# H.D.F.C. ERGO General Insurance Co. Ltd v. Sarthak Jain & Ors

- **Citation:** (2020) 9 ILRA 187
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-18
- **Case number:** First Appeal From Order Defective No. 1270 of 2019
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/h-d-f-c-ergo-general-insurance-co-ltd-v-sarthak-jain-ors-45927
- **Pages:** 11

## Headnote

A. Civil Law -Motor Accident Claim -
Defects in vehicle fitness certificate - Question
never pressed before the tribunal - No issue has
been framed regarding this point of vehicle
fitness certificate and the route permit of the
truck - No evidence has been led by the
Insurance Company to prove that there was
sufficient evidence and the tribunal failed to
consider the same - Held, No such issue can be
framed in appeal. (Para 18 and 19)

B. Civil Law -Motor Accident Claim - 100%
Disability - Computation of Compensation -
Factors required to be considered - If the
person dies, it comes as a cyclonic blow to the
family that everybody seems to be ruined for a
moment but gets recovered with the passage of
time - But in a case of injury if a person is
reduced to a stage where he is completely bed
ridden and not able to speak, nor eat himself
and half of the body is paralysed then it causes
death everyday to the members of the family -
It is not a death of one person but it reduces
the entire family to go under the trauma every
moment of every hour, every day and such a
situation can be said to be the worse than that
of a death of a person - Court found no error in
award. (Para 20)

Appeal dismissed. (E-1)

Cases relied on :-

## Text

9 All. H.D.F.C. EGRO General Insurance Co. Ltd. Vs. Sarthak Jain & Ors.
187
(2020)09ILR A187
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

First Appeal From Order Defective No. 1270 of
2019

H.D.F.C. ERGO General Insurance Co. Ltd.
 ...Appellant
Versus
Sarthak Jain & Ors. ...Respondents

Counsel for the Appellant:
Sri Sushil Kumar Mehrotra

Counsel for the Respondents:
Sri Vidya Kant Shukla, Sri Vipin Chandra
Dixit

A. Civil Law -Motor Accident Claim -
Defects in vehicle fitness certificate - Question
never pressed before the tribunal - No issue has
been framed regarding this point of vehicle
fitness certificate and the route permit of the
truck - No evidence has been led by the
Insurance Company to prove that there was
sufficient evidence and the tribunal failed to
consider the same - Held, No such issue can be
framed in appeal. (Para 18 and 19)

B. Civil Law -Motor Accident Claim - 100%
Disability - Computation of Compensation -
Factors required to be considered - If the
person dies, it comes as a cyclonic blow to the
family that everybody seems to be ruined for a
moment but gets recovered with the passage of
time - But in a case of injury if a person is
reduced to a stage where he is completely bed
ridden and not able to speak, nor eat himself
and half of the body is paralysed then it causes
death everyday to the members of the family -
It is not a death of one person but it reduces
the entire family to go under the trauma every
moment of every hour, every day and such a
situation can be said to be the worse than that
of a death of a person - Court found no error in
award. (Para 20)

Appeal dismissed. (E-1)

Cases relied on :-

1. Babli Dixit & anr. Vs Satendra Kumar, 2018
SCC Online (Del)13153
2. M.R. Krishna Murthi Vs The New India
Assurance Company Ltd. & ors. AIR (2019) SC
5625
3. Raj Kumar Vs Ajai Kumar & anr. (2011)1 SCC,
343
4. H.D.F.C Ergo General Insurance Co. Ltd. Vs
Rattan Kumar Dwivedi (2017) SCC Online, Delhi
9874
5. United India Insurance Company Ltd. Vs
Anita (2017) SCC Online Delhi 11152
6. Municipal Corporation of Delhi Vs Association
of Victims of Uphaar Tragedy (2011)17SCC 481

(Delivered by Hon'ble Ramesh Sinha, J.
Hon'ble Ajit Kumar, J.)

1. Heard Sri Sushil Kumar Mehrotra,
learned counsel for the appellant and Sri
Vidya Kant Shukla, learned Counsel for the
Claimant-respondent no.1.

2. This First Appeal From order is
directed against the award dated 6.7.2019
passed by the Motor Accident Claims
Tribunal/Additional District Judge, Court
No.13, Meerut allowing the claim petition
of the claimant-respondent no.1, bearing
number 524 of 2020 for compensation of
Rs.66,39,947/-.

