icici Lombard General Insurance Co. Ltd. Vs. Dijo Davis and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1172272
CourtDelhi High Court
Decided OnNov-24-2014
JudgeJAYANT NATH
Appellanticici Lombard General Insurance Co. Ltd.
RespondentDijo Davis and ors.
Excerpt:
$~a-10 * in the high court of delhi at new delhi % + date of decision:24. 11.2014 mac.app. 155/2012 icici lombard general insurance co. ltd. ..... appellant through ms.suman bagga and mr.saral chaturvedi, advocates. versus dijo davis & ors. through ..... respondents mr.s.n.parashar, advocate. coram: hon'ble mr. justice jayant nath jayant nath, j.(oral) cm no.2035/2014 (delay in re-filing) this is an application for condonaton of delay of 351 days in re-filing of the appeal. it is urged that certain objections were raised by the registry and cross-objections were taken back by the counsel to remove the same but the cross-objections got misplaced in the office of the counsel for the appellant. this was found in december 2013 and the cross-objections were thereafter refiled. hence, it is urged that the delay of 351 days in re-filing of the present cross-objections may be condoned. subject to payment of cost of rs.5,000/- which will be payable by respondent no.1 to the delhi high court bar association legal aid fund, the delay in re-filing of cross-objections is condoned. the application is disposed of. cm no.2034/2014 (delay in filing) this is an application seeking condonation of delay of 333 days in filing of the cross-objections. it is averred that though notice was served on respondent no.1 on 10.03.2012 after receiving of which the respondent instructed the counsel to file the cross-objections but the complete set of paper book was not received by the respondent along with the notice. the set of paper book has been received on 21.08.2012 and hence the cross-objections have been filed. for the reasons stated in the application, in my opinion, there are sufficient grounds to condone the delay. the application is allowed and the delay in filing the appeal is condoned. cm no.2033/2014 these are cross-objections. these may be numbered separately as a separate appeal. the application is disposed of. mac. app no.155/2012 and mac app........................../201.... (crossobjections) 1. by this order i will dispose of the present appeal and the cross- objections which are now to be re-numbered as a separate appeal.2. the brief facts which led to filing of the claim petition are that on 22.03.2006 the claimant was going on a motorcycle with a pillion rider sh. sidharth kashid. at khoda crossing noida they were hit by a tata safari said to be driven by its driver at a high speed rashly and negligently. the claimant fell down and sustained serious injuries all over his body. the claimant was paralysed below his neck. the claimant is said to be studying in jss academy of technical education, sector-62, noida, u.p. and doing his bba course. he was in the second year.3. based on the evidence on record, the tribunal recorded that the accident took place due to the rash and negligent driving of the tata safari. on compensation the tribunal awarded a total compensation of rs. 44,47,772/- as follows:1.2.3.4. 5.6.7. 8.4. compensation towards pain and sufferings compensation towards loss of amenities and enjoyment medical bills compensation towards conveyance and special diet (without bills) compensation towards loss of future earnings due to injuries compensation towards attendants charges compensation against the physiotherapy charges against bills compensation towards future expenses on attendants charges, physiotherapy, hospital expenses and conveyance total rs.1,00,000/rs.1,00,000/rs.9,20,541/rs.50,000/rs.19,40,976/rs.50,000/rs.1,86,255/rs.11,00,000/- rs.44,47,772/- learned counsel appearing for the insurance company has pointed out that including interest a sum of about rs.63 lacs has been deposited before this court.5. learned counsel for the insurance company seeks to impugn the award on various grounds. she firstly submits that the tribunal has for purposes of computing compensation towards loss of future earnings due to injuries assessed the income of the claimant at rs.8,689/- but has wrongly taken the income as rs.8,986/- while calculating compensation. it is submitted that this is a typographical mistake. it is further urged that the tribunal has awarded a sum of rs.11,00,000/- towards future expenses and has yet awarded interest on the same from the date of the filing of the claim petition. it is next urged that the award of rs.11,00,000/- towards future expenses on attendants charges, physiotherapy, hospital expenses and conveyance is without any evidence whatsoever. it is lastly pointed out that non-pecuniary damages awarded by the tribunal are on the higher side.6. learned counsel appearing for the claimant has defended the compensation amount. he submits that the compensation awarded is on the lower side. he firstly submits that the claimant was studying in the second year of bba which is a three year course. he submits that the income has been wrongly assessed at rs.8,689/- by the tribunal of the claimant based on some services done by the claimant in his summer vacations with granada services pvt. ltd. noida. he relies upon the judgment of the supreme court in the case of ashvinbhai jayantilal modi vs. ramkaran ramchandra sharma 2014 (11) scale427to submits that the notional income would have been much higher. he also relies upon the evidence of pw-4- sidharth kashid who has said that the claimant was a student of bba (cam) and had an ambition to go to u.k. and that after doing bba one can earn rs.30,000/- to rs.40,000/- per month. he further submits that the institute from where the claimant was doing bba is affiliated to i.p. university. he also submits that the claimant has done his schooling from st. colamba’s, delhi. hence, learned counsel for the claimant submits the tribunal has to fix the notional income based on the above educational track record of the claimant and that assessment of income at rs.8,689/- is on the lower side. he secondly submits that the compensation for non-pecuniary damages