Research › Search › Judgment

Uttarakhand High Court · body

2017 DIGILAW 42 (UTT)

Bhanu Kothari v. I. C. I. C. I. Lombard General Insurance

2017-01-12

SERVESH KUMAR GUPTA

body2017
JUDGMENT : Servesh Kumar Gupta, J. 1. Both these appeals have arisen out of the same accident/judgment, hence are being adjudicated together by this common judgment. 2. Accident occurred on 21.5.2010 at 3 PM on Kaulagarh Road, Dehradun when an Alto car bearing no. HR02Q-0243 dashed a Vikram tempo having registration no. UA07T-1025. As a consequence, Km. Bhanu Kothari, among others, who was a passenger on fare in such tempo became seriously injured. Km. Bhanu Kothari was pursuing her Post-Graduation course on environmental science at the relevant time in the nearby educational institution and as a result of this accident, she remained hospitalised for several months in different hospitals and higher centres of medical assistance including Indian Spinal Injury Centre, Delhi. Besides, on account of the complete bone fracture in her neck, there was a serious injury in her spinal cord. Ultimately, she was declared 90 per cent disabled by all the doctors with the features indicating her inability to carry out the day-to-day functions of a human body. 3. Demanding Rs. 90,000,00/-, a claim petition no. 193/2010 was presented by her and the learned Tribunal, by way of the impugned judgment dated 16.5.2012, has awarded the total compensation to the tune of Rs. 13,20,000/-, which can be broken up as under : (i) Rs. 7,50,000/- towards medical expenses, (ii) Rs. 3,67,200/- towards future earnings and (iii) Rs. 2,00,000/- towards the mental agony and anguish. 4. I.C.I.C.I. General Insurance Company was the insurer of the Alto car, against whom this liability has been fastened. This insurance company has challenged the quantum of award as well as the fastening of the liability by way of filing the AO No. 455/2012. On the contrary, AO No. 409/2012 has been presented by Km. Bhanu Kothari for enhancement of the compensation. 5. Learned Counsel of the insurance company has argued that the total blame should not be attached to the Alto car, but it should be shared by the Vikram tempo as well and since the insurer of Vikram tempo has not been impleaded as party, so the amount of award should be made fifty per cent for the I.C.I.C.I. Lombard General Insurance Company. 6. 6. I have heard learned Counsel of both the parties and feel that since the whole blame of this accident is on account of rash and negligent driving of the car owner, as has been deposed by all the eyewitnesses, hence no question arises to shift even the fifty per cent liability to the insurer of Vikram tempo. Therefore, there is no case of non-joinder of party by omitting to implead the insurer of the Vikram tempo. 7. Nothing has come out on the record to indicate even the least that Vikram tempo was also partially responsible for this accident. 8. As regards AO No. 409/2012, presented by Km. Bhanu Kothari for enhancement of compensation, I feel that the whole hypothesis which has been made the basis for calculating the award is misconceived. Learned Trial Court though has held 90 per cent disability, yet it has evaluated the compensation on the basis of notional income of Km. Bhanu Kothari, who was completely unemployed at the relevant time, but she was pursuing her advance course in environmental science and was writing her desertation on the relevant subject. She was a talented girl as per her academic certificates because she qualified B.Sc. Graduation in the first division in the year 2008 and had completed three semesters of M.Sc. as well. Since her neck bone had completely broken and spinal cord suffered serious injury making her unable for rest of the life to perform day-to-day functions of a human body, hence, I feel that it is difficult to measure her miseries in terms of pecuniary compensation. 9. Learned Counsel on behalf of the claimant Km. Bhanu Kothari has relied upon a judgment of Hon’ble Supreme Court rendered in Ram Kiran Goel (D) through L.Rs. v. Sub-Divisional Engineer & Others, reported in 2012 (109) AIC 270 (S.C.). The Hon’ble Apex Court has based its judgment on the findings recorded in yet another case Raj Kumar v. Ajay Kumar, 2011 (98) AIC 251 (SC). In both the cases, the Hon’ble Supreme Court has dealt with the granting of compensation in similar controversy on the following scores: (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing, food and miscellaneous expenditure. In both the cases, the Hon’ble Supreme Court has dealt with the granting of compensation in similar controversy on the following scores: (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing, food and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : (a) Loss of earning during the period of treatment (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages). (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). 10. So, considering all these aspects, I find that the grant of Rs. 3,67,200/- in lieu of loss of future earnings is quite inadequate. Instead, I deem it proper to grant the compensation as under: (i) Towards expenses relating to medical bills, treatment, hospitalisation, medicines, transportation, nourishing, food and miscellaneous expenditure = Rs. 7,50,000/- (rupees seven lakhs fifty thousand only). (ii) Loss of future earnings on account of permanent disability – Since the injured Km. Bhanu Kothari was a very talented girl pursuing her Post-Graduation in environmental sciences, hence there was every probability to secure a good job after her academic education was over. In this regard it would be proper to grant at least Rs. 3,00,000/- (rupees three lakhs only). (iii) Future medical expenses = Rs. 2,00,000/- (rupees two lakhs only). (iv) Damages for pain, suffering and trauma as a consequence of the injuries = Rs. 2,00,000/- (rupees two lakhs only). (v) Loss of amenities (and/or loss of prospects of marriage) = Rs. 2,00,000/- (rupees two lakhs only). (vi) Loss of expectation of life (shortening of normal longevity) = Rs. 2,00,000/- (rupees two lakhs only). 11. Thus, in total, I enhance the compensation from Rs. 13,20,000/- to Rs. 18,50,000/- (eighteen lakhs fifty thousand only). 12. It is pertinent to mention that no amount of pecuniary compensation can compensate such life of a young girl, but grant of the reasonable award, in the form of just compensation, mitigates and diminishes her pain and suffering to an extent. This way I deem it proper to enhance the award from Rs. 13,20,000/- to Rs. 18,50,000/- along with 9 per cent simple annual interest with effect from the date of institution of the suit. This way I deem it proper to enhance the award from Rs. 13,20,000/- to Rs. 18,50,000/- along with 9 per cent simple annual interest with effect from the date of institution of the suit. This interest shall be exigible on the difference of the amount after adjusting the amount already deposited by the insurance company. 13. Consequently, the appeal preferred by the I.C.I.C.I. Lombard General Insurance Company is hereby dismissed, while the appeal presented by Km. Bhanu Kothari stands allowed in above terms. Impugned judgment and order is modified to the extent indicated above. 14. Registry shall remit the amount of compulsory statutory deposit along with the interest it has earned to the Tribunal concerned. I.C.I.C.I. Lombard General Insurance Company shall deposit the remaining amount within four weeks before the Tribunal. Thereafter the entire amount of compensation shall be released in favour of the claimant without asking for any surety/security from her. 15. Let the LCR be sent back.