Ashkaran Ojha v. Shivam Kumar & Ors(L & T General Insurance Co Ltd )

J U D G M E N T (oral)

¶1The present Appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the Appellant-Injured to seek enhancement of the compensation granted in the sum of Rs.5,23,614/- along with interest @ 9% per annum, on account of injuries suffered by him in the road accident on 15.02.2016.

¶2The grounds for seeking enhancement of compensation are:-

(i) That the appellant has not been granted compensation for Loss of Income for the period he remained under treatment from 15.02.2016 till 07.03.2017;

(ii) That the attendant charges have been granted for three months @10,000/- per month, despite the receipts of payment of Rs.12,000/- per month for the period of six months to Rajesh Sharma;

(iii) That the Functional Disability has been assessed at 21%, which should have been taken at least 30%, as the appellant was working as LIC Agent, which involves field duty;

(iv) That the compensation awarded under the Non Pecuniary Heads is required to be enhanced; and

(v) That no compensation has been granted for Loss of Amenities of Life, Disfiguration and such other heads.

¶3Learned counsel appearing on behalf of respondent No.2 submits that the Attendant Charges have rightly been assessed by the learned Tribunal considering that there was no cogent evidence of any payment

made to Rajesh Sharma, the alleged Attendant. Also, the appellant was working as LIC Agent and there is nothing on record to show that he was unable to do his work continuously and therefore, functional disability has rightly been assessed by the learned Tribunal. Learned counsel also submits that the compensation granted under the Non-Pecuniary Heads is just and proper and calls for no interference.

¶4Learned counsel appearing for respondent No.3 has also made submissions on similar lines, as has been made by learned counsel for respondent No.2.

¶5Submissions heard and record perused.

¶6Briefly stated, on 15.02.2016, the Appellant/Injured was coming to his house at Sant Nagar, Burari on his two wheeler scooter via Nirankari Samagan Road. At about 01:00 P.M., when he reached at Nirankair Samagam Road, a vehicle i.e., Hundai I-10 Car bearing No. DL 3C BR 3441 being driven by one Shivam Kumar, Respondent No. 1 herein, at a high speed, came from the wrong side of the road and after overtaking a car, it hit the scooter of the Appellant/Injured forcibly, because of which Appellant/Injured fell and suffered multiple injuries.

¶7The FIR No. 213/2016 under S.279/337 of the IPC was registered Police Station Mukherjee Nagar, Delhi. After due investigations the Chargesheet was filed before the concerned learned Metropolitan Magistrate.

¶8The Detailed Accident Report was filed before the learned Claim Tribunal which granted compensation in the sum of Rs. 4,88,000/- along with interest @ 9% per annum vide Award dated 22.05.2018, which was

subsequently modified and enhanced to Rs. 6,11,000/- along with interest @ 9% per annum vide modified Award dated 02.06.2018.

¶9By way of present Appeal, the Appellant/Injured has sought enhancement of the compensation granted vide revised Award dated

02.06.2018. Loss of Income: -

¶10The first ground for seeking enhancement of the compensation is that the Appellant/Injured has not been granted compensation for Loss of Income for the period he remained under treatment from 15.02.2016 till

07.03.2017. The Appellant/Injured was working as an LIC Agent and was drawing a salary of Rs. 2,50,645/- per annum. After the accident on

15.02.2016, he remained under treatment till 07.03.2017.

¶11The Appellant himself produced proved the receipts of the payment to his attendant Shri Rajesh Sharma, Ex. PW1/39 to 47, which certified that in addition to taking day-to-day care of the Appellant/Injured, he was also taking care of his LIC work, like collecting premiums from the Policy Holder, to go to the Office of LIC, to deposit KYCs and also to get the LIC receipts and again to return the LIC Policy Receipts to the Policy Holder etc. From these receipts on which the reliance has been placed by the Appellant/Injured himself, it is evident that though he had suffered injuries, but his work of being an LIC Agent continued and he had, in fact, employed Shri Rajesh Sharma, Attendant, who was assisting him regularly in his LIC work.

¶12Because of the injuries suffered by him, he may have had been unable to resume his job as an LIC Agent for about three months in all

and, therefore, suffered Loss of Income but no loss of income has been granted by the learned Claim Tribunal.

