Rahul Jain v. M/S Bajaj Allianz General & Anr.

1. The brief facts of the case are that on 07.03.2010 at about 2 p.m. the appellant was standing at Rawat Auto Parts, Dilshad Garden for getting his motorcycle repaired. One Wagon R car bearing no.DL-7C-H-3026 which was being driven in a rash and negligent manner at a high speed came from Mrignaini Chowk, Dilshad Colony and hit the appellant. He was removed to the GTB hospital and then referred to AIIMS hospital and from AIIMS he was shifted to RML hospital. He suffered multiple fractures and 2014:DHC:2462 underwent several surgeries as his uro-genital system was badly damaged and he suffered 100% permanent disability with regard to his urinary tract system. He has also become impotent due to these injuries. Doctor has also opined that the nature of his injuries requires life-long follow up with Anmal Caliberating and Dilatations in the hospital even after his treatment. Doctor has also opined that due to erectile dysfunction on PIPE test tumuscouce moderate Rigidity nil, patient is not capable to intercourse. He needed three piece Penile implant for near normal physical (penile) rehabilitation and intercourse and the disability for organ system for erectile system was 100%. The petitioner at the relevant time was a young boy of 32 years, married and having one child and it is apparent that due to this disability he is incapable of having another child. He was working as Sales Development Manager in HDFC and drawing a salary of Rs. 19,135/- per month. As per the disability certificate his disability was assessed as 32 % locomotor disability.

2. Based on these facts, the learned Tribunal has awarded the compensation to the appellant under the heading of “Pain and Suffering” a sum of Rs.[1] lakh, “Loss of amenities”- Rs.50,000/and “Shortening of life span” - 25,000/-.

3. The appellant has challenged the said order on various grounds. However, during the arguments he has confined his argument alleging that learned Tribunal ought to have added loss of future prospect while calculating loss of future income.

4. Learned counsel for the insurance company has contended that there is no such contention in the appeal and it was also not raised before the learned Tribunal, therefore the same request cannot be considered by this court.

5. Although, the appellant has raised this issue in the appeal for the first time during the course of the argument, the question is whether his request should be rejected solely on the ground that the issue was not raised earlier. The issue relates to question of law determining the entitlement of the appellant. The legislation regarding grant of compensation to persons suffered disability in a vehicular accident is a welfare legislation, the approach of the court ought not to be rigid and if the injured is entitled to certain benefits under the welfare legislation, the same shall not be rejected solely on the ground that the same was not claimed earlier. The contention of the appellant is certainly based on the findings in Neerupam Mohan Mathur vs. New India Assurance Company (2013) 14 SCC 15 wherein three judges bench of the Apex Court has upheld the addition of 50% of the income towards future prospects while calculating the loss of future earning on account of permanent disability. The age of the injured was between 30 to 40 years and therefore 50% is to be added towards the loss of future income. The income of the appellant was assessed to Rs.10,125/by the ld. Tribunal and the same is not in dispute. Thus, the total income for the purpose of calculation of future loss is Rs.10,125 + 50% of Rs.10,125/- = 15187/-. Hence, the loss of income due to disability comes to Rs. 15187/- X 12 X 16 (multiplier) = Rs. 2915904/-.

5. Learned Tribunal on the basis of all the facts and circumstances of the case has reached to the conclusion that the whole body disability for the purpose of calculation of loss of income is 16% and I find no reason to differ with this finding. The loss of total income due to 16% disability comes to Rs. 2915904/-x16%= 466544.64 (Rounded of Rs.466,545/-).

6. The appellant has not disputed the grant of compensation under several heads. I, therefore, hold that he is entitled to the same compensation which has been awarded by the learned tribunal except that of under the head of „Loss of Income‟. The appellant is entitled to compensation as under:- Loss of income due to 16% disability Rs.4,66,545/- Conveyance Rs. 20,000/- Special Diet Rs. 15,000/- Attendant charges Rs. 48,000/- Medical Expenses Rs. 20,000/- AMS Penile Implant Rs.3,83,000/- Total Rs.9,52,545/-

7. The compensation is awarded to the petitioner with interest @ 7.[5] % per annum from the date of filing of the present petition. The amount shall be deposited within six weeks. In case of default, the petitioner shall be entitled to the interest @ Rs. 12% per annum till its realisation from the date of default.

8. The appeal is disposed of in the above terms.

DEEPA SHARMA, J MAY 08, 2014