3. Briefly stated facts of the case are
that the injured Sarthak Jain met with an
accident on 2.5.2017 with a truck while he
was driver upon a motorcycle of his friend
Pranay Bist and the injured was moving in
a right direction to the left of the road
188 INDIAN LAW REPORTS ALLAHABAD SERIES
whereas truck driver was driving the truck
rashly and hit the motorcycle. The truck
driver immediately fled the spot. The
injured fainted and was immediately taken
to the hospital and went under treatment.
The impact of the injury upon the injured
was of the nature and decree that he
suffered disability to the extent of 100%
and motor system disability to the extent of
75%. The speech disability was also found
to be too severe to the extent of 100% and
100% is the post head injury resulting in
fits. Motor system disability is 75%.
Bladder disability is 100%. So in the
language of the medical practitioner, the
highest score of disability is 100%. It has
come to be established on record that the
injured at the time of accident was 21 years
of age and was a student of B.Tec. 2nd
year. The tribunal framed as many as seven
issues for determination which are quoted
as under:-

A. Whether the driver of the truck
No.U.P-17-AT-1888 was driving the truck
rashly
and
negligently
and
hit
the
motorcycle of the injured as a result of such
driving on 2.5.2017.

B. Whether the driver of the
motorcycle was having valid driving
licence.

C. Whether the truck driver was
having valid licence.

D. Whether the truck U.P.17-AT1888 was duly ensured with HDFC Ergo
General Insurance Company Ltd.

E. Whether it is a case of
contributory negligence of the two vehicle
drivers and if so what would be the effect.

F. Whether the Claim Petition
was liable to be dismissed for non-joinder
of necessary parties.

G. Whether the claimant is
entitled for any compensation and if yes to
what amount.

4. Both the Insurance Company as
well as the claimant led their evidence in
the matter. The Tribunal discussed and
decided issue no.1 and 5 together as they
are related to each other.

5. Discussing the oral as well as
documentary evidence led in regard to the
above two issues. The Claims Tribunal
recorded a categorical finding to the effect
that
soon
after
the
accident,
First
Information Report (for short FIR) was
lodged against the driver of the truck
namely Shadab under Section 279, 337,
338 and 427 of Indian Penal Code and in
which the charge sheet had also been
submitted by the police.

6. The tribunal relied upon the
testimony of P.W.2 namely Pranay Bist who
was driving the motorcycle being an
independent witness account of the incident
and who in his testimony has clearly narrated
that the was driving a motorcycle on left side
of the road and the truck driver while rashly
and negligently driving the truck, hit the
motorcycle from the wrong side and the truck
driver soon thereafter fled the scene. Then the
Tribunal relied upon the spot inspection
memo from which it could be clearly located
that the truck was almost moving in the
middle of the road and hit the motorcycle
which was coming from the opposite
direction by taking the truck virtually across
the road and, therefore, the Tribunal arrived
at conclusion that there was no contributory
negligence on the part of the motorcyclist in
the accident and it was all due to rash and
negligent driving of the truck driver. The
Tribunal held that since the conduct of the
truck driver in running away from the scene
clearly established that he was at wrong and
there was no evidence much less a substantial
one of false implication of the truck driver in
the incident.
9 All. H.D.F.C. EGRO General Insurance Co. Ltd. Vs. Sarthak Jain & Ors.
189

7. The issue no.2 is decided in the
affirmative that the motorbike rider who
was driving the vehicle was in possession
of a valid driving license.

8. On issue no.3 also it was held that
looking to the driving license it was clearly
established that the truck driver was also
having valid driving license.

9. On issue no.4 also court relied
upon the insurance policy and held that the
insurance cover was w.e.f 16.2.2017 to
15.2.2018 and since the incident took place
on 2.5.2017, the vehicle was fully ensured
on the said date.

10. On the question of issue no.6 the
driver held to be not having any substance
and so decided in the negative and on the
question of compensation while deciding
issue no.7, the court held that initially the
injured was admitted to the Kailashi
Hospital, Meerut where he was operated by
Dr. Vipul Tyagi and as the condition
started worsening, he was taken to Delhi on
7.5.2017 and was admitted in the Apollo
Hospital and remained there from 8.5.2017
till 24.7.2017. In Delhi hospital surgery
was done upon him and after some time he
was again admitted to the hospital from
18.1.2018 till 23.1.2018. The tribunal has
come to record the finding of fact that
though the operation had been conducted
upon the injured but injured left side had
paralysed and was not able to rise from the
bed and everything was carried on the bed
itself. He was being fed by some other
person and not able to conduct even his
daily routine.

