Jammu & Kashmir High Court
New India Assurance Co.Ltd. vs Gaurav And Ors. on 21 October, 2016
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CIMA No. 128/2012
MP No. 1/2016
Date of Order: 21.10.2016
New India Ass. Co. Ltd. vs. Gaurav & ors.
Coram:
Appearing Counsel:
For the Appellant(s): Mr. R. K. Gupta, Sr. Advocate with
Mr. Prem Sadotra, Advocate.
For the Respondent(s): Ms. Radha Sharma, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal-Net
1. Appellant-Insurance Company has challenged the Award only on the quantum. The finding on negligence and the liability of the Insurance Company to compensate the claimants is not disputed.
2. Accident in this case happened on 21.12.2007. Gaurav- claimant, a 22 years young man running a photoshop, was traveling in the matador bearing No. JK02F-3266 and on reaching Sarore Adda, a vehicle bearing No.PB-07-R-5699 going from Jammu towards Vijaypur collided with the said matador. As a result the claimant was injured. He suffered cervical spine injury with quadriplegia. Injured was hospitalized for 21 days from December 2007 to February 04, 2008. He claimed compensation of Rs. 34.00 lacs and has been awarded Rs. 25.00 lacs in the following manner:
2S.No. Head Award
1. For loss of future income Rs. 11,52,000/-
2. For pain and sufferings Rs. 2,25,000/-
3. For loss of amenities of life Rs. 2,00,000/-
4. Expenses incurred on medicines & Rs. 1,00,000/-
Physiotherapy
5. Future expenses to be incurred on medicines Rs. 2,00,000/-
and physiotherapy
6. Transport charges incurred Rs. 38,000/-
7. Future transport charges Rs, 75,000/-
8. Attendant charges incurred Rs. 72,000/-
9. Future attendant charges Rs.2,88,000/-
10. Special diet charges Rs. 50,000/-
11. Future Special diet charges Rs. 1,00.000/-
Total Rs. 25,00,000/-
With interest @ 7.5% per annum
3. In appeal the learned counsel for the appellant-Insurance Company contended those additional claims were made in the claim petition, without any supporting material or evidence. The Tribunal has granted exorbitant amounts under several heads. To be specific the compensation under the following Heads is pleaded as not justified:
Head 1. Loss of income determined is excessive Head 2 & The award is exorbitant under these two heads.3
Head 4 & The award is in excess as against the bills. No proper 5 documentary proof has been placed in support. Head 6 to The additional amounts have been granted as against the claim 9 made in the petition.
Head 10 Under these heads the amount has been granted are excessive & 11 and not commensurate with the nature of injury.
3. Considering the young age of injured/claimant the nature of injury, the witness examined to support the claim, the Tribunal took into consideration the evidence of the claimant, i.e., Dr. I. K. Wangnoo, Pw-Bua Ditta who issued Disability certificate. Except 3 petitioner no other witness was examined to say about the future expenses that is to be incurred for diet charges, etc. � Loss of future income Insofar as this Head is concerned due to nature of accident and injuries suffered, disability is 100%. Therefore, the sum of Rs. 11,52,000/- fixed as compensation based on loss of earning capacity due to injury and 100% disability appears to be justified. Even though Rs.6000/- per month is objected as excessive, however the possibility of a young earning higher income in future cannot be ruled out. Hence, the sum of Rs.11, 52,000/- stands confirmed.
� Pain and suffering The Tribunal has granted Rs.2,25,000/- as against claim of Rs.5,00,000/-. The Tribunal has taken into consideration the 100% disability suffered, the nature of injury, i.e., cervical spine injury with quadriplegia, whereby the injured is unable to walk as before. There will be pain and suffering for the rest of his life. Therefore, this Court finds no reason to reduce the quantum any further and the same stands confirmed.
� Loss of amenities of life Considering the nature and injury and 100% immobility, the Tribunal granted Rs. 2,00,000/- which is not excessive and the same is confirmed.