is on the lower side.7. coming to the first contention of the learned counsel for the insurance company, it is an admitted mistake that the salary has been assessed by the tribunal at rs.8,689/- per month but while computing compensation for loss of income due to injuries the tribunal has wrongly taken it as rs.8,986/- as is clear from para 28 of the award. necessary correction has to be made.8. it is also correct that having awarded rs.11 lacs on account of future expenses, it would not be proper to award pendente lite interest on the same as this relates to future expenses. hence, no interest would be payable on the said sum of rs.11 lacs from the date of the filing of the claim petition till deposit in court.9. coming to the next submission of the learned counsel for the insurance company, it is on record that the claimant has suffered 100% physical disability. pw-6 dr. ritab kumar, consultant orthopedic surgeon, indian spinal injuries centre has in his evidence stated that the claimant was admitted on 22.03.2006 with a history of road traffic accident and he had fracture of neck bone with total paralysis of hands and legs and no control over bladder and bowel. he was discharged on 02.05.2007 and remained admitted for more than one year. he also confirms that he has 100% disability for whole time and he requires life time attendant and regular physiotherapy and regular visit of hospital for bladder/bowel problems. he has also confirmed that there is no hope of revival or improvement in the neurological condition of the patient. similarly, pw-7 dr.victor mathew, physiotherapist, indian spinal injuries has confirmed that during admission or after discharge patient would require lifetime physiotherapy. pw-3 in his affidavit by way of evidence has said that his condition is serious and that he is not able to move a single inch from the bed without the help of another person. he also submits that he gets bed sore on his back and that he requires two persons day and night i.e. for changing the position of his body, remove stool, urine from the bed, cleaning of dress and other daily routine work. he submits that he requires one person to get food, water and feed him liquid diet.10. in the light of the above evidence on record, there are no merits in the contention of the learned counsel for the insurance company regarding the award of compensation of rs.11 lacs for future expenses on attendants charges, physiotherapy, hospital expenses and conveyance.11. coming to the contentions of the learned counsel for the claimant. it is on record that the claimant was doing his bba. while carrying out his studies, he had managed to get a job in the summer vacations where he got a salary of rs.8,689/- for one month. he has studied from st. columbus and had completed three semesters of bba course. it is claimed that after completion of bba he would have got a salary of rs. 30,000/- per month.12. in my opinion the tribunal erred in assessing the income of the claimant based on a salary certificate issued for the work done while he was studying. the said employment while studying only indicates that the claimant was an exceptionally brilliant student and had managed to get a job while still not having completed his bba. relying upon the judgment of the supreme court in the case of ashvinbhai jayantilal modi vs. ramkaran ramchandra sharma (supra) where the supreme court took a notional income of rs. 25,000/- for a student of mbbs and on the judgment of the supreme court in the case of v. mekala vs. m. malathi & anr 2014 acj144where the supreme court took a notional income of rs.10,000/- in the case of a 16 year old girl studying in xith class and also in the case of v. selvaraj & anr. vs. bajaj allianz gen. ins. co. ltd. & anr. slp (c) no (s) 39510/2013 where the supreme court took the notional income of rs.10,000/- for an engineering student, i assess the notional income of the claimant at rs.12,000/- for purposes of computing loss of future earnings due to injuries. accordingly, compensation for loss of future earnings due to injuries would now come to rs.25,92,000/- (rs.12,000 x 12 x 18).13. given the nature of the case and the evidence on record, i enhance the compensation towards pain and sufferings from rs.1 lac to rs.2 lacs. similarly for loss of amenities and enjoyment also i enhance compensation from rs.1 lac to rs.2 lacs. for the enhancement made for non-pecuniary damages as above reference may be had to the judgment of the supreme court in the case of rekha jain v. national insurance co. ltd. 2013(8) scc389 14. in view of the above, the total compensation now payable would be as follows:1.2.3.4. 5.6. compensation towards pain and sufferings compensation towards loss of amenities and enjoyment medical bills compensation towards conveyance and special diet (without bills) compensation towards loss of future earnings due to injuries compensation towards attendants mac app.155/2012 rs.2,00,000/rs.2,00,000/rs.9,20,541/rs.50,000/- 7.8. 15. charges compensation against the physiotherapy charges against bills compensation towards future expenses on attendants charges, physiotherapy, hospital expenses and conveyance total rs.1,86,255/- rs.11,00,000/- rs.52,98,796/- the insurance company may, after adjusting interest already paid on future expenses only i.e. attendants charges, physiotherapy, hospital expenses and conveyance, deposit the additional compensation amount as per the above order with accumulated interest @ 7.5% p.a. from the date of the filing of the claim petition till deposit in this court before the registrar general of this court within six weeks from today. on receipt of the said enhanced compensation amount with interest, the registrar general shall release 50% of the said amount in favour of the claimant and balance 50% shall be kept in a fixed deposit for a period of six years with uco bank, delhi high court branch. the claimant shall be entitled to interest at quarterly rests. payment shall be released only on showing proof of payment of costs.16. all interim orders stand vacated.17. both the appeals stand disposed of. jayant nath, j november24 2014 rb
Judgment:

