Delhi High Court
National Insurance Co. Ltd. vs Ravi Makhija & Anr. on 23 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 23, 2018
+ MAC.APP. 231/2013
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
RAVI MAKHIJA & ANR. ..... Respondents
Through: Mr. Ravi Makhija &
Ms. MonikaYadav, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 3rd December, 2012 grants compensation of
`17,63,069/- with interest @ 7.5% per annum to respondent/Injured-Ravi,
aged 36 years, on account of grievous injury suffered by him in a
vehicular accident, which took place on 14th November, 2009. The facts
as noticed in the impugned Award are as under:-
"Brief facts of the case are that on 14.11.2009 Sh. Ravi
Makhija (hereinafter referred to as petitioner) was
proceeding via Maitri College towards Ring Road by driving
his car bearing no.DL-2CAD-8393 at a normal speed by
observing the traffic rules and norms. At about 2.15 PM on
that day when he reached near St. Martin Marg, Paryavaran
Park then all of a sudden a car bearing no. KL-7Y-6049
(hereinafter refer as offending vehicle) being driven and
owned by the respondent no.1 (in short R1) in rash and
negligent manner in the contravention of the traffic rules and
norms and hit his car front side after coming wrong side.
Due to the forceful impact of the hit, the petitioner sustained
grievous injuries on his body. He was removed from the
place of accident to RML Hospital where his MLC bearing
no. 171492/09 was prepared."
2. 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 (Ex. PW6/A), Injured
had suffered 7% injuries in relation to right lower limb. On the strength of
evidence recorded, impugned Award has been rendered. The breakup of
compensation awarded by Tribunal is as under:-
Loss of medicine and treatment `2,55,633/-
Loss of Income on account of `9,66,579/-
leaves
For loss on account of permanent `4,30,857/-
disability
Pain and Suffering `50,000/-
Conveyance & Special diet `30,000/-
Loss of amenities `30,000/-
Total `17,63,069/-
3. Learned counsel for appellant-Insurer assails the impugned Award
on the ground of lack of negligence of the driver of Insured vehicle, and
submits that quantum of compensation granted is on the higher side and it
needs to be suitably reduced. It is submitted that appellant is the Insurer
of Car No. KL-7Y-6049 and the finding regarding the negligence is
perverse, as the Tribunal has not adverted to the evidence on record. It is
next submitted by counsel for Insurer that the Injured has not remained on
leave for 425 days and therefore, the Tribunal has erred in granting
compensation of `9,66,579/-. To submit so, attention of this Court is
drawn to the evidence of Awanish Kumar (PW-3), Finance Manager of
Injured's employer company, who in his evidence has not stated that for
the leave period, no salary was disbursed to the injured and therefore, it is
submitted that no case for grant of compensation on account of "loss of
income on account of leave" is made out.
4. Counsel for Insurer further submits that exorbitant compensation of
`4,30,857/- has been granted by the Tribunal on account of permanent
disability, which is 7% only and since the injured is in employment and
so, no compensation under this head is payable to the Injured. Thus,
setting aside of impugned Award is sought by appellant-Insurer.
5. On the contrary, learned counsel for respondent-injured supports
the impugned Award and maintains that the compensation granted is just
and proper.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that evidence of the Injured on the negligence aspect has
not been challenged. Otherwise also, negligence of driver of the insured
vehicle is apparent on the face of record. As regards compensation
granted on account of leave of 425 days, I find that there is no basis for
the Tribunal to conclude that no increments were granted for the leave
period or that it has resulted in denial of promotion to Injured. It is
evident from the evidence of the witness (PW-3) from the office of
employer that leave period of the Injured was about one year and the pay
package of Injured was around `13,00,000/- only, and so, compensation
of `9,66,579/- granted under the head of "loss of income due to leaves" is
modified and Injured is granted compensation of `8,30,000/- under the
aforesaid head.
7. As per Disability Certificate (EX. PW6/A), "permanent disability"
suffered by injured is 7% in relation to right lower limb and the Tribunal
has taken the "functional disability" as 50% of 7% i.e. 3.5%, which
appears to be justified in the facts of instant case. The compensation
amount of `4,30,857/- granted by the Tribunal under the head of "loss on
account of permanent disability", is justified in view of the evidence on
record. I find no justification to vary the quantum of compensation
granted to Injured under this head. The compensation granted to Injured
under the non-pecuniary heads is found to be just and reasonable.
8. In view of aforesaid, the compensation payable to Injured as
reassessed as under: -
Loss of medicine and treatment `2,55,633/-
Loss of Income on account of `8,30,000/-
leaves
For loss on account of permanent `4,30,857/-
disability
Pain and Suffering `50,000/-
Conveyance & Special diet `30,000/-
Loss of amenities `30,000/-
Total `16,26,490/-
9. Consequentially, the compensation amount payable stands reduced
from `17,63,069/- to `16,26,490/-. As far as interest on the
compensation granted by the Tribunal is concerned, I find that it needs to
be brought in tune with Supreme Court's Three Judge Bench decision in
Jagdish v. Mohan and Others, (2018) 4 SCC 571, wherein interest @ 9%
per annum has been granted on the awarded compensation and so, in the
instant case, it is directed that the re-assessed compensation shall carry
interest @ 9% per annum. Such a course has been adopted because
Supreme Court in Reshma Kumari & Ors. v. Madan Mohan & Anr.,
(2013) 9 SCC 65 has reiterated that it is the obligation of the Court to
ensure that the compensation granted is just, fair and proper. The
modified compensation alongwith interest @ 9% p.a. be released
forthwith to the Injured. Statutory deposit alongwith excess deposit, if
any, be refunded to appellant-Insurer.
10. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
JULY 23, 2018
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