11. The tribunal examined various receipts
and the prescriptions papers led in evidence
before it about about the expenses incurred in the
operation and the medicines etc.

12. P.W.3 Mukesh Kumar was directed
by the Deputy Director of the Apollo
Hospital to be present before the tribunal and
place the records relating to the admission,
surgery etc. and the medication done upon
the injured. The tribunal relied upon those
documents which were not only duly certified
even but even proved by the officer
concerned who was sent by the Deputy
Director of the Apollo Hospital for the said
purpose. So the bills and expenses incurred
upon
the
treatment
of
injured
was
Rs.3,32,895/- vide receipt no.18C/88 which
bears the signature of the cashier of the
Hospital Mr. Dinesh Kumar and so far as bill
dated 24.7.2017 is concerned, the total bill
was 15,64,460/- in which payment was made
up-to 70,140/- and there was bill dated
17.9.2017 for Rs.13,03,180/- out of which
Rs.3,00,000/- were paid vide receipt no.18-C
dated 23.1.2018 and yet another bill was
generated dated 23.1.2018 for Rs.4,02,085
out of which Rs.28,420 was paid. So the
tribunal calculated the entire expenses
incurred upon the treatment of the injured
both in Kailashi Hospital, Meerut and also in
Apollo Hospital, Delhi and the other bills of
medicines etc. and total expenses incurred
was found to the extent of Rs.15,28,947/-.
The tribunal held that the insurance company
could not dispute all the bills nor, could
establish that those bills in any manner were
forged or fraudulent. The tribunal recorded
that the condition of the injured clearly
established that he had suffered maximum
disability which also got fully proved from
the testimony of P.W.1 and other certificates
of treatment as well as medical certificate of
the patient.

13. Considering the entire evidence
led by the claimant in respect of the
treatment of the injured, medical certificate
and the medical reports, the tribunal came
to the conclusion that the injured suffered
190 INDIAN LAW REPORTS ALLAHABAD SERIES
from 100% disability. The injured was the
student of B.Tech MIET, Meerut which has
not been disputed by any one. Relying upo
the judgement of Delhi High Court in the
case of Babli Dixit and another Vs.
Satendra Kumar, 2018 SCC Online
(Del)13153 wherein the monthly income of
the
injured
was
determined
to
be
Rs.20,000/- who was B.Tech student. The
tribunal determined the monthly income of
the
injured
as
R.15,000/-
and
thus
Rs.1,80,000/- per annum and since the
injured has suffered disability of 100%, his
income
has
been
assessed
to
be
Rs.1,80,000/- without any deduction. The
multiplier of 18 has been applied. 40% as
future prospects has been added and so
annual income has come to be assessed of
Rs.2,52,000/-. Towards the pain and
suffering
and
loss
of
amenities
Rs.2,00,000/- have been added, towards
future medical expenses 2,50,000/- has
been added, towards loss of amenities
Rs.2,50,000/- has been added, for external
nourishment Rs.25,000/- has been added
and
Rs.1,00,000/-
towards
attendant
charges
have
been
added.
Total
compensation there that has been computed
is Rs.66,39,947/- to be paid to the injured.
However, Rs.30,00,000/- has been directed
to be deposited in the FDR for a period of
three years.

14. Assailing the aforesaid, three
arguments have been advanced by learned
counsel
for
the
appellant;
one
is
contributory negligence, secondly vehicle
had no permit; and had no statutory
certificate and then the third one is that
quantum of the compensation is too high in
case of injured.