$~A-10 * IN THE HIGH COURT OF DELHI AT NEW DELHI % + Date of Decision:

24. 11.2014 MAC.APP. 155/2012 ICICI LOMBARD GENERAL INSURANCE CO. LTD. ..... Appellant Through Ms.Suman Bagga and Mr.Saral Chaturvedi, Advocates. versus DIJO DAVIS & ORS. Through ..... Respondents Mr.S.N.Parashar, Advocate. CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.

(Oral) CM No.2035/2014 (delay in re-filing) This is an application for condonaton of delay of 351 days in re-filing of the appeal. It is urged that certain objections were raised by the Registry and cross-objections were taken back by the counsel to remove the same but the cross-objections got misplaced in the office of the counsel for the appellant. This was found in December 2013 and the cross-objections were thereafter refiled. Hence, it is urged that the delay of 351 days in re-filing of the present cross-objections may be condoned. Subject to payment of cost of Rs.5,000/- which will be payable by respondent No.1 to the Delhi High Court Bar Association Legal Aid Fund, the delay in re-filing of cross-objections is condoned. The application is disposed of. CM No.2034/2014 (delay in filing) This is an application seeking condonation of delay of 333 days in filing of the cross-objections. It is averred that though notice was served on respondent No.1 on 10.03.2012 after receiving of which the respondent instructed the counsel to file the cross-objections but the complete set of paper book was not received by the respondent along with the notice. The set of paper book has been received on 21.08.2012 and hence the cross-objections have been filed. For the reasons stated in the application, in my opinion, there are sufficient grounds to condone the delay. The application is allowed and the delay in filing the appeal is condoned. CM No.2033/2014 These are cross-objections. These may be numbered separately as a separate appeal. The application is disposed of. MAC. APP No.155/2012 and MAC APP........................../201.... (crossobjections) 1. By this order I will dispose of the present appeal and the cross- objections which are now to be re-numbered as a separate appeal.

2. The brief facts which led to filing of the claim petition are that on 22.03.2006 the claimant was going on a motorcycle with a pillion rider Sh. Sidharth Kashid. At Khoda Crossing Noida they were hit by a Tata Safari said to be driven by its driver at a high speed rashly and negligently. The claimant fell down and sustained serious injuries all over his body. The claimant was paralysed below his neck. The claimant is said to be studying in JSS Academy of Technical Education, Sector-62, Noida, U.P. and doing his BBA course. He was in the second year.

