Delhi High Court
Shriram General Insurance Co. ... vs Jyoti & Ors. on 16 July, 2019
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 16.07.2019
+ MAC.APP. 218/2019 & CM Nos. 6069 & 17450/2019
SHIRIRAM GENERAL INSURANCE CO LTD. ..... Appellant
Through: Mr. Amit Kumar Mahajan, Advocate.
Versus
JYOTI & ORS. ..... Respondents
Through: Mr. S. N. Parashar, Advocate for
Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. The appellant has impugned the award of compensation of
Rs.7,93,000/- to respondent no.1, who has suffered a severe head injury in a
motor vehicular accident. The learned Tribunal has awarded the following
compensation:-
1. Medical Expenses Rs. 4,29,550/-
2. Loss of income Rs. 1,13,100/-
3. Pain and suffering Rs. 1,00,000/-
4. Loss of general amenities and Rs. 1,00,000/-
enjoyment of life
5. Conveyance, special diet & Rs. 50,000/-
attendant charges
Total Rs. 7,92,650/-
Rounded off to Rs. 7,93,000/-
2. The appellant does not dispute the medical expenses of Rs. 4,29,550/-,
but contends that the compensation on the other heads is on the higher side.
It is argued that there was no loss of income as the injured, who being a
second year student of an under-graduate course, had not produced any
evidence that she was earning any monies by offering tuitions for
fees/remuneration. Furthermore, it is argued that while calculating the loss
of income, the learned Tribunal has erred in taking the minimum wages
applicable to a graduate at the relevant time, though the injured had not yet
completed her graduation. In this regard, the learned Tribunal has reasoned
as under:-
"27. It is pertinent to note that the petitioner has relied upon
her medical treatment record and the medical bills in order to
prove the nature of injuries sustained by her and the period till
which her treatment continued. The said documents are Ex.
PW1/1 (colly) and Mark A. The discharge summary(which is
part of Ex. PW1/1 colly) of Fortis Hospital in respect of
petitioner/injured would reveal that she remained admitted in
the said hospital from 16.04.2014 till 10.05.2014. She is shown
to have sustained head injury with left fronto temporal
contusions. Said record would further reveal that even after
her discharge from the said hospital, she continued to receive
her medical treatment from Fortis Hospital on OPD basis
from time to time and got her NCCT(head) also conducted on
the medical advise given to her by treating doctor namely Dr.
Anil Kansal. Her MRI SCR Head report dated 20.06.14 of
Spectrum Imaging and Diagnostic Centre, would reveal that
there were abnormal signal areas in the bilateral basifrontal
lobes with areas of T2 shortening on GRE sequence. Similar
signal abnormality noted in the right middle frontal gyrus and
left occipital parietal lobe. There was no evidence of any
significant mass effect/mid line shift. Said record would further
show that another NCCT Head was done in Fortis Hospital on
15.09.14, which revealed areas on gliotic changes in the
bilateral frontal and left temporo- occipital lobes. Another
NCCT Head was done on 03.01.15, which revealed 111
defined hypodense areas in the cortical subcortical loction in
bilateral basifrontal, anterior frontal, left temporal and in the
left parieto-occipital region in parasagittal location-old gliotic
areas. It is also penitent to note that at the time of discharge of
injured from Fortis Hospital, she was advised physiotherapy,
medicines as well as to attend the hospital for her follow-up
treatment. She is shown to have visited the hospital for her
review and for follow-up treatment from time to time and her
treatment as per entire treatment record (Ex. PW1/1 colly),
continued for a period of about 1 year or so. This is apart from
tine fact that relevant part of testimony of PW1 and her
medical treatment record has gone unchallenged and
uncontroverted from the side of respondents. Considering the
nature of injuries sustained by the petitioner as discussed
above and in view of ocular testimonies of PW1 & PW2, it is
presumed that she would not have been able to work at all
atleast for a period of 10 months or so.
28. Apart from the bald statement made by PW1 Ms. Jyoti
that she was earning Rs. 12,000/- to Rs. 15,000/-per month, no
definite evidence whatsoever has been brought on record to
prove her monthly income at the time of accident in question.
Counsel for injured fairly conceded during the course of
arguments that for want of any cogent evidence being led
regarding monthly income of injured, her notional income may
be taken as per Minimum Wages Act applicable during the
relevant period."
3. The Court does not find any fault with the aforesaid reasoning that the
claimant, who had a good academic record, would have completed her
under-graduate course and would ordinarily be employable, at least at the
minimum wages applicable to a graduate, and therefore, it was rightly
considered by the learned Tribunal for computing loss of income. However,
it was never proven that the claimant was offering tuitions and earning
approximately Rs.12,000/- to Rs.15,000/- per month. Had the claimant
actually been doing so, she would have produced details of the number of
students whom she was coaching, their names or the tuition batches, timings
and other details alongwith the monies being paid by them for each session
or on weekly basis. But no such information was furnished by her. Mere
averments that she was earning the claimed amount, would not be sufficient
proof of the earnings. The award of compensation of Rs.1,13,000/- on
account of loss of income is not substantiated and is, therefore, set aside.
4. However, the learned counsel for the respondent-claimant submits
that the compensation of Rs.1,00,000/- each awarded qua (i) "pain and
suffering" and "loss of general amenities and enjoyment of life" is on the
lesser side. Especially since (i) it involves a young under-graduate girl, (ii)
who is in the best years of her life, when the expectations and excitement
from everyday life is very high and (iii) when it is time for the youth to
spend happy and meaningful time with their friends both inside and outside
college, she was confined to a hospital bed or otherwise recuperating for
almost a year, from a grievous head injury. The Court is in agreement with
the aforesaid contention and accordingly enhances the compensation for (i)
pain and suffering and (ii) loss of general amenities and enjoyment of life by
Rs.50,000/- each, i.e. from Rs.1,00,000/- to Rs.1,50,000/- each.
5. In view of the above, the total compensation awarded by the learned
Tribunal would be reduced by Rs.13,000/- and returned to the Insurance
Company and the remaining amount shall be paid to the beneficiaries of the
Award, in terms of the scheme of disbursement specified therein.
6. The appeal, alongwith pending application, stands disposed-off in the
above terms.
NAJMI WAZIRI, J.
JULY 16, 2019
sb
