Delhi High Court
Virender Kumar vs Mukesh Kumar & Ors on 23 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 23, 2018
+ MAC.APP. 62/2012
VIRENDER KUMAR ..... Appellant
Through: Ms. Uma Khokhar, Advocate
versus
MUKESH KUMAR & ORS .....Respondents
Through: Mr. Pankaj Seth, Advocate for
respondent No.3-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 20th September, 2011 grants compensation of
`17,41,600/- with interest @ 7.5% per annum to appellant/injured-
Virender Kumar, aged 26 years, on account of grievous injury suffered by
him in a vehicular accident, which took place on 3rd May, 2008. The
facts, as noticed in the impugned Award, are as under:-
"The petitioner has filed the present claim petition by
way of the present petition under Section 166 and 140 of the
Motor Vehicle Act seeking compensation for permanent
disability caused by the accidental injuries sustained by the
petitioner. It is the case of the petitioner that on 03.05.08 at
about 12 O‟clock, he was standing on extreme left of road
near Karala Village at Kirala T Point near Murli Sweets. In
the meanwhile, a Tata Truck LP-2515, bearing no. HR-55F-
9373 which was being driven in a rash and negligent manner
came from Kanjhawala side and was going towards Mundka
side, suddenly hit him from its left side and ran over his both
legs. It is further alleged that after the occurrence of this
accident, the driver of the offending vehicle had stopped the
truck and was caught red handed on the spot by the public
persons who were present there. The friend of petitioner and
other people called the PCR and gave information regarding
grievous injuries and fracture on both his legs and other
parts of body. After some time of the accident, petitioner was
admitted in Sanjay Gandhi Memorial Hospital, Delhi by his
friend. It is alleged that in the hospital, doctors provided the
petitioner immediate medical help but his condition
continued to be critical and, therefore, on 04.05.08,
petitioner was taken to Maharaja Aggarsen Hospital by his
family members for providing better medical facilities, where
30 bottles blood was transfused to the petitioner and he
remained admitted at Agrasen Hospital as an indoor patient
for one month. It is further the case of the petitioner that his
right leg was operated by the doctors and a rod was inserted
and again his second operation was done and skin grafting of
his right leg was conducted again. The surgery of his left leg
was postponed. It is the case of the petitioner that again on
19.06.2008, his second operation was conducted and he was
again discharged from the hospital on 23.06.08 and
thereafter, he is bed ridden in his house. It is claimed that the
petitioner has incurred medical expenditure of more than Rs.
3 lacs on his treatment and his treatment is still continuing.
At the stage of evidence, petitioner deposed that he has
incurred expenditure of Rs. 5.5 Lacs and later during further
proceedings, some more medical bills have been filed. The
FIR No. 75/2008 dated 03.05.08 under Section 279/337 IPC
at PS Kanjhawala was registered against the
driver/respondent No. 1, and the driver was arrested. It is
the case of the petitioner that the offending Truck was being
driven by respondent No. 1 at a very high speed in a rash,
negligent and reckless manner, as a result of which, it hit the
petitioner causing him to fall down on the road thereby
sustaining grievous injuries resulting in permanent
disability."
2. To render the impugned Award, learned Motor Accident Claims
Tribunal (hereinafter referred to as "the Tribunal") has relied upon
evidence of appellant-injured and as per the Disability Certificate (Ex.
PW2/118), Injured had suffered 96% permanent disability in relation to
both lower limbs and the Tribunal has assessed the functional disability at
80%. The breakup of compensation awarded by the Tribunal is as under:-
Loss of earning capacity `11,01,600/-
Medical expenses ` 5,00,000/-
Attendant Charges ` 20,000/-
Conveyance and special diet ` 20,000/-
Pain and sufferings ` 1,00,000/-
Total ` 17,41,600/-
3. Learned counsel for appellant-Injured submits that the quantum of
compensation granted is inadequate and it needs to be suitably enhanced.