3. Based on the evidence on record, the Tribunal recorded that the accident took place due to the rash and negligent driving of the Tata safari. On compensation the Tribunal awarded a total compensation of Rs. 44,47,772/- as follows:1.

2.

3.

4. 5.

6.

7. 8.

4. Compensation towards pain and sufferings Compensation towards loss of amenities and enjoyment Medical bills Compensation towards conveyance and special diet (without bills) Compensation towards loss of future earnings due to injuries Compensation towards attendants charges Compensation against the physiotherapy charges against bills Compensation towards future expenses on attendants charges, physiotherapy, hospital expenses and conveyance Total Rs.1,00,000/Rs.1,00,000/Rs.9,20,541/Rs.50,000/Rs.19,40,976/Rs.50,000/Rs.1,86,255/Rs.11,00,000/- Rs.44,47,772/- Learned counsel appearing for the Insurance Company has pointed out that including interest a sum of about Rs.63 lacs has been deposited before this Court.

5. Learned counsel for the Insurance Company seeks to impugn the award on various grounds. She firstly submits that the Tribunal has for purposes of computing compensation towards loss of future earnings due to injuries assessed the income of the claimant at Rs.8,689/- but has wrongly taken the income as Rs.8,986/- while calculating compensation. It is submitted that this is a typographical mistake. It is further urged that the Tribunal has awarded a sum of Rs.11,00,000/- towards future expenses and has yet awarded interest on the same from the date of the filing of the claim petition. It is next urged that the award of Rs.11,00,000/- towards future expenses on attendants charges, physiotherapy, hospital expenses and conveyance is without any evidence whatsoever. It is lastly pointed out that non-pecuniary damages awarded by the Tribunal are on the higher side.

6. Learned counsel appearing for the claimant has defended the compensation amount. He submits that the compensation awarded is on the lower side. He firstly submits that the claimant was studying in the second year of BBA which is a three year course. He submits that the income has been wrongly assessed at Rs.8,689/- by the Tribunal of the claimant based on some services done by the claimant in his summer vacations with Granada Services Pvt. Ltd. Noida. He relies upon the judgment of the Supreme Court in the case of Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma 2014 (11) SCALE427to submits that the notional income would have been much higher. He also relies upon the evidence of PW-4- Sidharth Kashid who has said that the claimant was a student of BBA (CAM) and had an ambition to go to U.K. and that after doing BBA one can earn Rs.30,000/- to Rs.40,000/- per month. He further submits that the Institute from where the claimant was doing BBA is affiliated to I.P. University. He also submits that the claimant has done his schooling from St. Colamba’s, Delhi. Hence, learned counsel for the claimant submits the Tribunal has to fix the notional income based on the above educational track record of the claimant and that assessment of income at Rs.8,689/- is on the lower side. He secondly submits that the compensation for non-pecuniary damages is on the lower side.

7. Coming to the first contention of the learned counsel for the Insurance Company, it is an admitted mistake that the salary has been assessed by the Tribunal at Rs.8,689/- per month but while computing compensation for loss of income due to injuries the Tribunal has wrongly taken it as Rs.8,986/- as is clear from para 28 of the Award. Necessary correction has to be made.

8. It is also correct that having awarded Rs.11 lacs on account of future expenses, it would not be proper to award pendente lite interest on the same as this relates to future expenses. Hence, no interest would be payable on the said sum of Rs.11 lacs from the date of the filing of the claim petition till deposit in court.

