IFFCO TOKIO GENERAL INSURANCE COMPANY LTD v. MONU KUMAR MISHRA

1. These appeals impugn the award of compensation dated 13.11.2018 passed by the learned MACT in Suit No.4852/16 on the ground that the arrears of salary have been erroneously included while computing the salary amount of the injured. The learned Tribunal has considered the salary of the claimant as Rs. 12,151/- per month. However, the examination of the said 2019:DHC:5208 Salary Certificate (at page 42 of the paperbook) shows that arrears of Basic, HRA, Special Allowance and Personal Pay being Rs. 565/-, Rs. 403/-, Rs. 139/- and Rs. 529/-, respectively need to be considered in the salary for the month of November 2015. The actual salary was Rs. 10,140/- as shown in the Salary Certificate for the month of December 2015. (43 of the paperbook).

2. The contention is correct, as there was no payment of arrears in the month of December 2015. It has payments only for Basic Pay, HRA, Special Allowance and Personal Pay, whereas clearly the Salary Certificate for the month of November 2015 had arrears as mentioned hereinabove. In the circumstances, the Salary Certificate for the month of December, 2015 shall be considered which shows the salary as Rs. 10,140/-.

3. The learned counsel for the appellant submits that the injured was already married as has been stated by his father, PW-2. Albeit, he was estranged from his spouse. In his cross-examination, PW-2 has stated, inter alia, as under: “….. My son is married. (vol. My daughter in law left after one month from the accident of my son)….”

4. In view of the above, the grant of Rs. 3,00,000/- towards „loss of marriage prospects‟ is erroneous and the same is set aside.

5. The claimant, however, has filed a cross appeal seeking enhancement of the awarded amount on the ground that compensation towards “loss of future prospects” have not been granted because the injured has been rendered disabled. He has suffered 87% physical disability on account of neurological disorder.

6. The Court finds no reason to disturb the finding apropos the 100% disability because of the nature and extent of the disability suffered by the claimant. In view of the dicta of the Supreme Court in Parminder Singh vs. New India Assurance Co. Ltd. & Ors., 2019 SCC OnLine SC 802, the injured would be entitled to 50% addition towards „loss of future prospects‟. Additionally, the injured was barely 24 years of age at the time of the unfortunate accident i.e. he was in the prime of his life and he had a spouse to take care of. All his aspirations and dreams would have been crushed because of his 100% functional disability. Furthermore, because of the 87% physical disability, he is obviously not able to move about by himself and instead is blighted by neurological disorder. Considering all these hardships, he has rightly been treated as 100% physically and functionally disabled. That being the position, the disappointment is not confined only to the injured but also to his parents.

7. The MRI report of the injured reads as under: “STUDY PROTOCOLS: SPIN ECHO T2W SAGITTAL AND FAST SPIN ECHO T1/T[2] HIGH RESOLUTION AXIAL IMAGES OF BRAIN WERE OBTAINED ON A DEDICATED PHASED ARRAY HEAD COIL USING 3T HIGH GRADIENT MRI SYSTEM AND CORRELATED WITH FLAIR CORONAL IMAGES. FINDINGS: Follow-up case of severe head injury Dec. 2015. There is significant dilation of the entire ventricular system seen with heterogeneous faint T[2] hypointense signals seen in the 3rd, 4th ventricle and aqueduct (? CSF flow). Maximum diameter of 3rd ventricle is about 12.[6] mm with prominent opened up temporal horns of bilateral later ventricles. The corpus callosum is severely thinned out and bowed upwards. A small 8.[5] x 5 mm T[2] hyperintense focus that is hypo on T1/FLAIR and shows magnetic susceptibility is seen in the region of posterior body of corpus callosum. Ill-defined linear T[2] and FLAIR hypo-intensities showing magnetic susceptibility on GRE images are seen in the parasagittal region of bilateral frontal lobes. Multiple punctuate foci of blooming on GRE that are bright on phase images are seen randomly scattered in the bilateral fronto-parieto-temporal lobes, bilateral basal ganglia and right thalamus. Sella and parasellar region is normal. The region of brainstem appears normal. Bilateral cerebellar hemispheres appear normal. Prominent cisterna magna is noted. Note is made of bilateral mastoiditis (R>L).”

8. The extent of the damage to the cranium of the injured and the resultant disability to his mental faculties is extremely grave and calls for revisiting the compensation awarded towards i) “pain and suffering”, ii) “mental and physical shock”, iii) “loss of amenities of life” and iv) “disfigurement” which have been awarded at Rs. 50,000/-, Rs. 50,000/-, Rs. 1,00,000/- and Rs. 1,00,000/-. He has been granted Rs. 1,00,000/- towards „loss of expectation of life span‟ as well on account of the disability. The Court is of the view that the nature and extent of the injury and its consequent affect on the injured calls for a more meaningful compensation. Keeping in view the dicta of the Supreme Court in Parminder Singh (supra), a consolidated amount of Rs. 10,00,000/- is awarded on the aforesaid four heads (i to iv).

9. The injured would require assistance round the clock. Ordinarily, such assistance would best be provided by his family members but the family members cannot remain captive to his needs all the time. The provision for attendant would be required to be made and he has to be compensated permanently.

10. In the circumstances, the minimum wages applicable to an unskilled worker shall be paid for an attendant. Minimum wages are revised every six months. The minimum wage in Delhi at the time of the accident was Rs. 9,178/- and the minimum wage applicable to an unskilled worker in Delhi is now about Rs. 13,896/- and the same will keep on increasing with the passage of time. The need of the injured is for provision of an attendant throughout his life span so the requisite money should be made available to him on a monthly basis. Mr. Sameer Nandwani, the learned counsel who is a panel counsel for many insurance companies, submits that ordinarily specialised agencies provide special case services on a monthly basis and the current charges are in the range of Rs. 15,000/- to Rs. 16,000/-.

11. In the circumstances, the Court is of the view that, at least, Rs. 16,000/- be made available to the claimant for his attendant. Accordingly, let the insurance company deposit an amount of Rs. 30,00,000/- in a bank account from which the interest amount shall be transferred directly into the bank account of the claimant on a monthly basis. The insurance company shall have a lien over the corpus and the proportionate remaining interest, should any such amount remain, to be returned to them after the lifetime of the claimant.

12. The appellant has been granted nursing assistance of Rs. 50,000/-. Considering the need of an attendant throughout the said period during the period of his hospitalisation and recovery, the same is enhanced to Rs. 1,50,000/-. Apropos, the expenditure on conveyance, Rs. 50,000/- has been awarded as conveyance charges. The injured is stated to be bed-ridden and even if he is assumed to be transportable in wheelchair, he would require a vehicle specially equipped for such purpose. Mr. Nandwani, the learned counsel, submits that ordinarily such a vehicle charges in the range of Rs. 900/- for a distance of seven to ten kilometres. The learned counsel for the insurance company does not dispute the same. In the circumstances, the quantum is enhanced to Rs. 1,50,000/-. The other amounts granted remain undisturbed.

13. Accordingly, the enhanced amount payable to the claimants is as under: S.No. Particulars Amount

1. Loss of future earnings [Rs. 10,140/- (salary) x 12 (months) x 18 (multiplier) x 150/100 (50% loss of future prospects)] Rs. 32,85,360/-

2. Compensation towards pain and suffering, mental and physical shock, loss of amenities of life and disfigurement Rs. 10,00,000/-