Delhi High Court
The New India Assurance Company ... vs Chaitanya Kumar Bhardwaj & Ors on 20 March, 2018
$~1 & 21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : March 20, 2018
+ MAC.APP. 718/2015 & CM No.19672/2015
THE NEW INDIA ASSURANCE COMPANY
LIMITED ..... Appellant
Through: Ms.Awantika Manohar, Advocate
versus
CHAITANYA KUMAR BHARDWAJ & ORS ..... Respondents
Through: Mr.Lokesh Kumar Mishra and
Mr.Himanshu Sharma, Advocates for R-1
+ MAC.APP. 132/2018
CHAITANYA KUMAR BHARDWAJ ..... Appellant
Through: Mr.Lokesh Kumar Mishra and
Mr.Himanshu Sharma, Advocates
versus
ABHISHEK SINGH AND ORS
(NEW INDIA ASSURANCE CO LTD) ..... Respondent
Through: Mr.Sandeep Prabhakar, Advocate and
Mr.Vikas Mehta, Advocate for R-2
Ms.Awantika Manohar, Advocate for R-3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 8th July, 2015 grants compensation of
`34,19,342/- with interest @ 9% to Chaitanya Kumar Bhardwaj on account
of the injuries sustained by him in a vehicular accident on 27 th December,
2012. The breakup of the compensation granted by the Motor Accident
Claims Tribunal (hereinafter referred to as Tribunal) is as under:-
1. Future Loss of Income `29,16,000.00
2. Toward Pain Shock & Suffering ` 50,000.00
3. Towards Loss of Amenities & Enjoyment ` 50,000.00
of Life
4. Towards servant/attendant charges ` 20,000.00
5. Towards conveyance & special diet ` 20,000.00
6. Towards medical bills ` 1,01,342.00
7. Towards Loss of Wages ` 1,62,000.00
8. Towards Loss of Marriage Prospects ` 1,00,000.00
Total = `34,19,342.00
2. In the above captioned first appeal, The New India Assurance Co.
(hereinafter referred to as the Insurer) seeks reduction of the quantum of
compensation whereas in the above captioned second appeal, Chaitanya
Kumar Bhardwaj (hereinafter referred to as the Injured) seeks enhancement
of compensation. Since these appeal are directed against common impugned
Award, therefore, these appeals have been heard together and are being
decided by this common judgment.
3. Since the factual aspects are already noticed in the opening
paragraphs of the impugned Award and so, needs no reproduction. The
challenge to the impugned Award by the Insurer is principally on the ground
that the disability suffered by the Injured was not permanent. It is also the
case of learned counsel for Insurer that the functional disability has been
erroneously assessed at 50% and in view of the nature of injury sustained by
the Injured, it ought to have been assessed at 30%. It is also the submission
of learned counsel for Insurer that there is no documentary evidence to
support the claim of Injured regarding his income.
4. On the contrary, learned counsel for Injured seeks enhancement on
the ground that future prospects of Injured have been curtailed due to the
injury suffered by him in this accident but still no compensation under this
head has been granted to him. It is pointed out that Injured was 25 years of
age at the time of the accident and so 50% addition ought to have been made
towards future prospects of the Injured. The submission of counsel for
Injured is that the functional disability is actually 100% and not 50% as the
Injured cannot effectively work in the field in which he was working and so,
he has become a monk. Learned counsel for Injured submits that the
compensation granted under the head of pain and suffering is inadequate and
it needs to be enhanced from `50,000/- to `2,00,000/-. Enhancement of
compensation granted under the head of loss of marriage prospects is sought
from `1,00,000/- to `2,00,000/- by learned counsel for the Injured. It is
pointed out by learned counsel for Injured that the attendant charges granted
by the Tribunal are inadequate and it needs to be enhanced from `20,000/-
to `1,00,000/-. Nothing else is urged by either side.
5. Upon hearing and on perusal of impugned Award and the evidence on
record, I find that as per evidence of Dr.A.K.Mishra (PW-3), the physical
impairment has not been described as permanent disability but in the cross-
examination, the answer given by witness to the question put by the Insurer
is as under:-
"Q. I put to you is there any possibility of further
improvement in the said disability assessed. Is there any effect
of such disability on the day to day activities of patient?