15. As far as the arguments of
contributory negligence is concerned, we
made a pointed query to the learned
counsel for the appellant as to how could
he show from the site plan that the findings
returned by the tribunal is perverse on the
said issue which was decided as issue no.5
along with issue no.1, learned counsel for
the appellant submitted that though the site
plan has not been brought on record but
from the discussions and the order of the
tribunal it is clearly revealed that the truck
had hit from the side of the motorcyclist
and, therefore, it was a case where the
motorcycle and truck were moving in the
same direction and, therefore, according to
the learned counsel for the appellant, the
finding of the tribunal that there was no
case of contributory negligence is perverse.
In order to test this argument we took our
scanning eyes again through the findings of
the tribunal on issue no.1 and 5. It is a fact
admitted to the parties that the Pranay Bist
who was the friend of injured was the
pillion rider on a motorcycle which was
being driven by the injured. There is no
other eye-witness account of the incident.
The insurance Company has also did not
get any witness examined to establish as an
independent
witness
account
of
the
incident. So the testimony of Pranay Bist
become significant to arrive at a conclusion
as to in what manner the accident occurred.
Pranay Bist in his testimony has clearly
stated that on 2.5.2017 at 9.30 hours in the
morning while he along with his friend
Sarthak Jain, the injured were going from
Pallavpuram to MIET College Bye-Pass,
Meerut that a truck No. U.P.17-AT-1888
being driven quite rashly and negligently,
hit the motorcycle by coming to a wrong
side and that it hit the motorcycle from the
front. Soon thereafter the truck driver fled
the scene. Both Pranay Bist and the injured
were studying in the B.Tech. 2nd year.
Even in the cross-examination, he stated
that at 10 a.m. there was exam and at
around 9.20 when they reached bye pass of
9 All. H.D.F.C. EGRO General Insurance Co. Ltd. Vs. Sarthak Jain & Ors.
191
Pallavpuram square and were about to
move on the Sardhana flyover, that they
had seen the truck at some distance and that
the front part of the truck of the driver side
had hit the motorcycle. Sarthak had the
helmet on his head but suffered fracture
and soon he took the injured to the Kailashi
Hospital.

16. These statements made in the
testimony of the Pranay Bist have got fully
corroborated by the spot inspection memo
because in the spot inspection memo also
as the tribunal has discussed, it is clearly
reflected that the truck was on the middle
of the road and immediately it turned to the
right and hit the motorcycle while coming
on the other side and the motorcyclist was
already on his left, so naturally and rightly
so, the conclusion is drawn that the truck
hit the motorcycle from the front side and it
was the fault of the truck driver alone that
resulted in the accident and this is also
further established from the conduct of the
truck driver who immediately fled the
scene. Had the motorcycle dashed into the
truck, the situation would have been
otherwise and then the motorcyclist would
have dashed not from the front side but
from the back side but this is not the case
of the Insurance Company nor, the
Insurance Company has led any evidence
to establish that the spot inspection memo
was wrongly prepared or that the testimony
of the witness account of the incident was
not trustworthy. Even before us the counsel
for the Insurance Company could not
dispute the spot inspection memo and the
statement of fact recorded by the tribunal
on the basis of testimony of the eye-witness
account namely P.W.2.

17. In such above view of the matter,
therefore, the findings on issue no.1 and 5
particularly issue no.5 as has been
questioned by the learned counsel for the
Insurance Company, cannot be held to be
perverse and the argument, therefore is
rejected.

18. In so far as issue no.2 is
concerned, we find that there is nothing on
record to establish that this question was
ever pressed before the tribunal because no
issue has been framed regarding this point
of vehicle fitness certificate and the route
permit of the truck nor, any evidence has
been led by the Insurance Company to
prove that there was sufficient evidence
and the tribunal failed to consider the same.
All that has been argued before this Court
is that in the written statement there was
specific plea taken by the Insurance
Company but while going through the
entire written statement that has been
appended to the affidavit filed in support of
this appeal as annexure no.2, we do not
find that any such additional plea was taken
before the tribunal and so consequently and
rightly the tribunal did not frame any issue.
Even otherwise if the plea was taken, it was
the duty of the Insurance Company to have
pressed the issue and if not framed, to make
appropriate application but we find that the
objection of route permit and fitness
certificate have been very casually taken as
a
general
objections
in
the
written
statement. Had the Insurance Company ben
serious about this point, it would have
taken it as an additional plea in the written
statement and would have insisted upon the
tribunal to frame issue in that regard.

19. In such above view of the matter,
we now in this appeal are not inclined to
frame any such issue nor, we find any
argument supported by any material
evidence in support thereof is brought on
record in the present appeal to demonstrate
that the truck did not have route permit or
192 INDIAN LAW REPORTS ALLAHABAD SERIES
suffered from the fitness. This second
argument is, therefore, rejected.

20. Now coming to the third argument
regarding
the
computation
of
compensation, we have noticed in this
regard that the medical certificate clearly
demonstrate that the injured suffered
almost 100% disability. Even if there is
locomotive activity in the sense that parts
are moving a little bit but if a person is
suffering from paralysis and is not able to
speak a word as he suffers from 100%
disability and he also suffers from the fits
due to head injury and is not able to eat
himself, it is a case of vegetative stage. If
the person dies, it comes as a cyclonic blow
to the family that everybody seems to be
ruined for a moment but gets recovered
with the passage of time but in a case of
injury if a person is reduced to a stage
where he is completely bed ridden and not
able to speak, nor eat himself and half of
the body is paralysed then it causes death
everyday to the members of the family. It is
not a death of one person but it reduces the
entire family to go under the trauma every
moment of every hour, every day and such
a situation can be said to be the worse than
that of a death of a person. In the present
case we find that despite heavy medical
treatment carried out where huge medical
expenses have been incurred and yet body
of injured is reduced to status of a dead
wood. A body lying on a bed always
needing an attendant by his side with
recurring other medical expenses and that
too at an early age of 21, is all very painful
beyond imagination. How long such a
person will continue when he is suffering
from such a condition at a young age,
nobody knows and, therefore, in our
considered
opinion
in
the
various
categories and heads, the amount of
compensation which has been determined
is quite reasonable one and does not require
any interference.

