Delhi High Court
Santosh vs Icici Lombard Genral Insurace Co ... on 14 September, 2018
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 14th September, 2018
+ MAC.APP. 108/2018
SANTOSH ..... Appellant
Through: Mr.Umesh Kumar, Advocate
versus
ICICI LOMBARD GENRAL INSURACE CO LTD ..... Respondent
Through: Mr.Pankaj Gupta, Advocate for
Ms.Suman Bagga, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the award of the Claims Tribunal
whereby compensation of Rs.4,18,509/- has been awarded to the appellant.
The appellant is seeking enhancement of the compensation amount.
2. On 23rd October, 2015 at about 09:30 PM, the appellant was returning
to his home from work on his motorcycle and he was hit by a car bearing
No.DL- 5CJ-0004 near Power House, T-Point, W Block, Okhla Industrial
Area, New Delhi which resulted in grievous injuries to the appellant.
3. The appellant suffered crush injury to his right leg with fracture of
both bones of right foreleg and fracture in femur bone. The appellant was
taken to AIIMS Trauma Centre on 23rd October, 2015 where he underwent
surgery for debridement, fasciotomy, external fixation of femur and tibia.
The appellant was discharged on 13th November, 2015. The appellant was
again hospitalized in AIIMS Trauma Centre from 25th January, 2016 to 08th
February, 2016 where he underwent second surgery for ORIF with 10 holes
LCP with BG on 31st January, 2016. The appellant was again hospitalized on
23rd February, 2016 and underwent third surgery for split skin grafting under
local anesthesia. The appellant was hospitalized for the fourth time from 10 th
June, 2016 to 17th June, 2016 and was diagnosed with right tibia fracture,
delayed union with plate in situ and infection. He underwent fourth surgery
for implant removal and debridement of right leg on 11th June, 2016. The
appellant was hospitalized for the fifth time on 07th September, 2016 with
the complaint of high grade fever from three days and swelling in right
lower limb from three days and was diagnosed with cellulitis right lower
limb.
4. The appellant suffered permanent disability and was examined by the
Medical Board of Safdarjung Hospital which opined that appellant had
suffered total permanent physical impairment of 47% in relation to his right
lower limb.
5. The Claims Tribunal awarded Rs.16,000/- for medical expenses,
Rs.40,000/- for pain and suffering, Rs.15,000/- for attendant charges, special
diet and conveyance, Rs.4,05,300/- for loss of future earning capacity/future
income, Rs.25,000/- for loss of amenities and enjoyment of life, Rs.20,000/-
for disfigurement and Rs.36,712/- for loss of income during treatment. The
total compensation awarded by the Claims Tribunal is computed as
Rs.5,58,012/-. The Claims Tribunal held the appellant guilty of contributory
negligence to the extent of 25% and reduced the compensation amount to
Rs.4,18,509/-.
6. Learned counsel for the appellant urged at the time of the hearing that
the Claims Tribunal has awarded grossly inadequate compensation towards
pain and suffering, loss of amenities of life and disfiguration. Reliance is
placed on Master Mallikarjun v. Divisional Manager, The National
Insurance Company Ltd., 2013 ACJ 2445 in which the Supreme Court held
the non-pecuniary compensation towards pain and suffering and loss of
amenities of life to be Rs.4,00,000/- in respect of 30% to 60% permanent
disability.
7. Learned counsel for the appellant further urged at the time of hearing
that the Claims Tribunal took the functional disability of the appellant as
23% which is grossly on a lower side. It is submitted that the functional
disability of the appellant be taken as 100%.
8. The appellant is present in Court and his condition has been seen. This
Court is satisfied that the compensation awarded by the Claims Tribunal is
on a lower side. The Claims Tribunal has taken the functional disability of
the appellant as 23% which is on a grossly lower side. In the facts and
circumstances of this case, the functional disability of the appellant is
enhanced from 23% to 47% and the loss of earning capacity is enhanced
from Rs.4,05,300/- to Rs.8,28,223/-. The compensation towards pain and
suffering is enhanced from Rs.40,000/- to Rs.2,00,000/-, compensation for
loss of amenities of life is enhanced from Rs.25,000/- to Rs.2,00,000/-,
compensation of disfigurement is enhanced from Rs.20,000/- to
Rs.1,70,000/-. The total compensation is computed as 14,65,935/-.
9. The deduction of 25% towards contributory negligence is upheld.
Deducting 25% towards contributory negligence, the total compensation is
computed as Rs.10,99,451.25/-, rounded off to Rs.11,00,000/-.
10. The appeal is allowed and compensation is enhanced from
Rs.5,58,012/- to Rs.11,00,000/- along with interest at the rate of 9% per
annum with effect from the date of filing of DAR i.e. 23rd May, 2016. The
Claims Tribunal excluded the interest period from 25th November, 2016 to
26th May, 2017 which is set aside.
11. The enhanced award amount be deposited by the respondent with the
Registrar General of this Court within four weeks.
12. The appellant shall remain present in Court on the next date of hearing
along with the passbook of his savings bank account near the place of his
residence as well as PAN card and Aadhaar card. The concerned bank of the
appellant is directed not to issue any cheque book or debit card to appellant
and if the same have already been issued, the bank is directed to cancel the
same and make an endorsement on his passbooks to this effect. The
appellant shall produce the copy of this judgment to the concerned bank,
whereupon the bank shall make an endorsement on the passbook of
appellant that no cheque book and/or debit card shall be issued to appellant
without the permission of this Court. However, the concerned bank shall
permit the appellant to withdraw money from his savings bank account by
means of a withdrawal form. The appellant shall produce the original
passbook of his savings bank account with the necessary endorsement on the
next date of hearing.
13. List for disbursement of the compensation amount on 16 th November,
2018.
14. Copy of this judgment be given dasti to counsels for the parties under
signatures of the Court Master.
SEPTEMBER 14, 2018 J.R.MIDHA, J.
ds
