Oriental Insurance Company Ltd v. Sharwan Singh (since deceased) through his legal heirs
2018-11-17
SURESHWAR THAKUR
body2018
DigiLaw.ai
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal, stands directed, by the aggrieved insurer/appellant herein, against the award pronounced, upon, MAC Petition No. 18-NL/2 of 2010, (i) whereunder, vis-a-vis, the compensation amount, as stood determined qua the claimant( now deceased), the, apt indemnificatory liability thereof, hence stood fastened, upon, it, (ii) whereas, through cross-objections bearing No.38 of 2015, the disabled claimant, now represented by his legal heirs, also seeks enhancement of compensation, on anvil, of various grounds, as enumerated therein. 2. The learned counsel appearing for the insurer, (i) does not contest the validity, of the, affirmative findings rendered, upon, the issue appertaining to the illfated mishap, being a sequel of rash and negligent manner of driving, of the offending vehicle, by its driver, (ii) nor he contests, the validity of the disaffirmative findings rendered, upon, the issue appertaining to the driver of the offending vehicle, at the relevant time, not holding an effective driving licence, (iii) nor he obviously contests the fastening, of, the apposite indemnificatory liability, upon, the insurer. 3. In sequel, to the injuries, entailed upon the claimant, in a motor vehicle accident, caused by the rash and negligent manner, of, driving of the offending vehicle by its driver, a critical disability to the extent of 70%, hence, stood encumbered upon him. The apt disability certificate, is, borne in Ex.PW4/A. A perusal of Ex.PW4/A, reveals, (i) that the disability, as, encumbered upon the claimant, being permanent in nature, and, it impairing the locomotor of the claimant, (ii) per se, hence, the disabled claimant rather stood encumbered, with, a permanent loss of earning, and, was entailed, with, a perennial loss of enjoyment of life, and, also was entailed with concomitant pain and suffering.
However, the learned counsel appearing for the insurer, has urged with much vigour before this Court, that, with the claimant, in his deposition, comprised in his affidavit (Ex.PW2/A), as, tendered into evidence, during, the course of his examination-in-chief, (iii) rather making a communication therein qua his, for rather ensuring, his, recuperation from the injuries, entailed upon him, in the afore ill-fated mishap, hence his remaining admitted, from, 3.7.2010 upto 22.07.2010 at Command Hospital, Chandi Mandir, (iv) thereupon, he submits that when the treatment afforded thereat, to the claimant, was, without any expenses being borne by the claimant, hence, a sum of Rs.2,000/- per day, as, assessed by the learned tribunal, towards attendant charges, and, for special diet, being grossly improper. However, the aforesaid submission, has no force, (v) given even though a communication, is, made by the claimant, in his affidavit, qua his being treated at Command Hospital, Chandi Mandir, (vi) and even if assumingly, the expenses towards normal diet, meted at the afore hospital, to the claimant, also not being required to be borne, by the claimant, (vii) nonetheless when for ensuring, the early recuperation, of the claimant, from the injuries suffered by him, in the relevant mishap, he was hence enjoined to ensurr in taking, of, special diet, also, was enjoined to receive the services, of, an attendant, given the services of an attendant being not gratuitously purveyable to him, at the afore hospital, (viii) thereupon, the quantification of compensation, borne in a sum of Rs.38,000/-, towards attendant charges, and, special diet, by the learned tribunal, does not, suffer from any infirmity. 4. However, the learned counsel appearing, for the insurer, has further contended that the sum of Rs.50,000/- as assessed towards medical expenses, vis-avis, the claimants, rather also requiring interference, given the claimant, not placing on record, any bills, reflective of his bearing the expenses, vis-a-vis, the medicines required for his recuperating, from, the injuries entailed, upon, his person. He has also submitted that the afore omission, of, the claimant, being a sequel, of all the expenses towards medicines, as, required for his recuperating, from, his injuries, not being, borne by the claimant, rather being borne by the Command Hospital, Chandi Mandir, given the claimant being an ex-serviceman, (i) and, his being entitled, to not, bear the expenses, of the, medicines required for his treatment.
