SHRIRAM GENERALA INSURANCE COMPANY LIMITED Vs. SABEER

JUDGEMENT

(1.) Both the Insurance Company and the injured have filed appeals. The former challenge the quantum and the latter seeking enhancement. Comprehensive consideration can be made with respect to the various counts on which the award has been passed.

(2.) The injured was riding a goods auto when it collided with a mini lorry on 15.10.2009. The learned Standing Counsel for the Insurance Company at the outset would submit that there is contributory negligence on the part of the injured-goods auto driver since there was a charge filed against him, the injured, as was done in the case of the lorry driver. Further it is argued that the disability was taken at 90% when the expert Doctor had assessed it at 70%. The Tribunal had relied on a judgment of the Hon'ble Supreme Court reported in Syed Sadiq and others v. Divisional Manager, United India Insurance Company ( 2014 KHC 4027) to enhance the disability from that assessed by the expert doctor. In fact, no such enhancement could have been granted going by the principles laid down in the decision. Relying on National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350] it was contended that future prospects with respect to a person who was not regularly employed could be only at the rate of 40%. There could also be no compensation awarded for loss of marriage prospects. The learned Standing Counsel also points out that there was a loss of earnings awarded for five years which is excessive by any count. The Tribunal had also adopted the notional income plus future prospects for awarding the compensation for loss of earning capacity.

(3.) The learned Counsel for the respondent however, submits that since the petitioner had suffered serious injury of amputation of right leg, he could not have carried on his avocation as a driver and in such circumstances the assessment of disability of 90% is perfectly proper. It is also argued that the future prospects had to be assessed at 10% for reason of production of a certificate showing regular employment in a timber mill. It is also contended that loss of earning has to be sustained for reason of the serious injuries suffered by the injured. The learned Counsel for the injured also argued that the income fixed by the Tribunal is very low, especially going by the certificate produced. The learned Standing Counsel for the Insurance Company would alertly point out that though the certificate of income was produced it was never proved through the employer.