Supreme Court - Daily Orders
G Vivek vs National Insurance Co. Ltd. on 12 October, 2022
Bench: Surya Kant, M.M. Sundresh
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.7192/2022
(@ Special Leave Petition (C) No. 24068/2018)
G VIVEK Appellant(s)
VERSUS
NATIONAL INSURANCE CO. LTD. & ANR. Respondent(s)
O R D E R
1. Leave granted.
2. The Appellant has laid a challenge to the Judgment and Order dated 03.11.2017 passed by the High Court of Orissa at Cuttack, whereby an appeal filed by the Insurance Company in the Motor Accident Claim Case has been allowed in part and the compensation amount of Rs. 78,83,000/ granted by the Motor Accident Claims Tribunal (Hereafter ‘the Tribunal’) has been reduced to Rs. 50,00,000/.
3. The Appellant was 12 years old and enrolled in 8 th standard at Johnson Grammar School, Nacharam, Hyderabad, Andhra Pradesh, when he met with the unfortunate accident. The mishap occurred on 24.05.2011 while he was travelling from Jeypore to Visakhapatnam along with his family on OSRTC Bus bearing Registration No. OR10 F3850. When the bus was near Tharapuram, NH 26, Rambhadrapuram Signature Not Verified Village, Andhra Pradesh, a lorry bearing Registration No. CG04DF Digitally signed by VISHAL ANAND Date: 2022.10.17 19:42:06 IST Reason: 4126, owned by Respondent No. 2 and carrying iron angles dashed into the bus because of the rash and negligent manner it was 2 driven. The tragic event resulted in 21 passengers being injured; later 2 of them succumbed to their injuries.
4. The Appellant also suffered multiple injuries including (i) Crush injury of right leg and knee, (ii) Degloving injury of right leg, (iii) Compound injury of right knee, (iv) Crush injury of left foot and (v) Communicated fracture of right knee and tibia.
5. The Appellant was firstly admitted to Care Hospital, Visakhapatnam but finding no improvement in respect to his health, he was shifted to C.C. Shroff Memorial Hospital, Hyderabad. Unfortunately, the right leg of the Appellant had to be amputated. The family incurred cost of Rs.7,00,000/ in treatment of the Appellant. The Disability Certificate issued by the Competent Authority suggests that the Appellant has suffered 97% permanent disability in relation to the right lower limb, left lower limb and posttraumatic amputation. The Appellant has also produced a Certificate issued by Dhakhin Rehabilitation Centre showing that the prosthesis will have to be changed every 5 years and maintained regularly.
6. The Appellant sought compensation under the Motor Vehicles Act, 1989. The Tribunal at Koraput at Jeypore, Odisha, allowed his claim petition and awarded compensation of Rs.78,82,497/ (rounded off to Rs.78,83,000/). The Tribunal awarded a sum of Rs.16,82,497/ under the head of medical expenses, transport and attendant fees for dressing. Another sum of Rs.26,00,000/ was awarded for the purchase of prosthesis and maintenance. The new 3 prosthesis’ rate which was supposed to to be changed every five years was taken as Rs.5,00,000/. Cost of maintenance of prosthesis was assessed at the rate of Rs.30,000/ per year. The Tribunal also awarded a sum of Rs.27,00,000/ towards loss of future income.
7. While accepting the appeal preferred by the Insurance Company in part, thereby reducing the compensation amount of Rs.56,00,000/, the only reason discernible from the Order passed by the High Court reads as follows: “As the claimant sustained disability to the extent of 97% due to amputation of his right leg and other complications, learned Tribunal has applied the multiplier of `15’ to calculate the loss of income. Taking the notional income of the claimant at Rs.10,000/ per month and adding 50% towards his future prospects, learned Tribunal has awarded Rs.27,00,000/, towards loss of future income. Learned Tribunal has further awarded Rs.16,82,497/ towards medical expenses, transport and attendant charges, Rs.3,00,000/ towards pain and suffering, Rs.2,00,000/ towards future medical expenses and Rs.2,00,000/ towards loss of engagement and marriage prospects.
