Delhi High Court
Saurabh Sharma vs Bharti Axa General Insurance Co ... on 10 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 10, 2018
+ MAC.APP. 1014/2017
BHARTI AXA GEN INSURANCE CO. LTD. ..... Appellant
Through: Mohammad Mustafa, Advocate
versus
SAURABH SHARMA ..... Respondent
Through: Mr. Rahul Rohtagi and Mr. Syed
Ajmal Hasan, Advocates
+ MAC.APP. 1085/2017
SAURABH SHARMA ..... Appellant
Through: Mr. Rahul Rohtagi and Mr. Syed
Ajmal Hasan, Advocates
versus
BHARTI AXA GENERAL INSURANCE CO LTD & ANR
.....Respondents
Through: Mohammad Mustafa, Advocate for
respondent-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 16th September, 2017 grants compensation of
`18,98,228/- with interest @ 9% per annum to Saurabh Sharma
(hereinafter referred to as „Injured‟), aged 33 years, on account of
grievous injuries suffered by him in a vehicular accident, which took
place on 12th December, 2013.
2. In the above-captioned first appeal, Bharti Axa General Insurance
Co. Ltd. (hereinafter referred to as the „Insurer‟) seeks reduction in the
quantum of compensation awarded by the Tribunal, whereas in the
above-captioned second appeal, enhancement of compensation is sought
by Injured. Since both the appeals arise out of common impugned Award,
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 petitioner has filed the present petition with
the averments that on 12.12.2013, at 9.15 a.m., he was
riding his motorcycle no. DL-7SAD-2780 and reached near
BIT College, Meerut Bypass, UP. One auto rickshaw
bearing no. UP-15BT-6845 being driven by respondent no.1
came in a high speed and in a rash and negligent manner
and hit against motorcycle. He fell down and sustained
fracture and injuries all over the body. He was removed to
Anand Hospital, Meerut where he was operated upon. FIR
no. 56/13, PS, Partapur, District Meerut, U.P was recorded
against respondent no.1. The accident has taken place due
to the rash and negligent driving of respondent no.1."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as „the Tribunal‟) has relied upon evidence of
Injured and as per Disability Certificate (Ex.PW2/A), the Injured had
suffered permanent disability of 30% in relation to right upper and lower
limbs. On the strength of evidence recorded, impugned Award has been
rendered. The breakup of compensation awarded by Tribunal to the
Injured is as under:-
1. Compensation towards pain and suffering `70,000/-
2. Compensation towards medical bills `2,27,228/-
3. Compensation on account of `40,000/-
physiotherapy
4. Loss of earning capacity due to disability `11,52,000/-
5. Loss of earning for a period of 6 months `2,40,000/-
6. Attendant charges for 4 months `14,000/-
7. Special diet and conveyance `35,000/-
8. Compensation towards loss of amenities `40,000/-
and enjoyment of life
9. Compensation towards disfigurement `40,000/-
10. Compensation on account of future `40,000/-
medical expenses
Total `18,98,228/-
5. Learned counsel for Insurer assails impugned Award on the ground
that the accident in question had taken place due to contributory
negligence of Injured, which was to the extent of 25% and that there is
delay of 35 days in lodging of the FIR regarding the accident in question.
It is submitted that the income of Injured has been assessed on the basis
of Salary Certificate, which is of the year 2014 whereas the accident in
question had taken place in the year 2013. It is further submitted that the
income of the Injured ought to have been assessed on minimum wages.
Thus, it is submitted that the compensation granted by the Tribunal
deserves to be suitably reduced.
6. In the above-captioned second appeal, enhancement of
compensation granted by the Tribunal is sought by Injured on the ground
that the Tribunal has erred in not making any addition towards „future
prospects‟ and the medical expenses incurred by the Injured were to the
tune of `3,54,407/-, whereas the Tribunal has granted medical expenses
of `2,27,228/- only. It is further submitted on behalf of Injured that the
Tribunal ought to have assessed the functional disability at 50% and not
at 15%. It is next submitted by learned counsel for Injured that the „cost
of implants‟ is `80,000/- whereas the Tribunal has granted only `40,000/-
. Compensation of `1,70,000/- towards „special diet and conveyance‟ is
also sought by Injured. Further, compensation of `80,000/- is sought by
Injured under the head of „loss of income‟ whereas compensation of
`2,00,000/- has been sought by Injured under the head of „pain and
suffering‟ and compensation of `3,00,000/- is sought by Injured under the
head of „loss of amenities of life‟. Thus, a total compensation of
`42,38,407/- with interest @ 12% per annum is sought by Injured.
Nothing else is urged by either side.
7. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that there is no cross-examination by Insurer on the
delay and contributory negligence aspect and so, quantum of
compensation cannot be altered on this count. The Tribunal has rightly
determined the salary of Injured at `40,000/- per month on the basis of
Ledger Account of employer of Injured, which is on record as Ex.PW3/1.
This Court is of the considered opinion that there is no justification to
assess the income of Injured on the basis of minimum wages.
8. Addition of 40% is made towards „future prospects‟ in view of
Supreme Court's Three Judge Bench decision in Jagdish v. Mohan and
Others, (2018) 4 SCC 571. Insofar as assessment of functional disability
of Injured is concerned, I find that in the face of evidence of Injured and
PW2-Dr.Himanshu, Sr. Resident, Orthopaedic Department, GTB
Hospital, Delhi, the Tribunal has rightly assessed the functional disability
of Injured at 15%. No cogent evidence has been led by Injured regarding
cost of implants and so, this Court finds that the cost of „future medical
treatment‟ assessed by the Tribunal is justified. The multiplier of 16
applied by the Tribunal is appropriate. In view of the aforesaid, the "loss
of earning capacity" of Injured is reassessed as under:-
`40,000/- X 12 X 16 X 140/100 X 15/100 = `16,12,800/-
9. As regards „medical expenses‟ to the tune of `3,54,407/-, I find that
Injured in his chief examination has quantified it and has also placed on
record the medical bills, which reveal that the Injured has incurred
`3,54,407/-. There is no cross-examination of Injured by Insurer in
respect of the medical bills of `3,54,407/- placed on record by Injured.
Since there are no medical bills in respect of remaining „medical
expenses‟ claimed by Injured, therefore, the Tribunal has rightly declined
them, but has erred in not granting „medical expenses‟ of `3,54,407/-. As
such, „medical expenses‟ of `3,54,407/- are granted to Injured. Similarly,
the lump sum compensation of `40,000/- granted by the Tribunal to
Injured on account of expenses incurred by Injured towards
„physiotherapy‟, appears to be on lower side as the Injured had placed on
record the supporting bill (Ex.PW-1/2) to claim physiotherapy expenses
of `1,08,000/-. There is no cross-examination of Injured by Insurer on
this count as well. Hence, compensation of `1,08,000/- is granted to
Injured on account of expenses incurred by him towards „physiotherapy‟.
10. Regarding compensation granted by the Tribunal to Injured under
the „non-pecuniary heads‟, I find it to be just and fair and it is
accordingly maintained. No case for enhancement of compensation under
the „non-pecuniary heads‟ is made out.
11. In view of the aforesaid, the compensation payable to Injured is re-
assessed as under:-
1. Compensation towards pain and suffering `70,000/-
2. Compensation towards medical bills `3,54,407/-
3. Compensation on account of `1,08,000/-
physiotherapy
4. Loss of earning capacity due to disability `16,12,800/-
5. Loss of earning for a period of 6 months `2,40,000/-
6. Attendant charges for 4 months `14,000/-
7. Special diet and conveyance `35,000/-
8. Compensation towards loss of amenities `40,000/-
and enjoyment of life
9. Compensation towards disfigurement `40,000/-
10. Compensation on account of future `40,000/-
medical expenses
Total `25,54,207/-
12. Consequentially, the compensation payable to Injured stands
enhanced from `18,98,228/- to `25,54,027/-, which shall carry interest @
9% per annum. Six weeks' time is granted to Insurer to deposit the
enhanced compensation with the Tribunal concerned. Thereafter, it be
disbursed forthwith to Injured in the manner already indicated in the
impugned Award. Statutory deposit, if any, be refunded to Insurer.
13. While modifying the impugned Award in aforesaid terms, the
above captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 10, 2018
s
