Delhi High Court
Icici Lombard General Insurance ... vs Gaurav Swaroop & Ors. on 25 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 25, 2018
(i) + MAC.APP. 154/2017
ICICI LOMBARD GENERAL INSURANCE CO LTD
..... Appellant
Through: Mr. Pankaj Gupta, Advocate
Versus
GAURAV SWAROOP & ORS. ..... Respondents
Through: Mr. Kunwerpal Singh, Advocate
(ii) + MAC.APP. 500/2018
GAURAV SWAROOP ..... Appellant
Through: Mr. Kunwerpal Singh, Advocate
Versus
SUNIL KUMAR & ORS. (ICICI LOMBARD GENERAL
INSURANCE CO LTD) ..... Respondents
Through: Mr. Pankaj Gupta, Advocate
(iii) + MAC.APP. 161/2017
ICICI LOMBARD GENERAL INSURANCE CO LTD
..... Appellant
Through: Mr. Pankaj Gupta, Advocate
Versus
NADEEM CHAUDHRY & ORS. ..... Respondents
Through: Mr. Kunwerpal Singh, Advocate
MAC.APP. 161/2017 Page 1 of 11
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
(iv) + MAC.APP. 752/2018
NADEEM CHAUDHRY ..... Appellant
Through: Mr. Kunwerpal Singh, Advocate
Versus
SUNIL KUMAR & ORS. ( ICICI LOMBARD GENERAL
INSURANCE CO LTD ) ..... Respondents
Through: Mr. Pankaj Gupta, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned four appeals relate to a vehicular accident,
which took place on 23rd February, 2013 in which a motorcycle driver
and two pillion riders were injured. Vide common impugned Award of
3rd November, 2016, compensation has been granted to Injured- Gaurav
and Nadeem by the Motor Accident Claims Tribunal (henceforth referred
to as the "Tribunal").
2. With the consent of learned counsel for the parties, the above
captioned four appeals have been heard together and are being decided
together by this common judgment.
3. In the above captioned first appeal, the challenge is to the
impugned Award vide which compensation of ₹5,92,561/- with interest at
the rate of 12% p.a. has been granted to Injured- Gaurav on account of
grievous injuries sustained by him in this vehicular accident. In the
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
above captioned third appeal, the impugned Award under challenge
grants compensation of ₹27,54,114/- with interest at the rate of 12% p.a.
to Injured- Nadeem on account of the injuries sustained by him in this
vehicular accident. In the above captioned second and fourth appeals,
enhancement of compensation is sought by Injured- Gaurav and Nadeem.
4. The factual background of these appeals as noticed in the
impugned Awards is as under :-
"The facts common to both the petitions are like this.
On 23.02.2013, at 1:00 p.m. petitioner Nadeem Chaudhary
along with his friend Gaurav was going to his school situated
at Pratap Vihar,Vijay Nagar, Ghaziabad, U.P. on motorcycle
and reached at Bijli Ghar, Vijay Nagar, Ghaziabad, U.P..
They were talking to their friend Abhinav on the road side.
One car bearing no. HR-51AT-0469 being driven by
respondent no.1 came from wrong side in a high speed and in
a rash and negligent manner and hit against motorcycle as a
result all of them fell down and sustained injuries. They were
removed to Ganesh Hospital, Ghaziabad. FIR no.113/13
Sr.No.198 dt. 23.02.2013 u/s 279/338/427 IPC PS, Vijay
Nagar, Ghaziabad, was recorded against respondent no.1. The
accident has taken place due to the rash and negligent driving
of respondent no.1."
