Delhi High Court
Shikha Gupta vs Iffco Tokio General Insurance Co. ... on 14 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 14, 2018
+ MAC.APP. 345/2013
SHIKHA GUPTA ..... Appellant
Through: Mr. Nitin Yadav, Advocate
versus
IFFCO TOKIO GENERAL INSURANCE CO. LTD. & ORS.
..... Respondent
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 16th April, 2012 grants compensation of
`1,09,281/- with interest @ 9% per annum to Shikha Gupta (hereinafter
referred to as „Injured‟), aged 22 years, on account of grievous injuries
suffered by her in a vehicular accident, which took place on 2nd August,
2006. The facts, as noticed in the impugned Award, are as under:-
Claimant has stated in her claim petition that on
02.08.06 at about 4.45 p.m. she alongwith her other
colleagues was going from her office to her residence in
the offending vehicle/Toyota Qualis bearing registration
no. HR-38-FT-1650. It is stated that the offending vehicle
was being driven by respondent no. 1 at a high speed, in a
rash and negligent manner and in total contravention of the
traffic rules and regulations. It is stated that all the
passengers seated in the vehicle had asked respondent no.
1 to drive the said vehicle carefully and slowly but he kept
on driving the offending vehicle at a very high speed and
in a rash and negligent manner. It is stated that when the
offending vehicle reached on the fly over at Sector-1,
Dwarka, New Delhi, respondent no. 1 hit one motorcycle
and thereafter struck the offending vehicle against the
boundary of the fly over. It is stated that all the passengers
including petitioner seated in the Toyota Qualis received
multiple grievous injuries.
2. To render the impugned Award, learned Motor Accident Claims
Tribunal (hereinafter referred to as "the Tribunal") has relied upon
evidence of Injured and as per evidence of Injured, she had suffered
fracture sacrum (vertebrae in hip region), fracture coccygodynia,
fracture nasal bone, injury let elbow, left knee and other multiple
grievous injuries on whole parts of her body. Although there is no
medical evidence on record, but as per deposition of Injured, she
remained admitted in hospital from 3rd to 8th August, 2006 and thereafter,
on various different dates. It is the deposition of Injured that due to
injuries sustained by her in the accident, her urinary bladder was badly
damaged which led to urine infection resulting in fever from January,
2007 to March, 2007 for which she again remained as an indoor patient in
Maharaja Agarsen Hospital from 5th to 14th January, 2007. As per
deposition of the Injured, she cannot sit for more than 15 to 20 minutes
and cannot walk properly or perform her routine work on her own and
she requires an attendant for 24 hours for her daily routine work. Injured
asserts that in her evidence that on the day of the accident, she was
working as Process Associate in EMR Technology Ventures Pvt. Ltd. and
was drawing salary of `15,170/- per month. It is stated that due to injuries
suffered by petitioner, she could not attend her duties and was forced to
resign in January, 2007. As per deposition of the Injured, she was
unmarried on the day of accident and due to the injuries sustained in this
accident, she has to remain on medication throughout her life. Injured
further deposed that had she not met with this accident, she would have
been promoted to the post of Manager.
3. The breakup of compensation awarded by the Tribunal to the
Injured is as under:-
Head of Compensation Amount
Loss due to leave availed ` 17,000/-
Loss of Marriage Prospects ` 20,000/-
Pain & Agony ` 40,000/-
Special Diet ` 10,000/-
Conveyance ` 10,000/-
Cost of medicine & cost of ` 12,281/-
treatment
Total ` 1,09,281/-
4. Learned counsel for appellant-Injured seeks enhancement of
compensation awarded, on the ground that due to injuries sustained in this
accident, she was forced to resign from her job in January, 2007. It is
submitted that the Tribunal has erred in not assessing the „loss of earning
capacity‟ of Injured. It is submitted that the compensation granted under
the „non-pecuniary heads‟ is inadequate and it needs to be suitably
enhanced.
5. On the contrary, learned counsel for respondent-Insurer supports
the impugned Award and maintains that the compensation granted is just
and proper. It is pointed out that the Injured was not forced to resign
from her job and there is no record of Injured suffering any permanent
disability and so, the compensation granted is adequate and this appeal
deserves to be dismissed.
6. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that the evidence of Injured is unrebutted. It has come in
the evidence of Injured that due to injuries sustained in this accident, she
has become permanently disabled as she cannot sit for more than 15 to 20
minutes and cannot walk properly. She can neither perform her routine
work on her own nor she can drive a vehicle and she cannot even travel
for a long distance. It has come in the evidence of Injured that she needs
an attendant for 24 hours for her daily routine work and doctor has
advised her to take rich and high protein diet and to get her check-up
done from the hospital regularly. The medical papers of Injured on record
reveals that she was examined by Ortho Handicap Board of Dr. R.M.L.
Hospital, New Delhi in October, 2008. It is unfortunate that the Injured
has not obtained any Disability Certificate from the Competent Authority,
but in the face of the injuries suffered by the Injured and her medical
papers on record, it can be safely concluded that she is suffering from
Coccydynia. It is matter of record that Injured had to resign from her
service due to the injuries suffered by her in this accident as she could not
sit for long due to fractured coccygodynia.
7. In the peculiar facts and circumstances of this case, the functional
disability of Injured is assessed at 50%. There is unrebutted evidence of
Injured that her medical condition has not improved even after prolong
treatment. Copies of medical papers have been duly proved on record.
When this accident had taken place, the Injured was earning `13,528/-
per month and was receiving an incentive of `3,500/- per month. Thus,
her total income was `17,028/- per month, which is rounded off to
`17,030/- per month. The Injured was aged 22 years on the day of the
accident and so, the applicable multiplier would be of 18. Accordingly,
the „loss of earning capacity‟ of Injured is assessed as under: -
`17,030/- X 12 X 18 X 50/100 = `18,39,240/-
8. So far as compensation granted to Injured by the Tribunal under
the „non-pecuniary heads‟ is concerned, I find it to be wholly inadequate.
Hence, compensation of `40,000/- granted by the Tribunal under the head
of „pain and suffering‟ is enhanced to `1,00,000/- and compensation of
`20,000/- under the head of „loss of marriage prospects‟ is also enhanced
to `1,00,000/-. However, compensation granted under other heads is
found to be reasonable and is thus maintained. In light of aforesaid, total
compensation payable to the Injured is reassessed as under: -
Loss of Earning Capacity `18,39,240/-
Loss due to leave availed `17,000/-
Loss of Marriage Prospects `1,00,000/-
Pain & Agony `1,00,000/-
Special Diet `10,000/-
Conveyance `10,000/-
Medical Expenses `12,281/-
Total `20,88,521/-
9. Consequentially, the compensation amount payable to the Injured
stands enhanced from `1,09,281/- to `20,88,521/-, which shall carry
interest @ 9% per annum. The modified compensation alongwith interest
be deposited by Insurer with the Tribunal within six weeks from today
and thereafter, it be disbursed in the manner already indicated in the
impugned Award.
10. While modifying the impugned Award in aforesaid terms, this
appeal stands disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 14, 2018
s
