Delhi High Court
Shriram General Insurance Co Ltd. vs Raja & Ors. on 17 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 17, 2018
+ MAC.APP. 493/2015
SHRIRAM GENERAL INSURANCE CO LTD. ..... Appellant
Through: Mr.Sameer Nandwani, Advocate
Versus
RAJA & ORS. ..... Respondents
Through: Mr. Sanjeev Mehta, Advocate
+ MAC.APP. 395/2018
RAJA & ORS. ..... Appellants
Through: Mr.Sameer Nandwani, Advocate
versus
SHRIRAM GENERAL INSURANCE CO LTD. .... Respondents
Through: Mr. Sanjeev Mehta, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 24th April, 2015 grants compensation of
`24,91,300/- with interest @ 9% per annum to respondent/ Injured- Raja,
aged 31 years, on account of grievous injury suffered by him in a
vehicular accident, which took place on 24th October, 2011.
2. In the above captioned first appeal, Insurer seeks reduction of the
compensation awarded, whereas in the above captioned second appeal,
MAC.APP. 395/2018
enhancement of compensation is sought by claimants. 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:-
"The case of the petitioner is that on 24/10/2011 at
about 11.00 PM the petitioner was coming with his brother
in law from his house and when they reached at Sadar
Thana Road suddenly a Truck bearing No. HR-55A-6312
which was being driven by its driver/respondent No. 1
came at a very high speed in rash and negligent manner,
in violation of all traffic rules and norms and hit the
petitioner from behind with forceful impact. As a result of
aforesaid accident, the petitioner sustained straddle
fracture pelvic bone, sustained serious injury in rectal wall
and urethral injury and other grievous injuries all over his
body as per MLC and other medical record. In total, the
petitioner has claimed Rs.50,00,000/- as compensation on
account of the injuries sustained by the injured in the
accident."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as the "Tribunal") has relied upon evidence of
Injured- Raja (PW-1), eye witness (PW2), Sh. Jitin Sohar (PW-3), Dr.
Satish Kumar (PW-5) and Disability Certificate (Ex. PW5/A) and has
opined that the Injured had suffered 100% "permanent disability" and
"functional disability" is also assessed at 100%. On the strength of
evidence recorded, impugned Award has been rendered. The breakup of
compensation awarded by Tribunal is as under:-
Loss of earning capacity `19,16,928/-
MAC.APP. 395/2018
Pain and suffering `1,50,000/-
Loss of amenities `1,50,000/-
Disfigurement and loss of `1,00,000/-
enjoyment
Special diet upto the date of `50,000/-
Award `25,000/-
Conveyance upto the date of
Award
Compensation towards medical ` 24,372/-
bills
Future conveyance `50,000/-
Future special diet `50,000/-
Total `24,91,300/-
5. Learned counsel for Insurer assails impugned Award on the ground
that the Tribunal has erred in not taking the "functional disability" to be
100%, whereas in view of Disability Certificate (Ex. PW5/A), it should be
60%. It is submitted by counsel for Insurer that in view of Supreme
Court's Constitution Bench decision in National Insurance Company Ltd.
Vs. Pranay Sethi & ors. (2017) 16 SCC 680, addition towards "future
prospects" ought to be 40% and not 50% as awarded by the Tribunal.
Counsel for Insurer submits that there is no head of "future conveyance"
and "future special diet" and so, compensation granted by the Tribunal
under these two heads ought to be disallowed. Lastly, counsel for Insurer
submits that the compensation awarded deserves to be reduced.
6. On the contrary, counsel for Injured refutes the aforesaid stand
taken by Insurer's counsel and submits that compensation granted is
inadequate and seeks enhancement of compensation. Counsel for Injured
submits that in view of 100% "permanent disability" of Injured,
MAC.APP. 395/2018
"attendant charges" ought to have been granted. It is submitted by
counsel for Injured that compensation granted under the head of "pain
and suffering" is inadequate. Counsel for Injured relies upon Supreme
Court's decision in G. Ravindranath Vs. E. Srinivas and anr. 2013 ACJ
2131 to seek compensation under the head "future medical expenses" as
due to disability suffered by the Injured, recurring medical expenses have
to be incurred. It is submitted by counsel for injured that no compensation
under the head of "loss of expectation of life" has been granted. Learned
counsel for injured relies upon a decision of 29th January, 2008 of a
Coordinate Bench of this Court in FAO 388-89/2005, titled as Mr.
Maman Chand & Anr. Vs. Deputy Labour Commissioner & anr. to
submit that in petty and unorganized business, the employer neither
issues any appointment letter to its employees nor do they maintain any
record. So, evidence of Injured's employer ought to have been accepted
by the Tribunal to assess the income of Injured at `20,000/- p.m. and it
cannot be taken on minimum wages of unskilled worker.
7. Counsel for Injured submits that since no permission under Section
170 of The Motor Vehicle Act, 1988 has been taken by the Insurer, so,
challenge to the quantum of compensation granted cannot be made by the
Insurer. To submit so, reliance is placed upon Supreme Court's decisions
in National Insurance Co. Ltd. Vs. Nicolletta Rohtagi & ors. 2002 ACJ
1950 and Central Board of Dawoodi Bohra Commnity & anr. Vs. State of
Maharashtra & anr. (2005) 2 SCC 673 to submit that decisions rendered
earlier by co-equal Bench will prevail. Lastly, it is submitted by counsel
for Injured that compensation granted to Injured deserves to be enhanced.
MAC.APP. 395/2018
8. In rebuttal, reliance is placed by counsel for Insurer upon Supreme
Court's decision in United India Insurance Co. Ltd. Vs. Shila Datta &
ors. 2011 ACJ 2729 to submit that where the Insurer has been already
made a party, there is no requirement of seeking permission under
Section 170 of the Motor Vehicles Act, 1988.
9. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that decision in Nicolletta Rohtagi
(supra) has been referred to a larger Bench and in view thereof, reliance
is placed upon decision in Shila Datta (supra), wherein it is held that
once the Insurer is impleaded as a party, then it can raise all contentions
available to resist the claim. Quite evidently, in such a situation, no
permission under Section 170 of the Motor Vehicles Act,1988 is required.
It is so said because in light of decision in Shila Datta (supra), wherein
earlier decision in Nicolletta Rohtagi (supra) has been considered and the
matter has been referred to a larger Bench. Pertinently, in the instant case,
owner and driver of the offending vehicle in question have not come
forward to contest the claim before the Tribunal or in appeal. In such a
situation, Insurer is well within its right to assail the impugned Award on
quantum aspect.
10. The Disability Certificate (Ex. PW5/A) assesses the permanent
disability of Injured at 100% and the Tribunal on its basis has
mechanically assessed the "functional disability" to be 100%, which
according to this Court is not justified, as Dr. Satish Kumar (PW-5) in his
evidence has categorically deposed that upper and lower limbs of Injured
are fully working and he can do minor sitting jobs with both his hands.
According to this witness- Dr. Satish Kumar (PW-5), disability suffered
MAC.APP. 395/2018
by Injured has no effect on his mind, eyes or any other part of the body,
except for difficulty in passing urine and stool. However, this witness-
Dr. Satish Kumar (PW-5) has deposed in no uncertain terms that 100%
permanent disability is in relation to the whole body because of the
conditions mentioned in the Disability Certificate (Ex. PW5/A) and that
the injured has lost his day to day working as well as earning capacity and
is rendered impotent due to the injuries sustained in this accident. It has
also come in the evidence of Dr. Satish Kumar (PW-5) that injured needs
multiple operations in a specialized hospital. In the face of evidence of
Dr. Satish Kumar (PW-5), it is deemed appropriate to assess the
"functional disability" of Injured to be 80%.
11. As regards income of Injured is concerned, there is self serving
evidence of Injured's employer i.e. Sh. Jitin Sohar (PW-3), who has
asserted that the injured used to earn `700/- to `1,000/- per day by selling
button etc. Rajesh (PW-4), in his evidence has deposed that the Injured
was working with him on part time basis and for the job work done by
him, Injured was getting `300/- to `400/- per day. However, there is
nothing on record as to what kind of work Jitin (PW-3) & Rajesh (PW-4)
were doing. No shop registration certificate, pan card etc. has been placed
on record by Jitin (PW-3) & Rajesh (PW-4). It is not the case that Jitin
(PW-3) & Rajesh (PW-4) were in non-organized sector and so, reliance
placed upon decision in Maman Chand (supra), is of no avail.
12. In the considered opinion of this Court, the Tribunal has rightly
assessed the income of Injured on minimum wages payable to an
unskilled worker. However, in light of Supreme Court's Constitution
Bench decision in Pranay Sethi (Supra), addition towards "future
MAC.APP. 395/2018
prospects" has to be 40% and not 50%, as granted by the Tribunal. There
is no basis to grant any compensation under the head of "future
conveyance" and "future special diet" and so, compensation granted
under these heads is set aside. In the instant case, there is no basis to grant
compensation under the head "loss of expectation of life".
13. Supreme Court in G. Ravindranath (supra), while dealing with the
case of a 19 year old boy, who was rendered impotent due to the injuries
sustained by him, has awarded compensation of `3,00,000/- under the
head of "pain and sufferings" and another sum of `4,00,000/- under the
head of "loss of amenities of life and prospects of marriage".
Considering that Injured in the instant case was aged 31 years and was
married on the day of the accident, I find that the compensation of
`1,50,000/- granted under the head of "pain and suffering" is on lower
side and so, it is deemed appropriate to enhance it to `2,00,000/-. On
account of Injured becoming impotent, due to the injuries sustained in
this accident, compensation granted under the head of "loss of amenities
of life" ought to commensurate with the damage suffered. The
compensation of `1,50,000/- awarded under the head of "loss of
amenities of life" is wholly inadequate and so, in face of evidence on
record, it is enhanced to `3,00,000/-. The compensation granted under
other heads is found to be adequate.
14. However, in view of evidence of Dr. Satish (PW-5), compensation
under the head "future medical expenses" ought to be granted. The
Tribunal has failed to do so, despite the fact that the Injured needs
multiple operations in future in specialized hospital. It is not feasible to
now assess as to what would be the future medical expenses, and instead
MAC.APP. 395/2018
thereof, it is directed that Insurer shall promptly remit "future medical
expenses" to the concerned hospital directly, upon submission of the
requisite documents.
15. In light of aforesaid, "loss of earning capacity" is reassessed as
under:-
`6,656/- X 12 X 16 X 140/100 X 80/100 = `14,31,306/-
16. In view of above, the compensation payable to Injured is
reassessed as under: -
Loss of earning capacity `14,31,306/-
Pain and suffering `2,00,000/-
Loss of amenities `3,00,000/-
Disfigurement `1,00,000/-
Special diet and conveyance upto `50,000/-
the date of Award
Compensation towards medical ` 24,372/-
bills
Total `21,05,678/-
17. Consequentially, the compensation amount payable stands reduced
from `24,91,300/- to `21,05,678/-. The modified compensation be
disbursed in the ratio and manner as indicated in the impugned Award.
Statutory deposit along with excess deposit, be refunded to Insurer.
18. With aforesaid directions, the above captioned appeals are
accordingly disposed of.
(SUNIL GAUR)
JUDGE
JULY 17, 2018
r
MAC.APP. 395/2018
