Delhi High Court
Shriram General Insurance Co. ... vs Mahesh & Ors on 6 September, 2018
$~4 and 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 6, 2018
+ MAC.APP. 182/2017 and CM Nos. 7697/2017, 21823/2018
SHRIRAM GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Singh Thakur,
Advocate for Mr. Sameer
Nandwani, Advocate
Versus
MAHESH & ORS ..... Respondents
Through: Mr. Varun Sarin, Advocate
+ MAC.APP. 183/2017 and CM Nos. 7699/2017, 21847/2018
SHRIRAM GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Singh Thakur,
Advocate for Mr. Sameer
Nandwani, Advocate
Versus
MOFID KHAN & ORS ..... Respondents
Through: Mr. Varun Sarin, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned two appeals relate to a vehicular
accident which took place on 1st July, 2014 in which a DTC driver
- Mahesh and a student - Mofid Khan were injured. Vide common
impugned Award of 24th December, 2016, compensation has been
granted to the respondents-Injured by the Tribunal. With the
consent of learned counsel for the parties, the above captioned two
appeals have been heard together and are being decided together by
this common judgment.
2. In the above captioned first appeal, the challenge is to
impugned Award vide which compensation of ₹23,21,100/- with
interest @8% p.a. has been granted to respondent/Injured -
Mahesh, aged 38 years on account of grievous injuries sustained by
him in this vehicular accident. In the above captioned second
appeal, the impugned Award which grants compensation of
₹4,49,100/- with interest @ 8% p.a. to respondent/Injured- Mofid
Khan, aged 12 years on account of the injuries suffered by him in
this vehicular accident is under challenge.
3. The factual background giving rise to these appeals, as
noticed in the impugned Awards, is as under :-
"Insurance company in its reply has stated that as per
rukka which is recorded on the basis of statement of
one injured Mahesh who happened to be the driver of
the involved vehicle DTC bearing no. DL 1P C 7117,
the alleged accident had taken place on 01.07.2014 at
about 9.30 PM nearly Asthal temple when the alleged
offending truck bearing no. HR 38 Q 8796 came from
the front and hit a TSR bearing no. DL 1L Q 9468
which was moving ahead to the DTC bus. In that
course the driver of the DTC bus also took a sharp left
turn and the said truck also hit the DTC bus from the
front side. It is further stated that as per charge sheet,
after receiving DD entry 34A dated 01.07.14 ASI
alongwith Ct. Ashok reached on the spot where they
found DTC bus bearing no. DL 1P C 7117, Champion
TSR no. 9468 and one Dumper truck no. HR 38 Q
3796 in accidental condition. It is further stated that as
per site plan, it is head on collision and that too on the
middle of the road. It is further stated that the impact
occurred between the alleged offending vehicle and
TSR no. DL 1L Q 9468 first and then to the DTC bus
DL 1P C 7117 and dumper no. HR 38 Q 8796. It
however, admitted that the alleged offending vehicle
was insured with it vide policy no.
10003/31/14/651371 till 21.01.2015."
4. To render the impugned Award, learned Motor Accident
Claims Tribunal (hereinafter referred to as the "Tribunal") has
relied upon evidence of injured and the other evidence on record.
On the strength of evidence recorded, impugned Award has been
rendered. The breakup of compensation awarded by Tribunal to
Injured-Mahesh is as under:-
Medical Expenses ` 12,100/-
Pain & Suffering & Enjoyment of ` 1,50,000/-
life
Special Diet, Conveyance & ` 66,000/-
Attendant
Loss of income during treatment ` 1,73,000/-
Loss of Future Income ` 17,70,000/-
Loss of Amenities and on account ` 1,50,000/-
of Dis-Figurement
Total ` 23,21,100/-
The breakup of compensation awarded by Tribunal to
Injured- Mofid Khan is as under:-
Medical Expenses ` 4,100 /-
Pain & Suffering & Enjoyment of ` 1,00,000/-
life
Special Diet & Conveyance & ` 65,000/-
Attendant
Loss of Education ` 10,000/-
Loss of Future Income ` 1,70,000/-
Loss of Amenities ` 1,00,000/-
Total ` 4,49,100/-
5. Learned counsel for appellant - Shriram General Insurance
Co. Ltd. (hereinafter referred to as Insurer), assails the impugned
Award on the ground that Tribunal has erred in assessing the
functional disability of injured - Mahesh at 80%. It is submitted
that the permanent disability suffered by Injured was 45% in
relation to his right lower limb and so it was submitted that the
functional disability be assessed at 40%. It is further submitted that
in case of Injured - Mofid Khan, permanent disability suffered is
21% in relation to his left lower limb and the Tribunal has assessed
the functional disability to be 10%. It is next submitted that the
Tribunal has erred in taking the notional income of Injured - Mofid
Khan on minimum wages of a non-matriculate. It is pointed out
that as per the second Schedule of the Motor Vehicles Act, the
notional income of a student has to be assessed at ₹15,000/- per
annum. It is also submitted on behalf of the appellant - Insurer that
the compensation under the non-pecuniary head is on the higher
side and it needs to be reduced.