5. To render the impugned Award, learned Tribunal has relied upon
evidence of Injured persons and other evidence on record. As per
Disability Certificate (Ex. PW10/J), Injured- Gaurav had suffered
temporary disability of 36% in relation to right lower limb. Whereas, as
per Disability Certificate EX.PW8/1, Injured-Nadeem had suffered 80%
permanent disability in relation to right lower limb. The Tribunal has
granted lump-sum compensation of ₹50,000/- on account of "temporary
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
disability" suffered by him. On the strength of evidence recorded,
impugned Award has been rendered. The breakup of compensation
awarded by Tribunal to Injured-Gaurav is as under:-
1. Compensation towards pain and sufferings ` 80,000/-
2. Compensation towards medical bills ` 1,59,561/-
3. Loss of studies during the period of treatment ` 1,00,000/-
4. Attendant charges for 8 months ` 28,000/-
5. Special diet and conveyance ` 25,000/-
6. Compensation on account of temporary ` 50,000/-
disability
7. Compensation towards future medical treatment ` 1,50,000/-
Total ` 5,92,561/-
The breakup of compensation awarded by Tribunal to Injured-
Nadeem is as under:-
1. Compensation towards pain and sufferings `1,20,000/-
2. Compensation towards medical bills `3,52,614/-
3. Loss of earning capacity due to disability `17,28,000/-
4. Loss of studies `1,00,000/-
5. Attendant charges for five months `17,500/-
6. Special diet and conveyance `25,000/-
7. Compensation towards dressing charges `6,000/-
8. Compensation towards loss of amenities and `80,000/-
enjoyment
9. Compensation towards disfigurement `1,00,000/-
10. Compensation towards loss of marriage `1,00,000/-
prospects
11. Compensation towards future expenses on `1,25,000/-
artificial limb
Total `27,54,114/-
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
6. Learned counsel for ICICI Lombard General Insurance Company
Limited (henceforth referred to as the "Insurer") assails impugned
Award on the ground of contributory negligence. It is submitted that
motor cycle driver- Nadeem was a minor and he could not legally drive
the vehicle. It is further submitted there were two pillion riders on the
motor cycle in question, which is prohibited in law. It is next submitted
that the functional disability of Injured-Nadeem is infact 40% and the
Tribunal has erred in taking it to be 80%. It is also submitted that Injured-
Nadeem was a student and the Tribunal has erred in taking his income at
`10,000/- per month (in lump-sum), whereas his notional income of
`15,000/- per annum ought to have been taken. Counsel for Insurer
submits that compensation of `1,25,000/- granted under the head of
"future expenses on artificial limb" is without any basis, as no doctor has
deposed regarding the future course of treatment for Injured- Nadeem. It
is also submitted that the interest of 12% per annum payable on the
awarded compensation is exorbitant and it ought to be 9% per annum.
Lastly, it is submitted by counsel for Insurer that in the case of Injured-
Nadeem, compensation granted under the non-pecuniary heads deserves
to be brought in tune with Supreme Court's Constitution Bench decision
in National Insurance Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16
SCC 680.
7. So far as compensation granted to Injured-Gaurav is concerned, it
is submitted by counsel for Insurer that the impugned Award is
challenged on the ground of contributory negligence and also that the
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
interest of 12% per annum payable on the awarded compensation is
exorbitant and it ought to be 9% per annum. It is next submitted by
counsel for Insurer that compensation of `1,50,000/- granted under the
head of "future medical treatment" is without any basis, as no doctor has
deposed regarding the future course of treatment for Injured-Gaurav. So,
it is submitted that the compensation awarded to Gaurav deserves to be
suitably reduced.
8. On the contrary, learned counsel for respondents-Injured refutes
the aforesaid stand taken on behalf of Insurer and submits that the
quantum of compensation granted by the Tribunal is inadequate.
Enhancement of compensation is sought in the case of Injured-Nadeem
by submitting that "functional disability" of Injured- Nadeem deserves to
be taken at 100%, as he has lost his livelihood due to the injuries
sustained in this accident and he has no future. It is submitted that the
cost of obtaining artificial limb by Injured- Nadeem is more than two lacs
but the Tribunal has erred in granting `1,25,000/- for "future expenses of
artificial limb". It is also submitted that the Tribunal has erred in not
making any addition towards "future prospects" while assessing the loss
of earning capacity in the case of Injured-Nadeem.
9. On behalf of Injured- Gaurav, it is submitted by learned counsel
that compensation of `50,000/- granted on account of temporary
disability suffered by Injured-Gaurav is inadequate and it deserves to be
enhanced. It is pointed out that as per Certificate (Ex. PW10/H), the
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
"future medical expenses" are of `2,30,970/- and the Tribunal has erred
in granting compensation of `1,50,000/- only.
10. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that motorcycle driver- Nadeem was
a minor and was not legally competent to drive a motor vehicle. Whether
there were two pillion riders or one, is not of significance, as the aspect of
motorcycle driver being a minor or of there being two pillion riders on
the motorcycle, cannot by itself justify finding of contributory
negligence. The manner in which this accident took place, can be
gathered from the evidence of Injured persons and the Site Plan (Ex.
PW1/9) of the place of accident. On scrutiny of aforesaid evidence, I find
that negligence was of driver of the insured vehicle and there is no
justification to conclude that the accident in question had taken place due
to contributory negligence of the Injured. Such a view is being taken in
view of a recent Supreme Court decision in Sri Dinesh Kumar.J. @
Dinesh J Vs. National Insurance Co. Ltd. & Ors. (2018) 1 SCC 750.
11. On the aspect of disability of Injured-Nadeem, in the face of
evidence of Dr. Apoorva Aggarwal (PW-7), it cannot be said that the
"functional disability" of Injured-Nadeem was 40% or 100%. In the
considered opinion of this Court, the Tribunal has rightly assessed the
"functional disability" of Injured-Nadeem to be 80% in the light of
Disability Certificate (EX.PW8/1), which discloses that due to the
accident in question, right lower limb of Injured-Nadeem was amputated.
The Tribunal has also rightly taken the notional income of Injured-
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
Nadeem at `10,000/- per month while granting compensation under the
head of "loss of earning capacity", as Supreme Court in V.Mekala Vs. M.
