HDFC ERGO GENERAL INSURANCE CO LTD v. RAJ KUMAR

1. Impugned Award of 27th May, 2015 grants compensation of `15,12,081/- with interest @ 9% per annum to injured-Raj Kumar, a Potter, aged 22 years, on account of grievous injuries suffered by him in a vehicular accident, which took place on 24th May, 2010.

2. In the above captioned first appeal, HDFC ERGO General Insurance Co Ltd (hereinafter referred to as „Insurer‟) seeks recovery 2018:DHC:5773 rights against owner of the vehicle in question, whereas in the above captioned second appeal, enhancement of compensation is sought by Raj Kumar (hereinafter referred to as Injured). Since both the appeals arise out of common impugned Award, therefore, with the consent of learned counsel for the parties, both the appeals have been heard together and are being decided by this common judgment.

3. The factual background of this case, as noticed in the impugned Award, is as under:- “Brief facts of the present case is that on 24/05/2010 at about 8.30 hours when the petitioner alongwith his cousin Sh. Phool Singh was going to take fruits form the side of Kali Basti, Uttam Nagar and when the petitioner reached on Road No.37, near LIG Flats More, then the offending vehicle i.e. i-10 Car bearing No. DL-3C-BQ-0162 which was being driven by its driver/respondent No.1 in rash and negligent manner hit the petitioner. Resultantly, the petitioner sustained grievous injuries. In total, the petitioner in the prayer of the petition have claimed Rs.25,00,000/- as compensation on account of the injuries sustained by injured in the accident.”

4. To render the impugned Award, Motor Accident Claims Tribunal (hereinafter referred to as „the Tribunal‟) has relied upon evidence of Injured and as per Disability Certificate (Ex.PW7/A), Injured had suffered permanent disability of 75% in relation to his whole body and mental disability has been assessed to be 50%, whereas overall permanent disability has been assessed to be 83% in relation to his whole body. However, the Tribunal has assessed the functional disability to be 60%. On the strength of evidence recorded, impugned Award has been rendered. The income of Injured has been assessed on minimum wages payable to an unskilled worker and addition of 50% towards „future prospects‟ has been made and thus, „loss of earning capacity‟ has been assessed at `10,25,395/-. The breakup of compensation awarded to the Injured by the Tribunal is as under:-

┌──────────────────────────────────────────────────────────────────┐
│        Sl.    Head of compensation              Compensation     │
│        No.                                        granted by     │
│                                                    this Court    │
├──────────────────────────────────────────────────────────────────┤
│        1.     Reimbursement       of    medical   Rs.23,350/-    │
│               expenses                                           │
│        2.     Pain and suffering                 Rs.1,00,000/-   │
│        3.     Conveyance & special diet           Rs.30,000/-    │
│        4.     Attendant charges                   Rs.20,000/-    │
│        5.     Loss of income during treatment     Rs.63,336/-    │
│               period                                             │
│        6.     Compensation on account of Rs.10,25,395/-          │
│               disability                                         │
│        7.     Loss of amenities of life           Rs.50,000/-    │
│        8.     Loss of disfigurement and loss of Rs.1,00,000/-    │
│               marriage prospects                                 │
│        9.     For inconvenience, hardship,        Rs.50,000/-    │
│               discomfort,        disappointment,                 │
│               frustration and mental stress in                   │
│               life                                               │
│        10.    Compensation towards future         Rs.50,000/-    │
│               treatment expenses                                 │
│                                       Total      `15,12,081/-    │
└──────────────────────────────────────────────────────────────────┘

11. Consequentially, the compensation awarded stands enhanced from `15,12,081/- to `15,44,326/-. The enhanced compensation be deposited by Insurer with the Tribunal within six weeks from today. The modified compensation shall carry interest @ 9% per annum. The awarded compensation be disbursed in the manner as indicated in the impugned Award. Statutory deposit, if any, be refunded to Insurer. So far as grant of recovery rights to Insurer is concerned, I find that there is unchallenged evidence of Deepak Saini, who has deposed that he was accompanying his son, who was holding Learner's Driving Licence at the time of the accident, and this witness-Deepak Saini was holding a valid driving licence. In the face of unrebutted evidence of Deepak Saini and his son- Kunal Saini, I find no justification to grant recovery rights to Insurer. Hence. recovery rights as claimed by the Insurer are denied.

12. While modifying impugned Award in aforesaid terms, the above captioned two appeals are accordingly disposed of.

JUDGE SEPTEMBER 07, 2018 s