Law is well settled that pecuniary loss suffered by the claimant is to be assessed on the basis of actual expenses incurred. Therefore, the claimant having filed bills and vouchers to show that he had incurred medical 4 expenses of Rs.10,15,949/, learned Tribunal was not justified in awarding Rs.16,82,497/ towards medical expenses, transport and attendant fees. Moreover there is no basis for assessing the cost of new prosthesis at Rs.5,00,000/ nor there is any basis for calculating medical future expenses at Rs.2,00,000/. Though non pecuniary loss can be assessed on notional basis, the same must have a corelation to the actual cost which an injured may incur in future for treatment of his injuries sustained in the accident. In other words, nonpecuniary loss towards future medical treatment, loss of income towards attendant expenses etc. must have a nexus with the actual rate for incurring such expenses and not on mere assumption. The award of compensation must be just and fair irrespective of the claims made and the same should not be a bonanza for the claimant.”
8. The aggrieved Appellant is before us.
9. We have heard learned counsel appearing for the parties and gone through the record.
10. It may be seen that the High Court has not employed any reasoning, logic or evidence to reduce the cost of a new prosthesis from Rs.5,00,000/ to Rs.2,00,000/. The High Court is also silent regarding its maintenance cost.
11. In our view, the Tribunal was justified in awarding a sum of Rs.20,00,000/ towards cost of new prosthesis at the rate of 5 Rs.5,00,000/ to be changed four times in five years. In other words, the Tribunal awarded this cost component only for 20 years despite the fact that Appellant was hardly of the age of 1516 years old at the time when the Award was passed.
12. There is no rationale for the High Court to reduce the cost of the prosthesis from Rs.20,00,000/ to Rs.5,00,000/.
13. Having held so, the Appellant is indeed entitled to Rs.26,00,000/ towards cost and maintenance of prosthesis and that being so, the compensation amount stands increased from Rs.5,00,000/ (as awarded by the High Court) to Rs.26,00,000/ and excluding a sum of Rs.5,00,000/ awarded by the High Court towards cost of prosthesis, totaling to Rs.71,00,000/.
14. In addition to the above, we hold the Appellant entitled to a sum of Rs.1,00,000/ towards transport expenses and attendant fees for dressing. In this manner, the compensation amount is increased to Rs.72,00,000/ (Rs.71,00,000/+ Rs.1,00,000/)
15. The appeal is, consequently, allowed in the above terms.
16. The Respondent – Insurance Company is directed to release the enhanced compensation of Rs.72,00,000/ along with interest at the rate of Rs.7.5% per annum, to be calculated from the date of application, that is 13.10.2011 till the date of actual payment made to the Appellant. Needless to say, any amount already paid or deposited shall be adjusted while depositing the final compensation 6 awarded by this court which shall be made within a period of six weeks from today.
....................J. (SURYA KANT) ....................J. (M.M. SUNDRESH) NEW DELHI;
12TH OCTOBER, 2022.
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ITEM NO.5 COURT NO.12 SECTION XIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Special Leave Petition © No.24068/2018
G VIVEK Appellant(s)
VERSUS
NATIONAL INSURANCE CO. LTD. & ANR. Respondent(s)
Date : 12102022 This matter was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE M.M. SUNDRESH For Appellant(s) Mr. Kiran Kumar Patra, AOR Mr. Somesh Kumar Dubey, Adv. For Respondent(s) Mr. Abhishek Gola, Adv. Mr. Sudhir Naagar, AOR Mr. Anand Shankar Jha, AOR Mr. Arpit Gupta, Adv.
Ms. Meenakshi G. Sharma, Adv. Mr. Girish Bhardwaj, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed, in terms of the signed Order.
(VISHAL ANAND) (PREETHI T.C.)
ASTT. REGISTRARcumPS COURT MASTER (NSH)
(Signed Order is placed on the file)