� Expenses incurred on medicines & Physiotherapy & Future expenses to be incurred on medicines and physiotherapy Insofar as medicines and physiotherapy, Rs. 1,00,000/- has been granted as against Rs.42,000/- which is supported by Medical 4 bills and Rs. 2,00,000/- for future expenses to be incurred on medicines and physiotherapy has been granted. Assuming that some amount is expended for physiotherapy at best it could be around Rs. 75,000/-. The Tribunal has also granted substantial amount for future medical expenses towards medicine and physiotherapy. There again no evidence is let in. Keeping that in mind the expenses required for physiotherapy during the time of treatment, the amount is reduced to Rs. 75,000/- as against Rs. 1.00 lac granted. For future medical expenses and physiotherapy, it is fixed at Rs.1.00 lac as against Rs. 2.00 Lac.
� Transport charges incurred and Future Transport charges Insofar as transport charges both during the time of treatment and for future as against the claim of Rs. 50,000/-, the Tribunal has granted Rs. 38,000/- + Rs. 75,000/-. By the nature of injury suffered and the prolonged nature of ailment, the said sum of Rs. 38,000/- + Rs. 75,000/- is not excessive because the injured claimant has to necessarily depend on other persons and alternatives to transport himself. He cannot move around on his own, therefore, the said sum stands confirmed.
� Attendant charges incurred and future attendant charges On this head, the Tribunal has granted Rs. 72,000/- during the period of treatment. For future attendant charges Rs. 2,88,000/- has been granted. This appears to be without any basis or evidence. No doubt he would need an attendant but amount has to be just and reasonable. As against the claim of Rs. 50,000/- , the sum of Rs. 72,000/- has been granted during for the period of treatment. For future attendants charges also some amount has to 5 be granted that should be reasonable and based on evidence. The Tribunal has granted Rs. 2, 88,000/-. Keeping in mind the young age of claimant and the award in other respects is reduced to Rs. 1,50,000/-. Rs. 72,000/- granted for attendant charges during treatment is confirmed.
� Special diet charges and future special diet charges Insofar as special diet is concerned, Rs. 50,000/- was granted during the period of treatment and for future special diet charges Rs. 1,00,000/- has been granted as against a total claim of Rs. 1,00,000/-. There again the Tribunal without any evidence or material has granted the two amounts. However, keeping in mind the nature of injury and the young age, the special diet charges Rs.50,000/- granted during the treatment is confirmed but insofar as future special diet is concerned it is reduced to Rs. 50,000/-.
Head Award Modified Award S.No
1. For loss of future income Rs. 11,52,000/- Rs. 11,52,000/- confirmed
2. For pain and sufferings Rs. 2,25,000/- Rs. 2,25,000/- Confirmed
3. For loss of amenities of Rs. 2,00,000/- Rs. 2,00,000/- Confirmed life
4. Expenses incurred on Rs. 1,00,000/- Rs. 75,000/- Reduced medicines & Physiotherapy
5. Future expenses to be Rs. 2,00,000/- Rs. 1,00,000/- Reduced incurred on medicines and physiotherapy
6. Transport charges Rs. 38,000/- Rs. 38,000/- Confirmed incurred
7. Future transport charges Rs, 75,000/- Rs, 75,000/- Confirmed
8. Attendant charges Rs. 72,000/- Rs. 72,000/- Confirmed incurred
9. Future attendant charges Rs.2,88,000/- Rs.1,50,000/- Reduced
10. Special diet charges Rs. 50,000/- Rs. 50,000/- Confirmed
11. Future Special diet Rs. 1,00.000/- Rs. 50,000/- Reduced charges Total Rs. 25,00,000/- Rs. 21,87,000/- (Rupees Twenty Rupees Twenty One lac eighty seven thousand five Lacs only only) 6
4. Accordingly, the appeal stands allowed and the award is modified as above. The claimant will be entitled to withdraw the amount on deposit. Insurance Company is directed to deposit the amount with interest, if not already deposited.
(Ramalingam Sudhakar) Judge Jammu:
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