She further submits that the „medical expenses‟ of more than `9 lacs were
incurred, but the Tribunal has erred in granting `5 lacs only towards the
„medical expenses‟. It is further submitted that the „attendant charges‟ of
`20,000/- is wholly inadequate. Attention of this Court is drawn to
additional evidence of Dr. Hans U. Nagar (AW-2) and the evidence of
appellant-Injured (AW-1) regarding „medical expenses‟ incurred during
the pendency of this appeal as well as in respect of „future medical
expenses‟. So, enhancement of compensation is sought in this appeal.
4. On the contrary, learned counsel for respondent-Insurer supports
the impugned Award and maintains that the compensation granted is just
and proper.
5. Upon hearing and on perusal of impugned Award and the evidence
on record as well as the additional evidence led, I find that the Tribunal
has relied upon the final medical bills while excluding the duplicate and
provisional bills and so, on its basis, „medical expenses‟ of `5 lacs have
been granted to appellant which are found to be justified. As regards
„attendant charges‟, I find that no tangible evidence has been led on this
aspect. However, the „attendant charges‟ of `20,000/- granted by the
Tribunal under this head is quite meager and it is accordingly enhanced to
`1 lac. The compensation granted under the head of „special diet‟ and
„conveyance charges‟ appears to be reasonable and is thus maintained.
However, compensation granted under the head of „pain and suffering‟
appears to be on lower side and it is accordingly enhanced from `1 lac to
`3 lacs as Injured had suffered 80% disability and is bed-ridden. The
Tribunal has erred in not granting any compensation under the head of
„loss of amenities of life‟. In the facts and circumstances of this case, it is
deemed fit to grant compensation of `3 lacs to appellant-Injured under
the head of „loss of amenities of life‟. Under the head of „loss of earning
capacity‟, the Tribunal has granted `11 lacs odd, which I find to be
reasonable and is thus maintained.
6. As far as compensation granted under the head of „future medical
expenses‟ is concerned, I find that appellant-Injured has placed on record
medical bills (Ex.AW1/1 colly.) to the tune of `2,39,209/- and another set
of medical bills (Ex.AW1/2 colly.) are of `5,17,150.52/-. Thus, the total
medical expenses already incurred by appellant during the proceedings
before the Tribunal are of `7,56,359.52/-, which is rounded off to
`7,56,360/-, which have not been taken into consideration by the Tribunal
because these bills were produced at the final stage of hearing. It is so
evident from trial court's order-sheet of 25th July, 2011. In the considered
opinion of this Court, appellant is entitled to aforesaid expenses so
incurred. As regards estimate for „future medical treatment‟, there is
evidence of Dr. Hans, which reveals that he does not stand by the
estimate for the surgery given by him. Otherwise also, it has come in
evidence of this witness (AW-2) that the estimate does not have any
comparative quotation from Sama Hospital. In this view of this matter, it
is deemed appropriate to permit appellant to obtain „future medical
treatment‟ from the hospital having cashless facility which is on the panel
of respondent-Insurer and the „future medical expenses‟ so incurred be
forwarded by the said hospital directly to respondent-Insurer, who shall
transmit the expenses incurred directly to the concerned panel hospital of
respondent-Insurer.
7. In view of aforesaid, the compensation payable to Injured as
reassessed as under: -
Loss of earning capacity `11,01,600/-
Medical expenses ` 5,00,000/-
Additional medical expenses ` 7,56,360/-
Attendant Charges ` 1,00,000/-
Conveyance and special diet ` 20,000/-
Pain and sufferings ` 3,00,000/-
Loss of amenities of life ` 3,00,000/-
Total ` 30,77,960/-
8. Consequentially, the compensation amount payable stands
enhanced from `17,41,600/- to `30,77,960/-. The enhanced compensation
be deposited by Insurer with the Tribunal within six weeks from today. A
Three Judge Bench of Supreme Court in a recent decision of Jagdish v.
Mohan and Others, (2018) 4 SCC 571 has granted interest @ 9% per
annum on the awarded compensation and so, appellant is also entitled to
interest @ 9% per annum. Accordingly, re-assessed compensation
(except additional medical expenses) shall carry interest @ 9% per
annum. The interest on the „additional medical expenses‟ shall be from
the year 2013 till the realization at the same rate of interest i.e. 9% per
annum. The enhanced compensation be disbursed by the Tribunal in the
ratio and manner as indicated in the impugned Award.
9. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
JULY 23, 2018
s