¶13The learned Claim Tribunal had made an assessment of the income of the Appellant/Injured on the basis of DAR as Rs. 2,50,645/- per annum.

¶14Looking at the medical documents and the testimony of the Appellant/Injured, the Appellant/Injured is granted Loss of Income for three months in the sum of Rs. 2,50,645/-x 1/12 X 3 = Rs. 62,661.25 rounded of to Rs. 62,670/-. Attendant Charges: -

¶15The second ground of challenge to the impugned Award is that the Attendant Charges for the period of three months have been granted @ Rs. 10,000/- per month, whereas the same should have been granted in the sum of Rs. 12,000/- per month.

¶16The Appellant/Injured in his testimony had deposed that he had engaged Shri Rajesh Sharma as an Attendant for a period of 8 months and paid him Rs. 12,000/- per month as salary. The Appellant/Injured has proved the receipts of payment, Ex. PW1/39 to 47. A suggestion was given to the Appellant/Injured in his cross-examination that no such payment made by him to Shri Rajesh Sharma, Attendant, and the receipts are forged and fabricated.

¶17The Discharge Summary of Sushruta Trauma Centre, Ex.PW1/1 reflected that the Appellant/Injured was admitted in the Hospital from

15.02.2016 to 18.02.2016 i.e. for three days. The Appellant/Injured had suffered dislocation of hip joint. After treatment, at the time of discharge,

he was advised to take medication.

¶18Further OPD Cards of the Appellant/Injured reflect that he was advised bed rest. He, thereafter, got admitted again in Sushruta Trauma Centre from 08.08.2016 to 13.08.2016 i.e. for six days, and post-treatment, he was advised various precautions and medicines to be continued by him. As per the OPD Card dated 19.08.2016, it was noted that the Appellant/Injured's sutures healed well. However, as per the OPD Card dated 27.09.2016, he was recommended complete rest and to avoid walking.

¶19From the medical records of the Appellant/Injured, it can reasonably be held that he would have required an Attendant from February, 2016 till about September, 2016 i.e. for about 8 months.

¶20The Appellant/Injured had proved the receipts of the payment, Ex. PW1/39 to 47, which had been given by him to Shri Rajesh Sharma which stated that because of the accident, the Appellant/Injured suffered injuries and he was taking care of his day-to-day requirements, including giving him bath, taking hospital, administering medicines, etc.

¶21Considering the aforesaid facts, there is no reason to disbelieve that Rs. 12,000/-per month was being paid to the Attendant, Shri Rajesh Sharma, for a period of 8 months. Accordingly, the compensation towards the Attendant Charges is hereby enhanced from Rs. 30,000/-to Rs. 96,000/-(Rs. 12,000/-per month x 8 months = Rs. 96,000/-). Functional Disability: -

¶22The third ground of challenge to the impugned Award is that the Appellant/Injured had suffered permanent disability of 41% of his right

lower limb, but the same has been assessed as Functional Disability of 21%.

¶23It is submitted that Appellant/Injured being an LIC Agent, his work involved field duty which he is not able to do on account of his physical disability. The functional disability of the Appellant/Injured should have been taken as at least 30%.

¶24While as per the Permanent Disability Certificate, he has suffered permanent disability of 41% of the right lower limb, but his nature of work is that of an LIC Agent. Pertinently, the Appellant/Injured himself has relied upon the Receipts, Ex. PW1/39 to 47, wherein Shri Rajesh Sharma has certified that in addition to taking day-to-day care of the Appellant/Injured, he was also taking care of his LIC work, like collecting premiums from the Policy Holder, to go to the Office of LIC, to deposit KYCs and also to get the LIC receipts and again to return the LIC Policy Receipts to the Policy Holder etc. From these receipts on which the reliance has been placed by the Appellant/Injured himself, it is evident that though he had suffered injuries, but his work of being an LIC Agent continued and he had, in fact, employed Shri Rajesh Sharma, Attendant, who was assisting him regularly in his LIC work.

¶25In these circumstances, the learned Claim Tribunal has rightly taken the Functional Disability of 21% and the same does not warrant any interference. Pecuniary and Non-Pecuniary Heads: -

¶26The fourth and fifth grounds of challenge to the impugned Award are that the compensation granted under the Pecuniary and

Non-Pecuniary Heads is required to be enhanced.