21. In the Case of M.R. Krishna
Murthi Vs. The New India Assurance
Company Ltd. and ors AIR (2019) SC
5625 (wherein the court was dealing with
the issue of further loss of earning in case
of serious disability) the Apex Court
referred to the judgement of Raj Kumar
Vs. Ajai Kumar and another (2011)1
SCC, 343 vide paragraph no.22 and 23 that
are as under:-

22) In the case of Raj Kumar v.
Ajay Kumar & Anr., (2011) 1 SCC 343,
where the victim suffered 45% disability to
left lower limb and permanent functional
disability of 25%, the Court held that it is a
functional disability which would be the
operative criteria for assessing the loss of
future earnings and not physical disability.
There is a detailed and lucid discussion of
assessment of future loss of earning due to
permanent disability, covering all possible
facets and discussing every nuance of the
subject
matter.
After
explaining
the
meaning of permanent disability and
contrasting it with temporary disability and
also the manner in which permanent
disability of different limbs expressed by
Doctors in the Disability Certificates is to
be interpreted, the Court clarified that the
assessment of compensation under the head
of loss of future earnings would depend
upon the effect and impact of such
permanent
disability
on
his
earning
capacity. The manner in which the
assessment is to be carried out is contained
in the following passages in the said
judgment:

"12. Therefore, the Tribunal has
to first decide whether there is any
permanent disability and, if so, the extent
of such permanent disability. This means
9 All. H.D.F.C. EGRO General Insurance Co. Ltd. Vs. Sarthak Jain & Ors.
193
that the Tribunal should consider and
decide with reference to the evidence:

(i) whether the disablement is
permanent or temporary;

(ii)
if
the
disablement
is
permanent, whether it is permanent total
disablement
or
permanent
partial
disablement;

(iii) if the disablement percentage
is expressed with reference to any specific
limb, then the effect of such disablement of
the limb on the functioning of the entire
body, that is, the permanent disability
suffered by the person.

If the Tribunal concludes that
there is no permanent disability then there
is no question of proceeding further and
determining the loss of future earning
capacity. But if the Tribunal concludes that
there is permanent disability then it will
proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of
permanent disability of the claimant based
on the medical evidence, it has to
determine
whether
such
permanent
disability has affected or will affect his
earning capacity.

13. Ascertainment of the effect of
the permanent disability on the actual
earning capacity involves three steps. The
Tribunal has to first ascertain what
activities the claimant could carry on in
spite of the permanent disability and what
he could not do as a result of the permanent
disability (this is also relevant for awarding
compensation under the head of loss of
amenities of life). The second step is to
ascertain his avocation, profession and
nature of work before the accident, as also
his age. The third step is to find out
whether (i) the claimant is totally disabled
from earning any kind of livelihood, or (ii)
whether
in
spite
of
the
permanent
disability,
the
claimant
could
still
effectively carry on the activities and
functions, which he was earlier carrying on,
or (iii) whether he was prevented or
restricted from discharging his previous
activities and functions, but could carry on
some other or lesser scale of activities and
functions so that he continues to earn or
can continue to earn his livelihood.

xx xx xx

19. We may now summarise the
principles discussed above:

(i) All injuries (or permanent
disabilities arising from injuries), do not
result in loss of earning capacity.

(ii) The percentage of permanent
disability with reference to the whole body
of a person, cannot be assumed to be the
percentage of loss of earning capacity. To
put it differently, the percentage of loss of
earning capacity is not the same as the
percentage of permanent disability (except
in a few cases, where the Tribunal on the
basis of evidence, concludes that the
percentage of loss of earning capacity is the
same as the percentage of permanent
disability).

(iii) The doctor who treated an
injured claimant or who examined him
subsequently to assess the extent of his
permanent disability can give evidence
only in regard to the extent of permanent
disability. The loss of earning capacity is
something that will have to be assessed by
the Tribunal with reference to the evidence
in entirety.

