Delhi High Court
Hdfc Ergo General Insurance Co Ltd vs Raj Kumar & Ors on 7 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 07, 2018
+ MAC.APP. 588/2015
HDFC ERGO GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. A.K. Soni, Advocate
versus
RAJ KUMAR & ORS .....Respondents
Through: Mr.Manish Kumar and Ms. Rama
Yadav, Advocates for respondent-
Injured
+ MAC.APP. 10/2017
RAJ KUMAR ..... Appellant
Through: Mr.Manish Kumar and Ms. Rama
Yadav, Advocates
versus
HDFC ERGO GENERAL INSURANCE CO LTD & ORS
.....Respondents
Through: Mr. A.K. Soni, Advocate for
respondent-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 27th May, 2015 grants compensation of
`15,12,081/- with interest @ 9% per annum to injured-Raj Kumar, a
Potter, aged 22 years, on account of grievous injuries suffered by him in a
vehicular accident, which took place on 24th May, 2010.
2. In the above captioned first appeal, HDFC ERGO General
Insurance Co Ltd (hereinafter referred to as „Insurer‟) seeks recovery
rights against owner of the vehicle in question, whereas in the above
captioned second appeal, enhancement of compensation is sought by Raj
Kumar (hereinafter referred to as 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:-
"Brief facts of the present case is that on 24/05/2010
at about 8.30 hours when the petitioner alongwith his
cousin Sh. Phool Singh was going to take fruits form the
side of Kali Basti, Uttam Nagar and when the petitioner
reached on Road No.37, near LIG Flats More, then the
offending vehicle i.e. i-10 Car bearing No. DL-3C-BQ-0162
which was being driven by its driver/respondent No.1 in
rash and negligent manner hit the petitioner. Resultantly,
the petitioner sustained grievous injuries. In total, the
petitioner in the prayer of the petition have claimed
Rs.25,00,000/- as compensation on account of the injuries
sustained by injured in the accident."
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.PW7/A), Injured had suffered
permanent disability of 75% in relation to his whole body and mental
disability has been assessed to be 50%, whereas overall permanent
disability has been assessed to be 83% in relation to his whole body.
However, the Tribunal has assessed the functional disability to be 60%.
On the strength of evidence recorded, impugned Award has been
rendered. The income of Injured has been assessed on minimum wages
payable to an unskilled worker and addition of 50% towards „future
prospects‟ has been made and thus, „loss of earning capacity‟ has been
assessed at `10,25,395/-. The breakup of compensation awarded to the
Injured by the Tribunal is as under:-
Sl. Head of compensation Compensation
No. granted by
this Court
1. Reimbursement of medical Rs.23,350/-
expenses
2. Pain and suffering Rs.1,00,000/-
3. Conveyance & special diet Rs.30,000/-
4. Attendant charges Rs.20,000/-
5. Loss of income during treatment Rs.63,336/-
period
6. Compensation on account of Rs.10,25,395/-
disability
7. Loss of amenities of life Rs.50,000/-
8. Loss of disfigurement and loss of Rs.1,00,000/-
marriage prospects
9. For inconvenience, hardship, Rs.50,000/-
discomfort, disappointment,
frustration and mental stress in
life
10. Compensation towards future Rs.50,000/-
treatment expenses
Total `15,12,081/-
5. Learned counsel for Insurer assails impugned Award on the ground
that since the income of Injured has been assessed on minimum wages,
therefore, addition towards „future prospects‟ has to be 40%. It is also
submitted by Insurer's counsel that compensation granted by the
Tribunal under „non-pecuniary head' is exorbitant and it needs to be
suitably reduced. Learned counsel for Insurer also seeks recovery rights
on the ground that the insured vehicle was being driven by a driver, who
was holding a Learner's Driving Licence and he was not accompanied by
a qualified driver/trainer and since Rule 3 of the Central Motor Vehicles
Rules, 1989 has been violated, therefore, recovery rights ought to be
granted to Insurer.
6. On the other hand, learned counsel for Injured refutes the stand
taken on behalf of Insurer and submits that the quantum of compensation
granted by the Tribunal is inadequate and it needs to be substantially
enhanced. It is submitted that „future medical expenses‟ of `50,000/-
granted by the Tribunal is wholly inadequate and it needs to be enhanced.
7. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that in view of Supreme Court's Constitution Bench
decision in National Insurance Company Ltd. Vs. Pranay Sethi & Ors.,
(2017) 16 SCC 680, addition towards „future prospects‟ has to be 40%.
The Tribunal has erred in making addition of 50% towards „future
prospects‟. Accordingly, „loss of earning capacity‟ is reassessed as
under:-
`5,278/- X 12 X 18 X 140 X 60 = `9,57,640/-
100 100
8. So far as compensation granted by the Tribunal under the „non-
pecuniary heads‟ is concerned, I find that compensation of `1 lac granted
by the Tribunal under the head of „pain and suffering‟ is appropriate. The
Tribunal has granted composite compensation of `1 lac under the head of
„loss of disfigurement‟ and „loss of marriage prospects‟, which appears to
be on lower side. It is deemed appropriate to split this head into two
heads. Accordingly, compensation of `1 lac each is granted under the
heads of „loss of disfigurement‟ and „loss of marriage prospects‟. The
compensation of `50,000/- granted by the Tribunal under the head of
„loss of amenities of life‟ is found to be inadequate and is accordingly
enhanced to `1 lac. The compensation of `50,000/- granted by the
Tribunal under the head of „mental stress, etc.,‟ is merged in the head of
„loss of amenities of life‟. So, now the compensation under the head of
„loss of amenities of life‟ comes to `1,50,000/-, as the Injured had
suffered mental disability to the extent of 50%.
9. So far as „future medical expenses‟ are concerned, there is no basis
to assess it and so, compensation of `50,000/- granted by the Tribunal
under this head is disallowed with the alternative that the Injured shall be
referred by a Panel Doctor of Insurer to a Doctor, who has expertise in
this field, and in view of evidence of Dr. Anil Kumar Garg (PW-6),
estimate regarding the cost of „surgery to be undergone by the Injured'
shall be obtained and the cost of such operation/surgery shall be borne by
the Insurer, who shall directly remit the cost so incurred for further
surgery etc. to the concerned hospital.
10. In light of the aforesaid, compensation payable to Injured is
reassessed as under: -
Loss of earning capacity `9,57,640/-
Medical expenses `23,350/-
Pain and suffering `1,00,000/-
Conveyance & special diet `30,000/-
Attendant charges `20,000/-
Loss of income during treatment `63,336/-
period
Loss of amenities of life `1,50,000/-
Loss of marriage prospects `1,00,000/-
Loss due to disfigurement `1,00,000/-
Total `15,44,326/-
11. Consequentially, the compensation awarded stands enhanced from
`15,12,081/- to `15,44,326/-. The enhanced compensation be deposited
by Insurer with the Tribunal within six weeks from today. The modified
compensation shall carry interest @ 9% per annum. The awarded
compensation be disbursed in the manner as indicated in the impugned
Award. Statutory deposit, if any, be refunded to Insurer. So far as grant of
recovery rights to Insurer is concerned, I find that there is unchallenged
evidence of Deepak Saini, who has deposed that he was accompanying
his son, who was holding Learner's Driving Licence at the time of the
accident, and this witness-Deepak Saini was holding a valid driving
licence. In the face of unrebutted evidence of Deepak Saini and his son-
Kunal Saini, I find no justification to grant recovery rights to Insurer.
Hence. recovery rights as claimed by the Insurer are denied.
12. While modifying impugned Award in aforesaid terms, the above
captioned two appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 07, 2018
s
