned Award has been rendered. The breakup of
compensation awarded by Tribunal is as under:-
Head of Compensation Amount(in Rs.)
Loss of Income during treatment `51,870/-
Loss of Amenities of life ` 10,000/-
Future Income ` 4,35,708/-
Pain & Suffering ` 10,000/-
Special Diet ` 10,000/-
Conveyance ` 10,000/-
Attendant Charges ` 10,000/-
Loss of enjoyment and life ` 10,000/-
Medical Expenses ` 1,47,406
Mental and physical Shock ` 10,000/-
Disfiguration ` 10,000/-
Total ` 7,14,984/-
(rounded off)
` 7,15,000/-
4. Learned counsel for Injured submits that quantum of compensation
granted by the Tribunal is inadequate. To seek enhancement of
compensation, it is submitted that the Tribunal has erred in not making
addition towards future prospects as the Injured was working as a
transporter, that is to say that Injured was managing a transport company.
It is pointed out by learned counsel for Injured that Injured was
hospitalized for a period of three months but his treatment continued for a
period of two years and that compensation granted by the Tribunal under
different heads is meager and needs to be suitably enhanced.
5. On the contrary, learned counsel for Insurer submits that accident
in question took place due to negligence of the Injured and there was no
fault of driver of the insured vehicle. It is pointed out that there is neither
any documentary proof regarding the nature of job of Injured nor about
his income. It is submitted that there is no documentary evidence to show
that Injured was hospitalized for a period of three months. It is pointed
out that the period of hospitalization of Injured was of one week only. It
is pointed out by learned counsel for the Insurer that compensation
granted by the Tribunal is adequate and no case for its enhancement is
made out.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that insured motorcycle was being driven by Vijay
Kumar who has not come forward to depose against Injured who was a
pillion rider. There is positive evidence of Injured to the effect that
accident had taken place due to rash and negligent driving of abovesaid
Vijay Kumar. Regarding this accident, Injured had made a complaint
(Exhibit PW1/C) to the local police but no FIR was registered. The delay
in making complaint is explained by Injured who has deposed that on the
request of Vijay Kumar-driver of insured motorcycle, he had not made
complaint to the police on the assurance that said Vijay Kumar would
extend all financial help towards the treatment of Injured and when it was
not done, then only complaint to the police was made and thereafter, a
claim petition was filed. In the face of evidence on record, it cannot be
said that there is no negligence of driver of the insured vehicle. The
Tribunal has rightly relied upon the evidence of Injured to hold that the
accident in question had taken place due to rash and negligent driving of
driver of the insured vehicle.
7. As per the disability certificate of Injured on record, he had
sustained 51% permanent disability in the left lower limb. In the light of
evidence on record, it can be safely said that the Tribunal has rightly
assessed the functional disability of the Injured to be 25%.
8. So far as compensation granted on account of 'loss of income due
to accident' is concerned, I find it to be adequate. Since there was no
proof of income of the Injured, therefore, the Tribunal has rightly
assessed the income of the Injured on minimum wages payable to a
matriculate and has applied a multiplier of 14 to assess 'loss of earning
capacity due to disability suffered' in this accident. However, no addition
towards future prospects has been made. In view of Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & Ors. (2017) 16 SCC 680, addition of 25% towards future
prospects is granted as the injured was 44 years of age on the date of
incident. Accordingly, loss of earning capacity due to disability suffered
in this accident, is re-assessed as under:-
₹ 2,593.50/- X 12 X 14 X 125/100 = ₹ 5,44,635/-
9. Considering that Injured had remained under treatment for more
than one year, the compensation granted under the 'non pecuniary heads'
is certainly on the lower side. Compensation of ₹10,000/- only granted
under the head of 'pain and suffering' and ₹ 10,000/- under the head of
'mental and physical shock' is clubbed together under the head of 'pain
and suffering' and the compensation granted under this head is enhanced
to ₹ 75,000/-. Compensation granted under the head of 'loss of amenities
of life' is also enhanced to ₹ 50,000/-.
10. In the face of the evidence on record, I find that compensation
granted by the Tribunal under the remaining heads is justified and no case
for reduction or enhancement thereof is made out.
11. Consequentially, compensation payable to the Injured is reassessed
as under: -
Head of Compensation Amount (in Rs.)
Loss of Income during treatment `51,870/-
Loss of Amenities & enjoyment ` 60,000/-
of life
Loss of earning capacity due to ` 5,44,635/-
disability suffered
Pain and suffering ` 75,000/-
Special Diet ` 10,000/-
Conveyance ` 10,000/-
Attendant Charges ` 10,000/-
Medical Expenses ` 1,47,406
Disfiguration ` 10,000/-
` 9,18,911/-
12. In view of aforesaid, the quantum of compensation is enhanced
from ₹7,15,000/- to ₹9,18,911/-. The enhanced compensation be
deposited by Insurer with the Tribunal within six 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.
Statutory deposit, if any, be refunded to Insurer.
13. Both these appeals are accordingly disposed of while modifying
the impugned Award in the aforesaid terms.
(SUNIL GAUR)
JUDGE
JULY 17, 2018
SRwt