A. As on today, I could say there are remote chances of
improvement in his condition."
6. It is evident from the aforesaid answer that the disability suffered by
the injured was in fact of permanent nature. So far as the functional
disability is concerned, the Tribunal has assessed it to be 50%. The Injured
in his evidence by way of affidavit has asserted that due to the injury
suffered by him in this accident, he feels no power in his right hand and he
has met various doctors but to no avail. Injured in his evidence by way of
evidence claimed that out of frustration, he has become monk or saint as he
is unable to work, his marriage prospects have ruined and he is dependent
upon others for his day to day routine work and has no source of earning
now. Nothing more is said by the injured in his evidence by way of affidavit
regarding the functional disability. There is no cross-examination of the
Injured by Insurer on the functional disability suffered by him. This Court is
of the considered view that the Tribunal has rightly assessed the functional
disability of Injured at 50%. Enhancement on the plea of functional
disability being 100% is thus rejected.
7. Regarding the income of Injured, there are salary slips on record and
even the employer has been examined and so, no case for reduction of the
compensation on this account is made out. The Injured was earning
`27,000/- when he had sustained the injuries in this accident. Though
Injured had received the interview call from RITES (Wing) of Indian
Railways and he could not appear for the said interview due to the injuries
suffered in the accident but there is no evidence on record to show what was
the salary being offered to him by RITES (Wing) of Indian Railways. Since
Injured was working as Marketing Manager at a salary of `27,000/- per
month plus incentives, therefore, it can be reasonably assumed that due to
the disability suffered by him in this accident, the prospects of his promotion
etc. would have been substantially compromised. Considering the nature of
employment of Injured and the functional disability suffered by him, the
Tribunal ought to have granted reasonable compensation under the head of
'loss of future income'.
8. In an injury case, Supreme Court in Raj Kumar Vs. Ajay Kumar
(2011) 1 SCC 343 has assessed the loss of future earnings by adopting the
applicable multiplier with reference to the age. Recently, Supreme Court in
Jagdish Vs. Mohan & Ors. 2018 SCC OnLine SC 184 while dealing with
the case of an injured has declared that the loss of future prospects should
not be confined only to those who have permanent job and would extend to
self-employed or fixed salary individuals also. The Injured was having
fixed income of `27,000/- per month and so addition of 40% towards future
prospects ought to be made in view of a recent Supreme Court decision in
Jagdish (supra). By adding 40% towards future prospects and by applying
multiplier of 18, the loss of future income of Injured is re-assessed at
`40,82,400/-.
9. After having scrutinized the evidence on record, I find that no case for
enhancement of compensation under other heads is made out. In the
considered opinion of this Court, the reasonable compensation to which the
Injured is entitled to, is as under:-
1. Future Loss of Income `40,82,400.00
2. Toward Pain & Suffering ` 50,000.00
3. Towards Loss of Amenities & Enjoyment ` 50,000.00
of Life
4. Towards servant/attendant charges ` 20,000.00
5. Towards conveyance & special diet ` 20,000.00
6. Towards medical bills ` 1,01,342.00
7. Towards Loss of Wages ` 1,62,000.00
8. Towards Loss of Marriage Prospects ` 1,00,000.00
Total `45,85,742.00
10. In view of the aforesaid, the compensation granted by the Tribunal is
enhanced form `34,19,342/- to `45,85,742/- with interest @ 9% per annum.
The mode of disbursal shall be the same as indicated in the impugned
Award. The Insurer is directed to deposit the enhanced compensation with
the Tribunal within a period of four weeks and thereafter, the Tribunal shall
forthwith release the enhanced compensation to the Injured. After deposit of
enhanced compensation by the Insurer, the statutory deposit be refunded to
Insurer as per rules.
11. With aforesaid directions, these two appeals and the application are
disposed of.
(SUNIL GAUR)
JUDGE
MARCH 20, 2018
mamta
