Delhi High Court
Shriram General Insurance Co. ... vs Raj Kumar Verma & Ors. on 19 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 19, 2018
+ MAC.APP. 730/2017 & CM Nos. 29415/2017 & 29417/2017
SHRIRAM GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani,
Ms. Smritee Relan and Mr. Mohd.
Shakim, Advocates
Versus
RAJ KUMAR VERMA & ORS. ..... Respondents
Through: Mr. Varun Sarin, Advocate
+ MAC.APP. 776/2017
RAJ KUMAR VERMA ..... Appellant
Through: Mr. Varun Sarin, Advocate
Versus
BALWANT SINGH & ORS (SHRIRAM GENERAL
INSURANCE CO. LTD.) ..... Respondents
Through: Mr. Sameer Nandwani,
Ms. Smritee Relan and Mr. Mohd.
Shakim, Advocates for R-3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
1. The above captioned two appeals arise out of common impugned
Award of 3rd May, 2017. In the above captioned first appeal, the Insurer
assails the impugned Award to seek exoneration from the liability to pay
compensation awarded by the Tribunal, whereas in the above captioned
second appeal, enhancement in the quantum of compensation is sought by
the Injured. With the consent of learned counsel for the parties, the above
captioned two appeals have been heard together and are being decided
together by this common judgment.
2. Impugned Award grants compensation of `8,39,026/- with interest
@ 9% per annum to injured-Raj Kumar, aged 21 years, on account of
grievous injury suffered by him in a vehicular accident, which took place
on 7th January, 2014. The facts as noticed in the impugned Award are as
under:-
"Brief facts of the case are that on 07.01.2014 at about
09:00 PM, petitioner was travelling in truck bearing
registration No. UP-25AT-6887 which was driven by
respondent No. 1 with high speed and in reckless manner.
Petitioner warned respondent No. 1 not to drive above-said
truck in reckless manner, but he kept on driving the truck
with high speed and reckless manner. When above-said
truck reached near Village Shahi on Bareilly-Pilibhit Road,
respondent No. 1 lost control and collided with another truck
from behind."
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 sustained
disability of 78% in relation to bilateral lower limbs. 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 ₹)
Compensation for Medical ` 1,40,000/-
Expenses
Compensation for Pain & ` 40,000/-
Suffering
Compensation for Special Diet, ` 30,000/-
Attendant and Conveyance
Loss of future earning capacity/ ` 5,54,980/-
future income
Compensation for loss of ` 10,000/-
amenities and enjoyment of life
Compensation for disfigurement ` 20,000/-
Loss of income during treatment ` 44,046/-
Total ` 8,39,026 /-
4. Learned counsel for Insurer assails impugned Award on the ground
that the presence of the Injured at the spot is disputed and so, Insurer
claims immunity from paying the awarded compensation. Learned
counsel for Insurer submits that there is no mention of the injured in the
FIR and the charge-sheet and even in the medical documents, it is not
mentioned that injured had suffered the injuries in a road accident. It is
also submitted by learned counsel for Insurer that the injured was a
gratuitous passenger and so Insurer is not liable to pay the awarded
compensation. It is pointed out that there is no documentary evidence
regarding injured having purchased any goods and so the Insurer has no
liability to pay the awarded compensation.
5. On the contrary, learned counsel for respondent-Injured submits
that the Tribunal has granted compensation which is wholly inadequate
and thus, enhancement of compensation is sought by counsel for Injured
by pointing out that no addition towards future prospects has been made
by the Tribunal and functional disability has been assessed by the
Tribunal at 35%, which is on the lower side. It is submitted by counsel
for Injured that compensation granted under 'non-pecuniary heads' is
meager and so, it needs to be substantially enhanced.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that discharge summary of the Injured was issued by a
government hospital and therein it is clearly recorded that it is a case of
RTA i.e. Road Traffic Accident. So, the presence of injured at the time
and place of accident cannot be disputed because his name does not
appear in the police report regarding this accident. It is so said because
there is no cross-examination of the Injured to doubt his presence at the
time and place of accident.
7. Regarding Injured being a gratuitous passenger, I find that Injured
in his evidence has categorically asserted that he is a vegetable seller and
on the day of accident he had purchased 12 quintals of peas from
Khatima Mandi to sell it in Bareilly Mandi and for each sack of peas, he
had paid ₹40/- and in all he had paid ₹2,400/- to the owner of the insured
vehicle to enable him to carry the peas in the insured vehicle. There is
hardly any cross-examination of Injured on the aforesaid aspect and so, it
cannot be said that Injured was a gratuitous passenger in the insured
vehicle.
8. On the disability aspect, I find that as per the disability certificate
on record, the permanent disability of the injured is 78% in relation to
bilateral lower limbs. On the functional disability aspect, not much has
been said by the Injured in his evidence and so, in light of the evidence of
the Injured and disability certificate on record, I find that the functional
disability of the Injured has been rightly assessed by the Tribunal at 35%.
On the aspect of quantum of compensation awarded, I find that the
Tribunal has assessed 'loss of future earning capacity' on the minimum
wages applicable to an unskilled worker in Uttar Pradesh (U.P) which
was ₹7,341/- p.m on the day of accident. In the instant case, addition of
40% towards future prospects has to be made in view of Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & ors. (2017) 16 SCC 680. Accordingly, 'loss of earning
capacity' is re-assessed as under:-
₹7,341/- X 12 X 18 X 140/100 X 35/100 = ₹7,76,971/-.
9. In the face of medical evidence on record, I find that the
compensation of ₹20,000/- granted by the Tribunal under the head of
'disfigurement' is on the lower side and it is accordingly enhanced to
₹50,000/-. Compensation of ₹10,000/- granted by the Tribunal under the
head of 'loss of amenities and enjoyment of life' is wholly inadequate.
Accordingly, compensation under this head is enhanced to ₹50,000/-.
Compensation of ₹40,000/- granted by the Tribunal under the head of
'pain and suffering' is enhanced to ₹50,000/-. Compensation of
₹30,000/- granted by the Tribunal under the head of 'special diet,
attendant and conveyance charges' is also enhanced to ₹50,000/-. In light
of the aforesaid, compensation payable is re-assessed as under :-
Head of Compensation Amount(in ₹)
Loss of earning capacity `7,76,971/-
Deformity ₹ 50,000/-
Pain & Suffering ` 50,000/-
Special Diet, Attendant and ` 50,000/-
Conveyance charges
Loss of Amenities and enjoyment ` 50,000/-
of life
Loss of income during treatment ` 44,046/-
Medical Expenses `1,40,000/-
Total ` 11,61,017/-
(rounded off to
₹11,61,020/-)
10. Consequentially, the compensation amount payable stands
enhanced from `8,39,026/- to `11,61,020/-. 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.
Statutory deposit, if any, be refunded to Insurer.
11. With aforesaid directions, these appeals and applications are
accordingly disposed of.
(SUNIL GAUR)
JUDGE
JULY 19, 2018
SRwt
