Delhi High Court
Hdfc Ergo General Insurance Co Ltd vs Yogesh Singh And Ors. on 11 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 11, 2018
+ MAC. APP. 348/2013
HDFC ERGO GENERAL INSURANCE CO LTD .....Appellant
Through: Mr. Pankaj Gupta, Advocate for
Ms. Suman Bagga, Advocate
Versus
YOGESH SINGH AND ORS. .....Respondents
Through: Mr. Arun Yadav, Advocate for
respondent No.1
+ MAC. APP. 442/2013
YOGESH SINGH .....Appellant
Through: Mr. Arun Yadav, Advocate
Versus
AMAR SINGH & ORS. .....Respondents
Through: Mr. Pankaj Gupta, Advocate for
Ms. Suman Bagga, Advocate for
respondent-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 14th January, 2013 grants compensation of
`26,70,600/- with interest @ 9% per annum to injured-Yogesh, aged 23
years, on account of grievous injuries suffered by him in a vehicular
accident, which took place on 9th October, 2004.
2. In the above captioned first appeal, HDFC ERGO General
Insurance Co. Ltd. (hereinafter referred to as „Insurer‟) seeks reduction
in the quantum of compensation, whereas in the above captioned second
appeal, enhancement of compensation is sought by Yogesh (hereinafter
referred to as „Injured‟). Since both the appeals arise out of common
impugned judgment, 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 as epitomized in the claim petition are that
on 09.10.2004 at about 2.00 PM the petitioner was going from
Navsena Bhawan to Gulmohar Park, New Delhi and when he
reached near Netaji Nagar Bus stop on Africa Avenue Road, all
of a sudden a Honda City car bearing no. DL-2FCC-0060
being driven by its driver namely Amar Singh in rash and
negligent manner came and hit the claimant resultantly causing
grievous injuries on his person. The victim was removed from
the place of accident to Safdarjung Hospital for treatment."
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.PW-2/10), the Injured had
suffered permanent disability of 40% in relation to left lower limb. On the
strength of evidence recorded, impugned Award has been rendered. The
breakup of compensation awarded by Tribunal is as under:-
Loss of future earning `25,05,600/-
Travelling expenses, Special Diet ` 40,000/-
and other miscellaneous expenses
Pain and sufferings ` 50,000/-
Damages as to enjoyment of life and ` 75,000
disfigurement
Total ` 26,70,600/-
5. Learned counsel for Insurer assails impugned Award on the ground
that the Tribunal has erred in granting compensation under the head of
„loss of future earning‟ as there is no loss caused to the Injured due to the
injuries suffered by him in this accident. It is submitted by Insurer's
counsel that no compensation under the aforesaid head is payable as the
Injured continued in the same job and was later on promoted. It is
submitted that the Tribunal has erred in making addition of 100% towards
„future prospects‟ and so, it is submitted that the compensation granted by
the Tribunal needs to be suitably reduced.
6. On the other hand, learned counsel for Injured refutes the aforesaid
stand taken on behalf of Insurer and seeks enhancement by submitting
that the quantum of compensation awarded is inadequate. Another ground
to seek enhancement is that the salary of the Injured would have been
`65,000/- per month as on date, but due to the injuries sustained, Injured
has been thrown out of the job. Attention of this Court is drawn to
evidence of PW-1, i.e., the Employer of Injured, to point out that due to
injuries suffered in this accident, the employer has declared that the
Injured would not be re-engaged after completion of his tenure. It is
submitted by learned counsel for Injured that the compensation granted
under the „non-pecuniary heads‟ is on lower side and it needs to be
suitably enhanced.
7. Reliance is placed by learned counsel for Injured upon Supreme
Court's decision in Vimal Kanwar & Ors. v. Kishore Dan & Ors. AIR
2013 SC 3830 to submit that in case like instant one, 100% increase in
„future prospects‟ ought to be granted and the Tribunal has erred in taking
into consideration the differential of the income of the Injured. Reliance
is also placed upon Supreme Court's decision in Raj Kumar v. Ajay
Kumar and Another, (2011) 1 SCC 343 to submit that the functional
disability ought not to be assessed in a mechanical manner.
8. Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that in the face of evidence of
Employer of Injured (PW-1), it cannot be said that there is no „loss of
future earning‟ suffered by the Injured. The Tribunal has made addition
of 100% on the differential income, i.e., the income drawn on the day of
the accident and the income he would have drawn upon being promoted.
On the day of accident, income of Injured was `22,209/- per month and
Injured was aged 23 years. Recently, Supreme Court in Anant Son of
Sidheshwar Dukre v. Pratap Son of Zhamnnappa Lamzane & Another,
2018 (10) SCALE 130 while dealing with the case of an injured, has not
made any addition towards „future prospects‟. Reliance placed upon
Supreme Court's decision in Vimal Kanwar (supra) is of no avail as the
said decision was rendered in a case of fatal accident, whereas the instant
case is of injury.
9. During the course of hearing, it was brought to the notice of this
Court that due to the injuries suffered by the Injured in this accident, he
was not re-engaged. So, in the facts and circumstances of this case, it is
deemed appropriate to assess the functional disability of the Injured at
40%. The multiplier of 18 adopted by the Tribunal is appropriate.
Accordingly, the „loss of earning capacity‟ is reassessed as under: -
`22,209/- X 12 X 40/100 X 18= `19,18,857.60/-,
rounded off to `19,18,858/-
10. So far as compensation granted under the „non-pecuniary heads‟ is
concerned, I find that the compensation of `50,000/- granted under the
head of „pain and suffering‟ is wholly inadequate. In the facts and
circumstances of this case, compensation of `3 lacs under the head of
„pain and suffering‟ is granted. Compensation of `75,000/- granted by the
Tribunal under the head of „loss of enjoyment of life and disfigurement‟ is
pathetically low. It is also enhanced to `3 lacs. Composite compensation
of `40,000/- granted by the Tribunal under the head of „Travelling
expenses, Special Diet and other miscellaneous expenses‟ appears to be
just and reasonable.
11. In view of aforesaid, the compensation payable to Injured is
reassessed as under: -
Loss of earning capacity `19,18,858/-
Travelling expenses, Special Diet ` 40,000/-
and other miscellaneous expenses
Pain and sufferings ` 3,00,000/-
Damages as to enjoyment of life and ` 3,00,000/-
disfigurement
Total ` 25,58,858/-
12. Consequentially, the compensation amount payable to the Injured
stands reduced from `26,70,600/- to `25,58,858/-. The modified
compensation be released forthwith as per this judgment in the manner as
already indicated in the impugned Award. Statutory deposit alongwith
excess amount, if any, be refunded to Insurer.
13. While modifying the impugned Award in the aforesaid terms, the
above captioned appeals are disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 11, 2018
s
