Full Text
Date of Decision: 25th November, 2024
RELIANCE GENERAL INSURANCE CO LTD .....Appellant
Through: Mr. A.K. Soni, Advocate.
Through: Mr. S.N. Parashar, Advocate for R-l.
JUDGMENT
1. Appeal under Section 173 of Motor Vehicle Act, 1988 has been filed By the Insurance Company/ Appellant against the Award dated 21.09.2019 whereby Respondent No.1/Claimant has been granted compensation in the sum of Rs.62,70,484/- and interest at the rate of 9% per annum on account of permanent disability of 62.40%.
2. The grounds of challenge are:
(i) that the Claimant who was a student of First year,
(ii) permanent Disability of 62% has been wrongly taken as functional disability of 70% in relation to the whole body despite the fact that he has been able to continue with his studies; (iii) 40% has been wrongly granted to him for future prospects, and
(iv) that an exorbitant interest at the rate of 9% per annum has been granted.
3. The learned counsel on behalf of the Respondent has countered the arguments on the ground that even though the Claimant had taken admission in MBBS in the year 2011, but on account od disability suffered by him, he still continues to be in the 2nd year. Moreover, the doctor has been examined who has in detail explained the extent of disability which is not only physical but also neurological. The learned Tribunal has given the detailed reasons for calculating the compensation. There is no infirmity and the appeal is liable to be dismissed.
4. Submissions Heard.
5. The Respondent No.1, Sh. Dhirender Gautam met with an accident on 24.05.2013 at about 12 midnight at K.G.Marg, Firoz Shah Road Red light, New Delhi when the motorcycle on which he was travelling as a pillion rider, was hit by the offending vehicle/car bearing Registration No.DL-3CBX-0700 which was being driven by Lal Kumar and owned by Sh. Amit Kumar. The vehicle was duly insured with the Insurance Company/Appellant. FIR No.86/2013 under Section 279/337 IPC Police Station Parliament Street was registered.
6. The DAR was filed before the Tribunal and the Petition under Section 166 of the Motor Vehicle Act, 1988 was subsequently filed for compensation by the injured.
7. The learned Tribunal by its Award dated 21.09.2019 granted total compensation in the sum of Rs.62,70,484/- along with interest at the rate of 9% per annum.
8. The main grievance of the Insurance Company is that even though the injured was a student of first year MBBS, his income has been assessed as Rs.25,000/- per month and though his Permanent Disability was 62%, it has been taken at 70% despite the fact that he has been able to continue his studies.
9. Admittedly, Petitioner was a student of first year MBBS at the time when he met with an accident and was not having any actual earnings. Therefore his notional income would have to be determined to ascertain the Future Loss of Earnings and Loss of Future Prospects which he has suffered on account of the injuries and disability.
10. PW-4, Sh. Sanjeev Khurana produced the Salary Slip Ex.PW- 4/2 to indicate the salary of a doctor at around the relevant time of the accident, was Rs.68,392/-. The learned Tribunal observed that since the injured was in the first year of Maulana Azad Medical College, one of the most prestigious Institute in medical field and was having bright prospects and may take 5-6 years to get the degree and sometime to find a Government job, assessed his notional income as around Rs.25,000/- per month. Rs.8240/- was deducted towards the Annual Tax liability and the annual earnings of the petitioner was calculated as Rs.2,91,760/-. This calculation of the notional loss of income per annum is fully justified and explained and does not warrant any interference.
11. The age of the injured at the time of accident was around 23 years and the multiplier of 18 has also been rightly adopted by the Tribunal.