6. On the contrary, learned counsel for the Injured persons
supports the impugned Award and submits that the compensation
assessed by the Tribunal is just and proper.
7. Upon hearing and on perusal of impugned Award and the
evidence on record, I find that Injured - Mahesh in his evidence
has not deposed as to what practical difficulties he is facing in life
due to injuries suffered by him in this accident. The disability
certificate has not been proved on record by any doctor. Injured-
Mahesh is a driver by profession and due to this accident, he can
no longer drive. He was earning ₹12,000/- per month. Minimum
wages of a skilled worker at the relevant time were ₹10,374/- per
month. Supreme Court in Raj Kumar versus Ajay Kumar and
Another, (2011) 1 SCC 343 has clarified that the functional
disability is not to be mechanically assessed on the basis of
permanent disability suffered by the Injured. In the facts and
circumstances of this case, I find that the Tribunal has erred in
assessing the functional disability at 80% as the Injured can earn by
doing other jobs. So the functional disability of Injured - Mahesh
reassessed at 40%.
8. In case of Injured - Mofid Khan, I find that the Tribunal has
rightly assessed the functional disability to be 10% but has erred in
taking the notional income of Injured- Mofid Khan on the
minimum wages payable to a non-matriculate. Hon'ble Supreme
Court in Master Mallikarjun versus Divisional Manager, The
National Insurance Co. Ltd. And Another, (2014) 14 SCC
396while dealing with the case of an Injured, aged 12 years has
declared that where the disability is 10% and above, composite
compensation on account of the disability suffered has to be
₹3,00,000/- apart from the medical expenses etc.
9. In case of Injured - Mahesh, the compensation on account of
disability suffered by him is reassessed as follows : -
₹12,289 PM x 12 x 15 x 40/100 = ₹8,84,808/-
The total compensation payable to Injured-Mahesh is as
under: -
Medical expenses ` 12,100/-
Special Diet & Conveyance & ` 66,000/-
Attendant
Loss of income during treatment ` 1,73,000/-
Loss of Earning Capacity ` 8,84,808/-
Total ` 11,35,908/-
10. In case of Injured- Mofid Khan, the compensation payable to
him is reassessed as under :-
Medical Expenses ` 4,100 /-
Composite Compensation on ` 3,00,000/-
account of Pain & Suffering,
Enjoyment of Life and Loss of
Amenities
Special Diet & Conveyance & ` 65,000/-
Attendant
Loss of Studies ` 10,000/-
Total ` 3,79,100/-
11. Consequentially, the compensation granted by the Tribunal
to Injured - Mahesh is reduced from ₹23,21,100/- to ₹11,35,908/-
and the compensation granted by the Tribunal to Injured - Mofid
Khan is reduced from ₹4,49,100/- to ₹3,79,100/-. In view of a three
Judge Bench decision of Supreme Court decision in Jagdish v.
Mohan and Others, (2018) 4 SCC 571, respondents/ Injured are
entitled to interest @ 9% per annum. Thus, the modified
compensation shall carry interest @ 9% per annum. The statutory
deposit alongwith the excess deposit, if any, be refunded to the
Insurer and thereafter, the compensation as per this judgment be
released to respondent - Injured in the manner already indicated in
the impugned Award.
12. While modifying the impugned Awards in the aforesaid
terms, these two appeals and the pending applications stand
disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 6, 2018
PB
