Full Text
HIGH COURT OF DELHI
Date of Decision: 18th May, 2018
JUDGMENT
12 JAI PRAKASH..... Appellant Through: Mr. S.N. Parashar, Adv.
VERSUS
K SUNDARAM & ORS (UNITED INDIA INSURANCE CO LTD)..... Respondents Through: Mr. K.P. Toms and Mr. Anil S. Bisi, Advs. for R[2]. Mr. Shoumik Mazumdar, Adv. for R[3]. + MAC.APP. 757/2017 & CM No.30405/2017 & 6604/2018 13 ST MARYS CONVENT SR SEC SCHOOL..... Appellant Through: Mr. K.P. Toms and Mr. Anil S. Bisi, Advs.
VERSUS
JAI PRAKASH & ORS (UNITED INDIA INSURANCE CO LTD)..... Respondents Through: Mr. S.N. Parashar, Adv. Mr. Shoumik Mazumdar, Adv. for R[3]. CORAM: HON'BLE MR.
JUSTICE J.R. MIDHA JUDGMENT (ORAL)
1. The appellants have challenged the award of the Claims Tribunal whereby compensation of Rs.8,66,000/- is awarded to the claimant, Jai Prakash. 2018:DHC:3314
2. On 07th February, 2013 at about 03:10 P.M., the claimant Jai Prakash was going on his bicycle at Kheri Pul Chowk, Old Faridabad, Haryana when he was hit by a bus bearing No.HR 38N 2112 being driven by K. Sundaran. Jai Prakash suffered fracture of inferior pubic rami, fracture of both bones of right leg (Grade-III), fracture of bimalleolor (right), fracture of medial condyl left femur and fracture of lateral condyl tibia (left) which resulted in deformity of right leg, ankle, foot and muscle and tendons of bones were exposed for which he took the treatment from BKH Hospital, Faridabad and thereafter, from Safdarjung Hospital. He was admitted in Safdarjung Hospital on 07th February, 2013 where he underwent a surgery on 13th February, 2013 and was discharged on 21st February, 2013. The injuries suffered by the claimant resulted in 79% permanent disability relating to his right lower limb.
3. The Claims Tribunal awarded Rs.20,000/- towards medical treatment, Rs.10,000/- towards conveyance charges, Rs.10,000/- towards special diet, Rs.60,000/- towards pain and agony, Rs.1,60,000/- towards loss of income, Rs.5,66,000/- towards loss of earning capacity, Rs.20,000/- towards loss of amenities of life and Rs.20,000/- towards attendant charges. The total compensation awarded is Rs.8,66,000/.
4. Learned counsel for the claimant urged at the time of hearing that the compensation awarded by the Claims Tribunal is on a lower side. It is submitted that the non-pecuniary compensation awarded by the Claims Tribunal is grossly inadequate. It is further submitted that the Claims Tribunal has not taken future prospects into consideration for computing the loss of earning capacity. Learned counsel for the claimant further submits that the functional disability be enhanced from 50% to 79%.
5. Learned counsels for the owner, driver and insurance company submit that the compensation of Rs.1,60,000/- awarded under the head of loss of income is liable to be set aside.
6. The claimant Jai Prakash is present in Court and his condition has been seen. Considering the condition of the claimant, loss of functional disability is taken as 70%. The Claims Tribunal has not taken into consideration future prospects while computing the earning capacity. The future prospects of 25% are taken into consideration in terms of the principles laid down by the Supreme Court in National Insurance Co. Limited v. Pranay Sethi 2017 SCC Online SC 1270. Taking the income of the claimant as Rs.7,251/- per month, adding 25% towards future prospects, applying the multiplier of 13 and taking the functional disability as 70%, loss of earning capacity is assessed as Rs.9,89,761.5, rounded-off to Rs.9,90,000/-.
7. The Claims Tribunal has awarded Rs.1,60,000/- towards loss of income during treatment. This Court is of the view that Rs.9,90,000/awarded towards the loss of earning capacity would take care of the loss of income during treatment. The compensation of Rs.1,60,000/- towards loss of income is, therefore, set aside.
8. The Claims Tribunal awarded Rs.60,000/- towards pain and suffering and Rs.20,000/- towards loss of amenities of life, which are on a lower side. The Claims Tribunal has not awarded any compensation for disfiguration. The compensation towards loss of amenities of life is enhanced from Rs.20,000/- to Rs.1,00,000/-, the compensation towards pain and suffering is enhanced from Rs.60,000/- to Rs.1,00,000/- and Rs.1,00,000/- is awarded towards disfiguration. The claimant is entitled to a total compensation of Rs.13,50,000/- along with interest @ 9% per annum from the date of filing of the petition i.e. 12th July, 2013.
9. The offending vehicle was validly insured with United India Insurance Company Limited which is held liable to pay award amount to the claimant. United India Insurance Company Limited is directed to deposit the enhanced award amount with the Registrar General of this Court along with upto date interest within four weeks.
10. The Claims Tribunal has granted recovery rights to United India Insurance Company Limited to recover the award amount from the driver and owner of the offending vehicle. Learned counsel for the St. Mary’s Convent Sr. Sec. School, owner of offending vehicle submits that owner was ex-parte before the Claims Tribunal and, therefore, could not contest the recovery rights awarded to the United India Insurance Company Limited.
11. Learned counsel seeks permission to lead additional evidence before the Claims Tribunal. St. Mary’s Convent Sr. Sec. School is permitted to lead additional evidence before the Claims Tribunal. The issue of recovery rights is remanded back to the Claims Tribunal for fresh adjudication. The Claims Tribunal shall record the additional evidence of St. Mary’s Convent Sr. Sec. School and thereafter, afford an opportunity to United India Insurance Company Limited to rebut the same. The Claims Tribunal shall thereafter pass a fresh order on the issue of recovery rights.
12. List for recording of the additional evidence before the Claims Tribunal on 12th July, 2018.
13. Both the appeals are allowed. The award amount is enhanced from Rs.8,66,000/- to Rs.13,50,000/- along with interest @ 9% per annum from the date of institution of the claim petition i.e. 12th July, 2013 to be paid by United India Insurance Company Limited. However, the issue of recovery rights is remanded back to the Claims Tribunal. Pending applications are disposed of.
14. St. Mary’s Convent Sr. Sec. School has deposited the award amount with the Claims Tribunal. The Claims Tribunal shall retain the said amount in fixed deposit till further orders are passed.
15. List for disbursement of the enhanced award amount on 27th August,
2018. The claimant Jai Prakash shall remain present in Court along with the passbook of his savings bank account near the place of his residence as well as PAN card and Aadhaar card. The concerned bank is directed not to issue any cheque book or debit card to the claimant and if the same have already been issued, the bank is directed to cancel the same and make an endorsement on the passbook to this effect. The claimant shall produce the copy of this order to the concerned bank, whereupon the bank shall make an endorsement on the passbook of the claimant that no cheque book and/or debit card shall be issued to the claimant without the permission of this Court. However, the concerned bank shall permit the claimant to withdraw money from his savings bank account by means of a withdrawal form. The appellant shall produce the original passbook of his savings bank account with the necessary endorsement on the next date of hearing.
16. The record of the learned Trial Court be returned back forthwith.
17. Copy of this judgment be given dasti to counsels for the parties under the signatures of the Court Master. MAY 18, 2018 J.R.MIDHA, J. ak