¶27As already discussed above, the Appellant/Injured remained under treatment for about eight months and was regularly going to the Hospital till about March, 2013 for follow-up, aside from being admitted on two occasions.

¶28Accordingly, the expenditure of Conveyance is enhanced from Rs. 15,000/- to Rs. 30,000/-. The expenditure on Special Diet is enhanced from Rs.20,000/-to Rs. 30,000/-. The compensation on account of mental and physical shock and also pain and suffering is enhanced from Rs. 10,000/- and Rs. 15,000/- respectively to Rs. 75,000/- collectively. The compensation towards Loss of Amenities of Life has been given NIL. The same is hereby given in the sum of Rs. 50,000/-. The compensation towards Disfiguration given in the sum of Rs. 20,000/- is enhanced to Rs. 50,000/-.

¶29In view of above, the compensation is recalculated as under: - S. No. Heads Awarded by Tribunal (in rupees) Enhanced by this Court (in rupees) PECUNIARY LOSS

¶1Expenditure on treatment 45,166/-Rs.45,166/-

¶2Expenditure on conveyance 15,000/-Rs.30,000/-

¶3Expenditure on special diet 20,000/-Rs.30,000/-

¶4Cost of nursing/attendant 30,000/-Rs.96,000/-

¶5Loss of earning capacity NIL NIL

¶6Loss of income NIL Rs. 62,670/-

¶7Any other loss which may require any special treatment or aid to the injured NIL NIL NON-PECUNIARY LOSS

¶8Compensation for mental and physical shock 10,000/- Rs. 75, 000/- collectively.

¶9Pain and suffering 15,000/-

¶10Loss of amenities of life NIL Rs.50,000/-

¶11Disfiguration 20,000/-Rs.50,000/-

¶12Loss of marriage prospects NIL NIL

¶13Loss of earning, inconvenience, hardships, disappointment, frustration, mental stress, dejectment and unhappiness in future life etc. NIL NIL DISABILITY RESUTING IN LOSS OF EARNING CAPACTIY

¶14Percentage of disability assessed and nature of disability as permanent or temporary 41% permanent disability 21% Functional Disability

(same)

¶15Loss of amenities or loss of expectation of life span on account of disability NIL NIL

¶16Percentage of loss of earning capacity in relation to disability 21% (qua whole body) Same

¶17Loss of future income Rs.3,68,448.15/-Rs.3,68,448.15/-

– (Income x % Earning capacity x Multiplier) TOTAL Rs.5,23,614.15/- Rs.8,10,000/- (rounded off)

Relief: -

¶30The Appellant is granted enhanced compensation amount of Rs.8,10,000/- along with interest @ 9% per annum, to be deposited by the Insurance Company before the learned Claim Tribunal within four weeks, which may be disbursed in accordance with modified Award dated 02.06.2018.

¶31Accordingly, the Appeal along with pending Application(s), if any, is hereby disposed of in the aforesaid terms.

NEENA BANSAL KRISHNA

(JUDGE) DECEMBER 16, 2024 r

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th December, 2024 + MAC.APP. 1032/2018 ASHKARAN OJHA S/O Sh. Dhula Ram Ojha R/O 138, Cross Road, Sant Nagar, Burari, Delhi- 110084 .....Appellant Through: Mr. Manish Maini, Ms. Divya Saini & Mr. R.K. Jain, Advocates Versus SHIVAM KUMAR R/O 197, Arachna Vaishali, Sector-3, P.S. Indrapuram, Ghaziabad, U.P. .....Respondent No. 1 SH. PAWAN GANDHI R/o 13/5, Indra Vikas Colony New Delhi-09 .....Respondent No. 2 THE UNTIED INDIA INSURANCE CO. LTD. 2/27 Okhla Road, Opposite Softel Surya, Sari Juliena, Delhi .....Respondent No. 3 L&T GENERAL INSURANCE CO. LTD. L&T House, N.M. Marg, Bailard Estate, Mumbai .....Respondent No. 4 Through: Mr. Amit K. Singh, Advocate for R-3 Mr. Rajeev M. Roy & Mr. P. Sreenivasan, Advocates for R-4 CORAM: HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA