Delhi High Court
Tata Aig General Insurance Co Ltd vs Shyam @ Deepak And Ors on 11 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 11, 2018
+ MAC.APP. 475/2017
TATA AIG GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. Rudra Kahlon and Ms.
Vandana Kahlon, Advocates
versus
SHYAM @ DEEPAK AND ORS .....Respondents
Through: Mr. S.N.Parashar, Advocate for
respondent-Claimant
+ MAC.APP. 1059/2017
SHYAM @ DEEPAK ..... Appellant
Through: Mr. S.N.Parashar, Advocate
versus
RAVI KUMAR & ORS (TATA AIG GEN INS CO LTD)
.....Respondents
Through: Mr. Rudra Kahlon and Ms.
Vandana Kahlon, Advocates for
respondent-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 14th February, 2017 grants compensation of
`4,35,462/- with interest @12% per annum to injured-Shyam @
Deepak(hereinafter referred to as „Injured‟) aged 32 years, on account of
grievous injuries suffered by him in a vehicular accident, which took
place on 22nd November, 2011.
2. In the above-captioned first appeal, TATA AIG General Insurance
Co. Ltd. (hereinafter referred to as „Insurer‟) seeks exoneration from
paying the awarded compensation while disputing the involvement of
insured vehicle in the accident in question. A challenge is also made by
Insurer's counsel to grant of interest @12% per annum on the awarded
compensation. 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:-
"Briefly the facts of the case are that on 22.11.11,
the petitioner was coming back from the marriage of his
cousin from Timarpur to his home via Khajuri pusta while
driving his motorcycle bearing no. DL 4S AS 0276. When
he reached at 3-1/2 Pusta, New Usmanpur at about 12:30
am (night), he was hit by Santro Car bearing registration
No. DL 8 CN 9145 which was being driven by its driver /
respondent No.1 in a very high speed, rashly and
negligently, coming from the back side of the petitioner.
The petitioner fell down and sustained multiple injuries
and thereafter become unconscious. Later on in the
hospital, the petitioner lost his one eye vision. He was
shifted to Ganga Ram Hospital. As contended, the
petitioner was working as property dealer and earned
about Rs.12,000/- p.m."
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.PW1/15), Injured had
suffered permanent disability to the extent of 30% in relation to left eye.
On the strength of evidence recorded, impugned Award has been
rendered by the Tribunal. The breakup of compensation awarded to
Injured by the Tribunal is as under:-
1. Compensation towards pain and `2,00,000/-
suffering
2. Compensation towards amenities ` 50,000/-
of life
3. Loss of future income due to Nil
disability
4. Towards Servant/Attendant ` 25,000/-
Charges
5. Towards conveyance & Special ` 40,000/-
diet
6. Towards medical bills ` 80,526/-
7. Towards loss of Wages ` 39,936/-
Total ` 4,35,462/-
5. Learned counsel for Insurer assails impugned Award on the ground
that involvement of insured vehicle in causing the accident in question
does not stand proved. Attention of this Court is drawn to the Mechanical
Inspection Report of insured car to point out that there was no damage to
the insured vehicle. Reliance is sought to be placed by Insurer's counsel
upon police statement of a Tea-Vendor to submit that at the time of
accident, it was pitch-dark and so, it was not possible for Injured to have
noted the registration number of the insured vehicle. It is pointed out that
Dr. Rajiv Sharma in his evidence has deposed that the injuries sustained
by Injured were sufficient to cause immediate loss of consciousness and
so, the possibility of Injured noting down the registration number of the
insured vehicle is ruled out. It is submitted by Insurer's counsel that
Injured had not made any phone call from his mobile after this accident
and he did not disclose where he had noted down the registration number
of the insured vehicle. It is also pointed out that after 47 days of this
accident, the registration number of the insured vehicle has been
disclosed by Injured to the police. So, it is submitted that liability to pay
the awarded compensation is not of Insurer.
6. On the contrary, learned counsel for Injured refutes the aforesaid
stand taken on behalf of Insurer and submits that the quantum of
compensation granted by the Tribunal is inadequate. Enhancement of
compensation is sought by learned counsel for Injured on the ground that
the Tribunal has erred in not granting „loss of future income due to
disability‟. It is submitted that the medical bills of `5,94,251/- were
placed on record, but the Tribunal has erred in granting medical expenses
to the tune of `80,000/- only. It is pointed out that in Reply to the claim
petition, the stand taken by owner of insured car is that driver of the
insured car was not negligent. It is also pointed out that Notice under
Section 133 of the Motor Vehicles Act, 1988 (Ex.PW1/11) was served
upon owner of the insured vehicle and in the Reply, he has admitted that
the insured vehicle was involved in this accident and after this accident,
he got it repaired.
7. Attention of this Court is drawn by learned counsel for Injured to
evidence of Dr.R.K.Sharma (PW-2) and Dr. Anshul Gupta (PW-3) to
point out that Injured could have noted the registration number of insured
vehicle immediately after the accident as he was conscious for ten
minutes. So, it is submitted that the compensation granted by the Tribunal
is on lower side and it needs to be suitably enhanced.
8. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that owner of insured car in the Reply to the claim
petition of Injured, has stated that the accident in question had taken place
due to negligence of Injured and so, the owner is not liable to pay the
awarded compensation. It is also stated in the Reply by owner of insured
vehicle that the compensation claimed is highly excessive.
9. On the aspect of involvement of insured vehicle in the accident in
question, I find that there is no worthwhile cross-examination of Injured.
Rather, it has surfaced in the cross-examination of Injured that insured
vehicle had come from behind and left side of the insured vehicle had
struck against the rear-side of the motorcycle, which was being driven by
Injured. It has been categorically stated by Injured that he had remained
conscious for about ten minutes after the accident and driver of insured
vehicle had stopped the vehicle at a distance of 8 to 10 steps and then had
reversed the car and stopped near Injured and had stepped out of his car
to see the condition of Injured and thereafter, driver of insured vehicle
had fled away. Injured in his evidence had stated that the insured vehicle
was Santro car of white colour. There is no cross-examination on the
aspect of registration number of insured car. Evidence of Dr. Anshul
Gupta (PW-3) regarding the capacity of Injured to remember what had
happened immediately after the accident in question is not categoric. Dr.
R.K. Sharma (PW-2) in his evidence has deposed that it is nowhere
mentioned in the discharge summary of Injured that Injured had lost his
memory after this accident. However, it has come in the evidence of this
witness (PW-2) that Injured had remained unconscious for more than 48
hours of this accident. How the Injured could have noted down the
registration number of insured car or where Injured had noted down the
registration number of insured car, has not been brought out in the cross-
examination of Injured.
10. The Mechanical Inspection Report of insured vehicle may not
disclose any damage, but this by itself is not of any consequence because
driver of insured vehicle has not been got examined to demolish the
version of Injured, who had, in no uncertain terms, deposed that the
accident in question was caused by driver of insured vehicle.
Undisputedly, Ravi was the driver of the insured vehicle. In view of
foregoing narration, this Court is of the considered view that since there
is no effective cross-examination of Injured on the aspect of involvement
of insured vehicle in the accident in question, therefore, the Insurer
cannot be absolved from the liability to pay the awarded compensation.
11. On the aspect of quantum of compensation granted to Injured by
the Tribunal, I find that the Tribunal has assessed the „loss of wages‟
while relying upon the minimum wages for unskilled worker because no
evidence was led by Injured on the income aspect. To say the least, it
remains beyond dispute that Injured was driving the motorcycle when this
accident took place. So, income of Injured has to be assessed on
minimum wages payable to a skilled worker, which, at the relevant time,
were `8,112/- per month. Hence, „loss of wages‟ payable to Injured for a
period of six months is re-assessed as under:-
₹8,112/- per month X 6 = ₹48,672/-
12. 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. Injured was aged 32 years on the day of the
accident and so, applicable multiplier is of 16. Insofar as assessment of
functional disability of Injured is concerned, I find that since Injured has
lost vision in his left eye to the extent of 30%, therefore, the Tribunal has
rightly assessed the functional disability of Injured at 30%. Accordingly,
the "loss of earning capacity" of Injured is re-assessed as under:-
`8,112/- X 12 X 16 X 140/100 X 30/100 = `6,54,151.68/-
(rounded off to `6,54,152/-)
13. As regards „medical expenses‟, I find that the Tribunal has granted
„medical expenses‟ of `80,526/-. However, there are medical bills on
record to the tune of `5,94,251/-. In the face of documentary evidence in
the shape of medical bills, Injured is entitled to and is granted „medical
expenses‟ of `5,94,251/-. Regarding compensation granted by the
Tribunal to Injured under „non pecuniary heads‟ is concerned, I find it to
be just and fair and it is accordingly maintained. Thus, no case for
enhancement of compensation under the „non pecuniary heads‟ is made
out.
14. In view of above, the compensation payable to Injured is
reassessed as under: -
1. Compensation towards pain and `2,00,000/-
suffering
2. Compensation towards amenities of ` 50,000/-
life
3. Loss of earning capacity `6,54,152/-
4. Towards Servant/ Attendant Charges ` 25,000/-
5. Towards conveyance & Special diet ` 40,000/-
6. Towards medical bills ` 5,94,251/-
7. Towards loss of Wages `48,672/-
Total ` 16,12,075/-
15. Consequentially, the compensation payable to Injured stands
enhanced from `4,35,462/- to `16,12,075/-. Interest @12% per annum
granted on the awarded compensation by the Tribunal is set aside as 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, in the instant case, it is
directed that the re-assessed compensation shall carry interest @ 9% per
annum. The modified compensation alongwith interest @ 9% per annum
be deposited by Insurer with the Tribunal within six weeks from today.
The reassessed compensation be released forthwith to Injured in the
manner as indicated in the impugned Award. Statutory deposit, if any, be
refunded to Insurer.
16. While modifying the impugned Award in aforesaid terms, the
above captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 11, 2018
s