12. The next aspect is the functional disability suffered by the injured. PW-6, Dr.P.N.Pandey had proved the first temporary disability Certificate dated 05.08.2015 Ex.PW6/1 wherein he deposed that in the road accident Petitioner had suffered severe head injuries and was treated on medical management. The injured was stated to have suffered Post Traumatic Stress Disorder (PTSD) with spasticity of the limbs with diminution of his cognitive function and was having problem in running, balancing while turning right or left and walking. He further deposed that Petitioner was unable to register, retain and recall events which were happening in day-to-day and in his professional life. The Petitioner also was having defect in attention and concentration and decreased tendency to learn new things and was likely to face problem in surgical skills and long standing and that he needed medical treatment and rehabilitation of the mental and physical disability.
13. The Petitioner was examined by the Medical Board of Lok Nayak Hospital on the directions of the Tribunal who gave the Certificate dated 23.10.2017 Ex. PW7/A certifying the percentage of disability as 58.89% in respect of both lower limbs which was permanent in nature.
14. PW-7, Dr. Vineet Dabas who was a member of the First Medical Board as well as of the Second Medical Board gave the Report Ex.PW-6/1 and 7/A. While deposing that permanent disability has been assessed as 58.89% in relation to both the lower limbs, he clarified in his cross-examination that no percentage of disability of patient due to head injuries was given separately by Dr. P.N.Pandey, the Member of the Board. Moreover, during the Second Disability examination of Petitioner, the Neurosurgeon had given 50% disability from his perspective and locomotor disability had been given as 20% and the overall disability was assessed at 58.89% which was not in respect of the whole body.
15. The injured was again re-examined by the Larger Board consisting of five doctors who certified the percentage of permanent disability in relation to his whole body as 62.40% by the Certificate dated 16.04.2018 Ex.PW-8/A.
16. PW-8, Dr. Ajay Bahl who gave the final Disability report Ex.PW-8/A stated that the patient was having many neuropsychiatric, cognitive and orthopaedic problems and his overall disability was assessed as 62.40%. He also stated that because of locomotor disability in upper limb, Petitioner would have difficulty in use of upper extremity, skilled hand function and his finer hand movements will be impaired. In regard to his lower limb, he would have difficulty in balancing, climbing stairs and running which was a part of the normal function and daily routine. He also deposed that all the four limbs of the Petitioner were spastic (rigid) and thus he would not be able to lead a normal life in comparison to his counterparts. He also clarified in his cross examination that Petitioner can do his day to day routine work and by regular physiotherapy he can maintain the present status of the body. However, the percentage of disability would not decrease and may increase with passage of time as the limbs will become more spastic.
17. PW-9, Dr. P.N.Pandey (was also examined as PW-6) also reiterated in his cross examination that a disability in upper and lower limbs of the Petitioner was due to head injury. He corroborated that he will be able to do his day to day work but would not be able to do brisk walk, run, jump and climb the stairs. He, however, deposed that despite such disability the Petitioner may still be able to complete his MBBS course and may even get a Government job under the disability quota or work as a Private Physician, but he was not able to say the duration within which the course would be completed by the Petitioner.
18. In the light of the medical reports and the testimony of the Doctors and other oral and documentary evidence the learned Tribunal referred to the judgment of Raj Kumar vs. Ajay Kumar & Anr, (2011) 1 SCC 343, and assessed the functional disability of the Petitioner at 70%.
19. It has come on record that even though he had joined MBBS course in 2011, he is still struggling to complete his course. The functional disability as 70% has been rightly assessed by the learned Tribunal and does not warrant any interference.
20. For the same reasons, considering the Functional Disability of 70% of the whole body and the young age of the Injured, future prospects have also been rightly granted to the Injured.
21. The last ground taken on behalf of the Insurance Company is that an exorbitant interest at the rate of 9% per annum has been granted. However, considering that it is an accident of 2011, it cannot be said that the rate of interest is exorbitant; it also does not warrant any interference.
22. In view of the aforesaid discussion, there is no interference needed in the well reasoned order of the Tribunal. The statutory amount deposited by the insurance Company, be returned in accordance with Law.
23. Appeal is hereby dismissed.
JUDGE NOVEMBER 25, 2024