9. Coming to the next submission of the learned counsel for the Insurance Company, it is on record that the claimant has suffered 100% physical disability. PW-6 Dr. Ritab Kumar, Consultant Orthopedic Surgeon, Indian Spinal Injuries Centre has in his evidence stated that the claimant was admitted on 22.03.2006 with a history of road traffic accident and he had fracture of neck bone with total paralysis of hands and legs and no control over bladder and bowel. He was discharged on 02.05.2007 and remained admitted for more than one year. He also confirms that he has 100% disability for whole time and he requires life time attendant and regular physiotherapy and regular visit of hospital for bladder/bowel problems. He has also confirmed that there is no hope of revival or improvement in the neurological condition of the patient. Similarly, PW-7 Dr.Victor Mathew, Physiotherapist, Indian Spinal Injuries has confirmed that during admission or after discharge patient would require lifetime physiotherapy. PW-3 in his affidavit by way of evidence has said that his condition is serious and that he is not able to move a single inch from the bed without the help of another person. He also submits that he gets bed sore on his back and that he requires two persons day and night i.e. for changing the position of his body, remove stool, urine from the bed, cleaning of dress and other daily routine work. He submits that he requires one person to get food, water and feed him liquid diet.

10. In the light of the above evidence on record, there are no merits in the contention of the learned counsel for the Insurance Company regarding the award of compensation of Rs.11 lacs for future expenses on attendants charges, physiotherapy, hospital expenses and conveyance.

11. Coming to the contentions of the learned counsel for the claimant. It is on record that the claimant was doing his BBA. While carrying out his studies, he had managed to get a job in the summer vacations where he got a salary of Rs.8,689/- for one month. He has studied from St. Columbus and had completed three semesters of BBA course. It is claimed that after completion of BBA he would have got a salary of Rs. 30,000/- per month.

12. In my opinion the Tribunal erred in assessing the income of the claimant based on a salary certificate issued for the work done while he was studying. The said employment while studying only indicates that the claimant was an exceptionally brilliant student and had managed to get a job while still not having completed his BBA. Relying upon the judgment of the Supreme Court in the case of Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma (supra) where the Supreme Court took a notional income of Rs. 25,000/- for a student of MBBS and on the judgment of the Supreme Court in the case of V. Mekala vs. M. Malathi & Anr 2014 ACJ144where the Supreme Court took a notional income of Rs.10,000/- in the case of a 16 year old girl studying in XIth class and also in the case of V. Selvaraj & anr. vs. Bajaj Allianz Gen. Ins. Co. Ltd. & Anr. SLP (C) No (S) 39510/2013 where the Supreme Court took the notional income of Rs.10,000/- for an engineering student, I assess the notional income of the claimant at Rs.12,000/- for purposes of computing loss of future earnings due to injuries. Accordingly, compensation for loss of future earnings due to injuries would now come to Rs.25,92,000/- (Rs.12,000 x 12 x 18).

13. Given the nature of the case and the evidence on record, I enhance the compensation towards pain and sufferings from Rs.1 lac to Rs.2 lacs. Similarly for loss of amenities and enjoyment also I enhance compensation from Rs.1 lac to Rs.2 lacs. For the enhancement made for non-pecuniary damages as above reference may be had to the judgment of the Supreme Court in the case of Rekha Jain v. National Insurance Co. Ltd. 2013(8) SCC389 14. In view of the above, the total compensation now payable would be as follows:1.

2.

3.

4. 5.

6. Compensation towards pain and sufferings Compensation towards loss of amenities and enjoyment Medical bills Compensation towards conveyance and special diet (without bills) Compensation towards loss of future earnings due to injuries Compensation towards attendants MAC APP.155/2012 Rs.2,00,000/Rs.2,00,000/Rs.9,20,541/Rs.50,000/- 7.

8. 15. charges Compensation against the physiotherapy charges against bills Compensation towards future expenses on attendants charges, physiotherapy, hospital expenses and conveyance Total Rs.1,86,255/- Rs.11,00,000/- Rs.52,98,796/- The Insurance Company may, after adjusting interest already paid on future expenses only i.e. attendants charges, physiotherapy, hospital expenses and conveyance, deposit the additional compensation amount as per the above order with accumulated interest @ 7.5% p.a. from the date of the filing of the claim petition till deposit in this court before the Registrar General of this court within six weeks from today. On receipt of the said enhanced compensation amount with interest, the Registrar General shall release 50% of the said amount in favour of the claimant and balance 50% shall be kept in a fixed deposit for a period of six years with UCO Bank, Delhi High Court Branch. The claimant shall be entitled to interest at quarterly rests. Payment shall be released only on showing proof of payment of costs.

16. All interim orders stand vacated.

17. Both the appeals stand disposed of. JAYANT NATH, J NOVEMBER24 2014 rb