(iv)
The
same
permanent
disability
may
result
in
different
percentages of loss of earning capacity in
different persons, depending upon the
nature of profession, occupation or job,
age, education and other factors."

23) From the conjoint reading of
the
aforesaid
judgments,
inter
alia,
following principles can be culled out
which would be relevant for deciding the
instant appeal:
194 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) In those cases where the
victim of the accident is not an earning
person but a student, while assessing the
compensation for loss of future earning, the
focus of the examination would be the
career prospect and the likely earning of
such a person in future. For example, where
the claimant is pursuing a particular
professional course, the poseer would be:
what would have been his income had he
joined a service commensurating with the
said course. That can be the future earning.

(ii) There may be cases where the
victim is not, at that stage, doing any such
course to get a particular job. He or she
may be studying in a school. In such a case,
future career would depend upon multiple
factors
like
the
family
background,
choice/interest of the complainant to pursue
a particular career, facilities available to
him/her for adopting such a career, the
favourable surrounding circumstances to
see which would have enabled the claimant
to successfully pick up the said career etc.
If the chosen field is employment, then the
future earning can be taken on the basis of
salary and allowances which are payable
for such calling. In case, career is a
particular profession, the future earning
would depend on host of other factors on
the basis of which chances to achieve
success in such a profession can be
ascertained.

(iii) There may be cases like Deo
Patodi where even a student, the claimant
would have made earnings on part-time
basis or would have received offer for a
particular job. In such cases, these factors
would also assume relevance.

(iv) After ascertaining the likely
earning of the victim in the aforesaid
manner, the nature of injuries and disability
suffered as a result thereof would be kept in
mind while determining as to how much
earning has been affected thereby. Here,
impact of injuries on functional disability is
to be seen. In case of death of victim, it
would result in total loss of earning. In the
case of injuries, the nature of disability
becomes important. Such an exercise was
undertaken in N. Manjegowda case.

22. The tribunal in the present case
has relied upon the judgment of Delhi High
Court in the case of Babli Dixit and
another Vs. Satendra Kumar and ors.
(Iffco Tokio General Insurance Co. Ltd.)
wherein Midha, J. referred to judgement
of Delhi High Court in the case of H.D.F.C
Ergo General Insurance Co. Ltd. Vs.
Rattan Kumar Dwivedi (2017) SCC
Online, Delhi 9874 and another Judgement
of Delhi High Court in the case of United
India Insurance Company Ltd. Vs. Anita
(2017) SCC Online Delhi 11152 vide
paragraph nos.11, 12 and 13 that run as
under:-

11. In HDFC Ergo General
Insurance Co. Ltd. v. Rattan Kumar
Dwivedi, 2017 SCC OnLine Del 9874, the
accident dated 21st July, 2008 resulted in
the death of a national level sportsperson
who was a student of B. Com. (Hons.). The
Claims Tribunal awarded Rs.10,40,000/- by
taking the earning capacity of the deceased
as Rs.10,000/- per month which was
challenged on the ground that minimum
wages should have been applied by the
Claims Tribunal. Applying the principles
laid down by the Supreme Court in
Municipal
Corporation
of
Delhi
v.
Association of Victims of Uphaar Tragedy,
AIR 2012 SC 100, this Court rejected the
application of minimum wages to such
cases. Considering the brilliant record of
the student as a sportsperson, this Court
determined the earning capacity of the
deceased as Rs.25,000/- per month and
enhanced
the
compensation
from
9 All. H.D.F.C. EGRO General Insurance Co. Ltd. Vs. Sarthak Jain & Ors.
195
Rs.10,40,000/-
to
Rs.24,50,000/-.
The
relevant portion of the judgment is as
under:

"14. In the present case, the
deceased Apoorva Dwivedi was a student
of B.Com (Hons.) at Bharti College, Delhi
University. She was a sports person having
won 86 prizes/certificates in athletics, track
and field, gymnastics, baseball, soft ball,
basketball, cricket etc. The deceased had
secured second place in team event at 40th
Delhi State Gymnastics Championship,
2001; best athlete of the year 2003-2004 at
school and zonal level and first position in
baseball in 52nd National School Games
conducted by School Games Federation of
India held from 23rd December to 28th
December, 2006. The deceased was sports
captain of Holy Child Senior Secondary
School, Tagore Garden, New Delhi for the
academic year 2007-08. Judicial notice is
taken of the notifications for government
job
for
sports
persons
as
well
as
advertisements in private jobs for sports
persons, under which a graduate sports
person can secure a job with a job in the
pay scale of Rs.30,000/- to Rs.40,000/- per
month. Considering that the deceased was a
sports person with an extraordinary talent
in various sports, namely, athletics, track
and field, gymnastics, baseball, soft ball,
basketball, cricket etc. and having been
awarded
86
prizes/certificates,
it
is
presumed that the deceased would have
earned
Rs.25,000/-
per
month
after
completing her graduation. Deducting 50%
towards the personal expenses of the
deceased and applying the multiplier of 14
according to the age of her mother, the loss
of
dependency
is
computed
as
Rs.21,00,000/- [(Rs.25,000- 50%)x12x14].
The compensation for loss of love and
affection is enhanced from Rs.25,000/- to
Rs.1,00,000/-; and compensation for pain
and suffering is enhanced from Rs.25,000/-
to Rs.1,00,000/-. Adding Rs.1,30,000/-
towards medical expenses and Rs.20,000/-
towards
funeral
expenses,
total
compensation
is
computed
as
Rs.24,50,000/- [21,00,000/- + 1,00,000/- +
1,30,000/- + 1,00,000/- + 20,000/-]. The
Claims Tribunal has awarded interest @
7.5% per annum which is on a lower side
considering that the Supreme Court as well
as this Court are consistently awarding
interest @ 9% per annum. The rate of
interest is enhanced from 7.5% to 9% per
annum."

12. In HDFC Ergo General
Insurance Co. Ltd. Lalta Devi, 2015 ACJ
2526, the accident dated 19th June, 2011
resulted in the death of a third year student
of B. Tech. The Claims Tribunal awarded
compensation of Rs. 19,50,000/- by taking
the earning capacity of the deceased as Rs.
25,000/-
per
month.
The
insurance
company and the claimants both challenged
the award before this Court. This Court
held the earning capacity of the deceased to
be Rs.26,815/- per month by relying on the
basis pay of a junior engineer and the
compensation amount was enhanced from
Rs. 19,50,000/- to Rs.22,94,871/-.

13. In United India Insurance
Company Limited v. Anita, 2017 SCC
OnLine Del 11152, the accident dated 16th
June, 2009 resulted in the death of a 21
year old student of B. Tech. (Mechanical
and Automation Engineering). The Claims
Tribunal awarded Rs.34,65,689/- by taking
the earning capacity of the deceased as
Rs.26,815/- per month and 50% future
prospects thereon, which was challenged
by the insurance company. This Court
upheld the award of the Claims Tribunal
and dismissed the appeal. The relevant
portion of the judgment is as under:

"5. The Claims Tribunal took the
income of the deceased as Rs.26,851/-
following the judgment of this Court in
196 INDIAN LAW REPORTS ALLAHABAD SERIES
HDFC Ergo General Insurance Co. Ltd.
v. Lalta Devi, 2015 ACJ 2526 in which
this Court took the income of a B.Tech
third year student in a similar university as
Rs.26,851/- according to the salary drawn
by a Junior Engineer. The learned Tribunal
has also taken into consideration that the
deceased had passed the 5th semester in
December 2008 and had received the
approval for six weeks industrial training
with Indian Airlines. The Claims Tribunal
also considered the mark sheets of the
deceased for 3rd, 4th and 5th semester
along with certificate of excellence for 3rd
semester and deceased had stood first in the
3rd semester examination in December,
2007. The Claims Tribunal also considered
the statement of PW-2 who was a class
fellow of the deceased and had initially
joined Maxim Group in 2011 at a monthly
salary
of
Rs.16,000/-
as
Production
Engineer and thereafter, another company
with a package of Rs.4,34,000/- per annum
with 18% increment in the salary.

6. This Court is of the view that
the income of the deceased computed by
the Claims Tribunal and the future
prospects added thereon are fair and
reasonable and does not warrant any
interference."