The afore submission has strength, and, is mertiworthy, given no medical bills being placed, on record by the claimant. Hence, the afore sum of Rs.50,000/-, assessed vis-a-vis the claimant under the head “medical expenses” is set aside. 5. In addition, the learned counsel appearing for the insurer has contended with much vigour before this Court that (i) a sum of Rs.1,25,000/-- assessed, vis-a-vis, the claimant, towards pain, suffering and trauma, and, a further sum of Rs.2,00,000/- assessed, on account of disability, rather being unassessable, (ii) given both afore heads hence overlapping, and, coagulating with each other. However, given the magnitude, and, severity of the disability entailed, upon, the claimant, and, with the decision rendered by the Hon'ble Apex Court, in a case titled as Laxman alias Laxman Mourya vs. Divisional Manager, Oriental Insurance Company Ltd. And another, reported in (2011)10 SCC 756 , hence, making a candid expostulation (i) vis-a-vis, the entitlement of the claimant, to receive compensation both under the head(s) “pain and suffering”, and, vis-a-vis, trauma arising, from the apposite disability, (ii) and, also his being entitled to further sum of compensation, under, the head “loss of amenities of life”, (iii) thereupon, the vigour of the afore espousal made before this Court, by the learned counsel for the insurer, is rendered both enfeebled, and, emaciated. 6. The learned counsel appearing for the insurer has contended, that, with there being no evidence, with respect to the disabled claimant, rearing any, income comprised, in a sum of Rs.13,000/- per mensem, from his purported agricultural pursuits, and, dairy farming pursuits, (I) hence, quantification of compensation under the head “loss of future income” being wholly unjustifiable. However, the aforesaid contention is rudderless, given, the claimant in his affidavit, tendered into evidence, during his examination-in-chief, hence, making clear voicings therein, and, in consonance with the pleadings reared in his petition, and, his also making a testification qua the disability entailed, upon, his person rendering him concomitantly, hence, defacilitated to rear income(s) from the afore agricultural pursuits, and, from his running a dairy farm, (i) and, during the course of his cross-examination, rather the counsel for the insurer, omitting to shatter, the afore communication, by subjecting him to a rigorous cross-examination, rather begets an inference, that, the insurer hence acquiescing qua the afore echoing borne in Ex.PW2/A, acquiring an aura of truth.
Consequently, the assessment of compensation, vis-a-vis, the claimant under the head “loss of future income”, does not, suffer from any infirmity. 7. The learned counsel appearing for the crossobjector, has contended that, under, the hereinabove referred heads, compensation amount, higher, than the amount assessed, thereunder, rather was assessable, visa- vis, the cross-objectors. However, the afore contention is meritless, and, is rejected, besides the other contention(s) raised therein, vis-a-vis, enhancement of compensation being made, under, the head(s) appertaining, to, special diet, and, to, attendant charges, and, to medical expenses, are also rejected. However, the contention raised in the cross-objections, that, the interest at the rate of 9% per annum was hence leviable, upon, the modified compensation amount is accepted, in view of the verdict rendered by the Hon'ble Apex Court in a case titled, as Reliance General Insurance Company Ltd. vs. Shalu Sharma and others, rendered in Civil Appeal No. 000767 of 2018, the relevant paragraph whereof stand extracted hereinafter:- “An additional of Rs.70,000/- would be required to be made in terms of the decision in Pranay Sethi (Supra) on account of the conventional heads of loss of estate (Rs.15,000), loss of consortium (Rs.40,000/-) and funeral charges (Rs.15,000), claimants would be entitled to interest @ 9% p.a. from the date of the filing of the claim petition. The apportionment shall be carried out in terms of the award of the Tribunal. We order accordingly.” 8. For the foregoing reasons, the instant appeal as well as the cross-objections are partly allowed, and, the impugned award is modified, in, the aforesaid extent only. Consequently, the claimant (now deceased) is entitled to a total compensation amount of Rs.13,13,000/-, amount whereof shall carry interest at the rate of 9% per annum, commencing, from, the date of filing of the petition, till its deposit. All pending applications also stand disposed of. Records be sent back forthwith.