SHIRIRAM GENERAL INSURANCE CO LTD. v. JYOTI

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/- 2019:DHC:3398

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 T[2] 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 PW[1] 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 PW[1] & PW[2], 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 PW[1] 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