23. Finally, while computing the
compensation Midha, J. referred to the
judgement of Apex Court in the case of
Municipal Corporation of Delhi Vs.
Association
of
Victims
of
Uphaar
Tragedy (2011)17SCC 481 vide para
no.16 thus:-

16. There is no merit in the
contention of the insurance company that
the compensation be computed by taking
the minimum wages of Rs.11,414/- per
month as the income of the deceased. The
law is well settled that it is not mandatory
to resort to minimum wages to compute the
compensation in each and every case.
Reference
is
made
to
Municipal
Corporation of Delhi v. Association of
Victims of Uphaar Tragedy (supra), in
which 59 persons died in 1997 and the
Supreme Court granted compensation of
Rs.10,00,000/- to the victims above 20
years of age by taking their income as
Rs.8,333/-
per
month
whereas
the
minimum wages at the relevant time were
less than Rs.2600/- per month. The relevant
portion of the judgment is as under:

"38. ... It can be by way of
making monetary amounts for the wrong
done or by way of exemplary damages,
exclusive of any amount recoverable in a
civil action based on tortuous liability. But
in such a case it is improper to assume
admittedly without any basis, that every
person who visits a cinema theatre and
purchases a balcony ticket should be of a
high income group person. In the year
1997, Rs. 15,000 per month was rather a
high income. The movie was a new movie
with patriotic undertones. It is known that
zealous movie goers, even from low
income groups, would not mind purchasing
a balcony ticket to enjoy the film on the
first day itself. To make a sweeping
assumption
that
every
person
who
purchased a balcony class ticket in 1997
should have had a monthly income of Rs.
15,000 and on that basis apply high
multiplier
of
15
to
determine
the
compensation at a uniform rate of Rs. 18
lakhs in the case of persons above the age
of 20 years and Rs. 15 lakhs for persons
below that age, as a public law remedy,
may not be proper. While awarding
compensation to a large group of persons,
by way of public law remedy, it will be
unsafe to use a high income as the
determinative factor. The reliance upon
Neelabati Behera (AIR 1993 SC 1960 :
9 All. The New India Assurance Co. Ltd., Noida Vs. Smt. Barisa & Ors.
197
1993 AIR SCW 2366) in this behalf is of no
assistance as that case related to a single
individual and there was specific evidence
available in regard to the income. Therefore, the
proper course would be to award a uniform
amount keeping in view the principles relating
to award of compensation in public law remedy
cases reserving liberty to the legal heirs of
deceased victims to claim additional amount
wherever they were not satisfied with the
amount awarded. Taking note of the facts and
circumstances, the amount of compensation
awarded in public law remedy cases, and the
need to provide a deterrent, we are of the view
that award of Rs. 10 lakhs in the case of persons
aged above 20 years and Rs. 7.5 lakhs in regard
to those who were 20 years or below as on the
date of the incident, would be appropriate. We
do not propose to disturb the award of Rs. 1
lakh each in the case of injured. The amount
awarded as compensation will carry interest at
the rate of 9% per annum from the date of writ
petition as ordered by the High Court, reserve
liberty to the victims or the LRs. of the victims
as the case may be to seek higher remedy
wherever they are not satisfied with the
compensation. Any increase shall be borne by
the Licensee (theatre owner) exclusively."

24. In view of the above legal position
in matters of compensation to the injured
victim
who
virtually
suffered
100%
incapability to earn his livelihood and
rather became a life long liability upon the
parents, we do not find any manifest error
in the award qua compensation awarded.
The First Appeal From Order, accordingly,
lacks merit and is rejected.

25. Rs. 25,000/- deposited by the
appellant shall be remitted to the tribunal
for being adjusted against the award.
----------
(2020)09ILR A197
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.06.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 2473 of 2009
&
First Appeal From Order No. 734 of 2011 &
2538 of 2019

The New India Assurance Co. Ltd., Noida
 ...Appellant
Versus
Smt. Barisa & Ors. ...Respondents

Counsel for the Appellant:
Sri Amit Manohar

Counsel for the Respondents:
Sri Nigamendra Shukla

A. Civil Law -Motor Accident Claim -
Contributory negligence and Composite
Negligence-Meaning-A person who either
contributes or is author of the accident
would be liable for his contribution to the
accident having taken place. (Para 7)
B. Civil Law -Motor Accident ClaimVehicles of unequal magnitude - Liability of
both Drivers as tortfeasors - Motorcycle driver
died on spot - Truck came on the wrong side
and caused the accident - Truck driver has not
stepped into the witness box - No evidence to
demonstrate that the deceased was a coauthor
of accident - Held, the decision of the Tribunal
holding the driver of the insured vehicle of the
appellant to be negligent cannot be disturbed.
(Para 8, 9 and 10)
C. Civil Law -Motor Accident Claim -
Breach of Policy - Burden of proof - The
driving licence if is said to be fake the insurance
company should have prove the same - The
finding of fact of the Tribunal as far as non
breach of policy condition cannot be found fault
with. (Para 12)
D. Motor Accident Claim - Computation of
Compensation
-
Deduction
for
personal