In merged appeals by insurer and injured victim over the same compensation award, the Court disallowed the insurer's claim of contributory negligence while holding the compensation quantum fair except for interest, which was reduced from 12% to 9%.
Impugned award upheld; interest reduced to 9% per annum; compensation released promptly.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 13, 2018
+ MAC.APP. 165/2017
SHRI RAM GENERAL INSURANCE CO LTD. ..... Appellant Through: Mohd. Mustafa, Advocate
Versus
RAJESH KUMAR ..... Respondent Through: Mr. Anshuman Bal, Advocate
RAJESH KUMAR ..... Appellant Through: Mr. Anshuman Bal, Advocate
Versus
SHRI RAM GENERAL INSURANCE CO LTD & ORS. ..Respondents Through: Mohd. Mustafa, Advocate CORAM: HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
C.M. 6727/2017 (u/S 151 CPC) in MAC.APP. 165/2017
Allowed subject to all just exceptions.
C.M. 6728 /2017 (u/S 151 CPC) in MAC.APP. 165/2017
There is delay of five days in filing the accompanying appeal.
MAC.APP. 165/2017 MAC.APP. 1045/2017
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Upon hearing, I find that averments made in this application provide sufficient cause to condone the delay occasioned. Application is allowed and delay is condoned.
The application is disposed of.
MAC.APP. 165/2017 MAC.APP. 1045/2017
“The requisite facts to be exposited for adjudication are that on 05.01.2011 at about 9:40 AM, the petitioner Rajesh Kumar was going on his motorcycle alongwith his daughter Naina and son Vishal @ Badal as pillion riders. As they reached on Delhi Hapur Road, Hapur in front of Tata Telco Company, they were hit by a Truck bearing registration No. HR-55Q-7692 (hereinafter referred to as the offending vehicle) from front side being driven by the respondent no.1 at a high speed and negligent manner. All
MAC.APP. 165/2017 MAC.APP. 1045/2017
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the petitioners sustained grievous injuries and were taken to Khan Nursing Home, Hapur, U.P. for treatment. However, during treatment minor Naina and Vishal @ Badal succumbed to their injuries. A case FIR No. 4/14, under Section 279/338/304 A of IPC was registered at police station Kotwali, Hapur against the Respondent no.1.”
| Towards pain and sufferings | `1,00,000/- |
|---|---|
| Towards servant/ attendant charges |
`30,000/- |
| Loss of amenities and enjoyment of life |
`60,000/- |
| Towards conveyance and special diet |
`40,000/- |
| Towards medical bills | `1,26,000/- |
| Towards future loss of income | `10,86,759/- |
| Towards loss of wages | `2,74,924/- |
| Total | `17,17,683/- |
MAC.APP. 165/2017 MAC.APP. 1045/2017
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negligence of Injured- Rajesh Kumar , who was driving the motor cycle without wearing a helmet. It is submitted by counsel for Insurer that Injured- Rajesh Kumar was not holding a valid driving license and had permitted two pillion riders on the motor cycle and thereby, violated the provisions of Motor Vehicles Act, 1988. Learned counsel for Insurer submits that accident in question was result of a head on collusion and this accident had occurred during day time and so, negligence of Injured- Rajesh Kumar was to the extent of 50%. Learned counsel for Insurer submits that “functional disability” assessed as 80% by the Tribunal is on higher side and it ought to be 50%. It is also submitted by counsel for Insurer that the interest of 12% per annum awarded is on the higher side and it be reduced to 9% per annum.
MAC.APP. 165/2017 MAC.APP. 1045/2017
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MAC.APP. 165/2017 MAC.APP. 1045/2017
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(Ex. PW3/1) and evidence of Dr. Anup Kumar (PW-2) and Dr. Brijesh Kumar (PW-3) , I find that due to the injuries sustained by the Injured in this accident, he is on wheel chair but it cannot be said that the “functional disability” of the Injured is 100%. In the considered opinion of this Court, in view of the evidence on record, 80% “functional disability” has been rightly assessed by the Tribunal.
1,00,000/- and 60,000/respectively under these two heads. So far as “attendant charges” are concerned, a sum of `30,000/- awarded under this head is justified, as the evidence to claim “attendant charges” is scanty.5,00,000/- under the head of _“loss of amenities of life”_ has been granted. Reliance placed upon decision in _Afnees (Supra),_ is of no avail as the Injured in the said decision was 19 years of age and was reduced to vegetative state due to the accident. Reliance placed upon Supreme Court’s decision in _Jagdish (Supra)_ is of no assistance to the case of Injured, as in the said decision, injured was 24 years of age and so, composite compensation of 2,00,000/- under the head “loss of amenities of life” was granted, whereas in the instant case, Injured – Rajesh Kumar is of 42 years of age. Supreme Court’s decision in Ankur Kapoor (Supra), is also of no help to the case of Injured as in this decision, compensation of `3,00,000/- eachMAC.APP. 165/2017 MAC.APP. 1045/2017
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under the head of “loss of amenities of life and future prospects” and “pain and suffering” was granted because the Injured was a Trainee in a Merchant Navy Company and was unmarried boy of 22 years of age, whereas in the case in hand, Injured was a Safai Karamchari , and is married. In view of aforesaid, I am of the considered opinion that the compensation awarded by the Tribunal under the head “pain and suffering” and “loss of amenities and enjoyment of life” is just and fair and no case for enhancement of compensation under these two heads is made out. As far as interest granted by the Tribunal is concerned, I find that a Three Judge Bench of Supreme Court in a recent decision of Jagdish v. Mohan and Others, (2018) 4 SCC 571 has granted interest @ 9% per annum on the awarded compensation and so, Injured is also entitled to interest @ 9% per annum .
(SUNIL GAUR) JUDGE
JULY 13, 2018 r
MAC.APP. 165/2017 MAC.APP. 1045/2017
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2 issues framed by the court
Whether the claimant's lack of driving license and contravention of helmet rules constitute contributory negligence that warrants apportionment of damages.
Whether the quantum of compensation for pain, suffering, and loss of amenities requires enhancement based on Supreme Court precedents.
Colour shows how this judgement treated each authority
Anita & Ors. Vs. Arun Yadav & Ors.Distinguished¶38
Anita & Ors. Vs. Arun Yadav & Ors. 2017 SCC OnLine SC 1139 · Who else cites this
Jagdish Vs. Mohan & ors.Distinguished¶3847
Jagdish Vs. Mohan & ors. (2018) 4 SCC 571 · Who else cites this
Ankur Kapoor Vs. Oriental Insurance Company LimitedDistinguished¶38
Ankur Kapoor Vs. Oriental Insurance Company Limited (2018) 1 SCC 136 · Who else cites this
Afnees (unconscious) rep through Mother Vs. Oriental Insurance Company Ltd.Distinguished¶38
Afnees (unconscious) rep through Mother Vs. Oriental Insurance Company Ltd. & Ors. 2017 ACJ 2622
2 provisions across 1 enactments
Shri Ram General Insurance Co Ltd.
Rajesh Kumar
Sunil Gaur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court