Malathi & Anr. (2014) 11 SCC 178, while dealing with the case of an
injured-student, aged 16 years and having disability of 70%, has assessed
his notional income at `10,000/- per month.
12. As regards compensation granted to Injured-Nadeem under the
head of "future medical expenses" is concerned, the Tribunal has granted
compensation of `1,25,000/- as cost of obtaining artificial limb, while
ignoring the evidence of Prosthetist and Orthotist (PW-9), who has given
an estimate of `2,15,000/- (in terms of Ex. PW1/1) as the cost of artificial
limb. It is not the case of Injured-Nadeem that he has obtained an
artificial limb. There is no reliable estimate on record to conclude as to
what would be the cost of artificial limb, and so, the facts and
circumstances of this case, it is deemed appropriate not to grant any
compensation under this head. Instead thereof, Insurer is directed to get
the Injured-Nadeem examined from Safdarjung Hospital and obtain the
estimate of cost of artificial limb from there or any other Agency, which
is duly recognized by the Government and to ensure that cost of artificial
limb is directly remitted into the bank account of the said
hospital/Agency, to facilitate providing of artificial limb to Injured-
Nadeem. Compensation granted by the Tribunal under the „non-pecuniary
heads‟ and „medical bills‟ etc. is found to be just and proper and is,
therefore, maintained. Pertinently, Supreme Court in Anant son of
Sidheshwar Dukre Vs. Pratap son of Zhamnnappa Lamzane & Anr. 2018
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
(10) SCALE 130, while dealing with the case of an Injured has not made
any addition towards „future prospects‟ and so, no addition towards
"future prospects" in the case of Injured- Nadeem is to be made. No case
of enhancement of compensation is made out. Accordingly, the
compensation payable to injured-Nadeem is reassessed as under: -
1. Compensation towards pain and sufferings `1,20,000/-
2. Compensation towards medical bills `3,52,614/-
3. Loss of earning capacity due to disability `17,28,000/-
4. Loss of studies `1,00,000/-
5. Attendant charges for five months `17,500/-
6. Special diet and conveyance `25,000/-
7. Compensation towards dressing charges `6,000/-
8. Compensation towards loss of amenities and `80,000/-
enjoyment
9. Compensation towards disfigurement `1,00,000/-
10. Compensation towards loss of marriage `1,00,000/-
prospects
Total `26,29,114/-
13. So far as compensation granted to Injured-Gaurav is concerned, I
find that the Tribunal has granted compensation of `1,50,000/- under the
head "compensation towards future medical treatment" on the basis of
estimate Ex. PW10/H, which reveals that "future medical expenses" are
to the tune of `2,30,970/-. Instead of granting the "future medical
expenses" to Injured-Gaurav, it is deemed appropriate to direct Insurer to
get Injured-Gaurav examined from a hospital on their panel and to ensure
that the cost of "future medical treatment" is directly remitted to the
concerned hospital. The compensation of `80,000/- granted by the
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
Tribunal under the head of "pain and sufferings" is found to be on the
lower side and is accordingly enhanced to `1,50,000/-. However, the
compensation granted to Injured-Gaurav under the other heads is found
to be just and proper and thus, no case for enhancement of compensation
is made out. Accordingly, the compensation granted to Injured- Gaurav is
reassessed as under:-
1. Compensation towards pain and sufferings `1,50,000/-
2. Compensation towards medical bills `1,59,561/-
3. Loss of studies during the period of treatment `1,00,000/-
4. Attendant charges for 8 months `28,000/-
5. Special diet and conveyance `25,000/-
6. Compensation on account of temporary `50,000/-
disability
Total `5,12,561/-
14. Consequentially, the compensation awarded by the Tribunal to
Injured-Nadeem stands reduced from `27,54,114/- to `26,29,114/- and
compensation awarded by the Tribunal to Injured-Gaurav is also reduced
from `5,92,561/- to `5,12,561/-. As far as rate of interest granted by the
Tribunal is concerned, I find that a Three Judge Bench of Supreme Court
in a recent decision of Jagdish v. Mohan and Others, (2018) 4 SCC 571
has granted interest @ 9% per annum on the awarded compensation and
so, the modified compensation shall carry interest @9% per annum. The
awarded compensation be released to the Injured persons in the manner
as indicated in the impugned Award. Statutory deposit alongwith excess
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
deposit, if any, be refunded to Insurer. Needless to say that expenses for
"future medical treatment" of Injured- Nadeem and Gaurav shall be
borne by Insurer in the manner as indicated above.
15. The above captioned four appeals are accordingly disposed of
while modifying the impugned Award in the aforesaid terms.
(SUNIL GAUR)
JUDGE
SEPTEMBER 25, 2018
r
MAC.APP. 752/2018
MAC.APP. 154/2017
MAC.APP. 500/2018
