Surya Bhan Singh vs Oriental Insurance Co. Ltd. ...
2021 Latest Caselaw 9586 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 19
 

 
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 903 of 2007
 

 
Appellant :- Surya Bhan Singh
 
Respondent :- Oriental Insurance Co. Ltd. Lko.And 2 Ors.
 
Counsel for Appellant :- Jai Pratap Singh
 

 
Hon'ble Jaspreet Singh,J.

Heard Shri R.R. Upadhayay, learned counsel for the appellant and Shri Vaibhav Raj, learned counsel for the respondent no.1.

The issue involved in the instant appeal is very limited. The appellant has preferred the instant appeal seeking enhancement of the award dated 28.05.2007 passed in Claim Petition No.18 of 2004 (Surya Bhan Singh Vs. Dr. K. Singh and others) passed by the Motor Accident Claims Tribunal/Special Judge E.C.Act, Lucknow wherein a sum of Rs.2243/= has been awarded by the Tribunal in respect of the injuries suffered by the appellant.

It will be noted that there is no cross appeal against the said judgment hence in so far as the findings of negligence, the vehicle being insured and being driven in accordance with policy condition is concerned, the same has neither been challenged by any of the respondents, consequently, the same have attained finality. The only issue which now needs to be considered is whether the award dated 28.05.2007 for a sum of Rs.2243 alongwith 7.5% interest is sustainable or requires to be enhanced.

Arguing on the aforesaid point, learned counsel for the appellant has submitted that the Tribunal has failed to take note of the relevant documents which were filed indicating that the appellant had suffered serious injuries such as a fracture in his collar bone as well as in his left hand. He has drawn the attention of the Court to the finding in the award wherein it has been mentioned by the Tribunal that the appellant has not filed any x-ray report whereas only x-ray plates have been brought on record as Paper No.Ga 45/8 and Ga 45/10. Thus, it is submitted that the Tribunal has failed to take note of the requisite evidence also that the appellant is a practicing lawyer of this Court and that on account of the serious injuries sustained by him, he was prevented from actively participating in his practice which led to financial loss apart from the fact that no amount has been granted towards non-pecuniary damages.

Learned counsel for the Insurance Company, on the other hand, submits that since the appellant did not lead any evidence worth its name to prove the actual loss or the disability suffered in the aforesaid circumstance, the Tribunal has already granted the sum towards the expenses which were incurred towards medical treatment, hence the said award was accepted by the appellant, consequently it does not require any interference.

The Court has heard the learned counsel for the parties and also perused the record.

Briefly the facts of the case as set out before the Claims Tribunal was that the appellant Surya Bhan Singh on 20.11.2002 at around 10.30 A.M. was travelling on his scooter to meet his friend D. S. Tewari who resides in House No.35, Saraswati Puram near S.G.P.G.I. Lucknow. It was further stated that as the appellant had moved towards Saraswati Puram as he reached Money Mount Shopping Complex, the appellant stopped at the said shopping complex to buy certain chocolates and gift for the children of his friend D. S. Tewari. At that very moment a Matiz Car bearing number U P 32 PC-9957 which was parked on the wrong side of the road and as the appellant had moved to park his scooter the door of the car was opened suddenly by the lady who was driving the said vehicle as a result the appellant was hit by the said door and fell alongwith his scooter.

In the aforesaid accident, the appellant suffered a fracture of his collar bone and a fracture in the left hand. The appellant got himself treated at the nearest hospital and thereafter his left hand and collar bone remained under plaster which also prevented him to carry on with his normal vocation which resulted in losses and for seeking compensation, the appellant preferred a Claim Petition No.18 of 2004.

The said claim petition was contested by the respondents no.2 and 3 who denied the factum of the accident. Apart from the aforesaid, they also took the plea that the vehicle in question was duly insured with the Oriental Insurance Company Limited and the driver had a valid and effective driving licence.

On the pleadings of the parties, the Tribunal framed three issues. While dealing with the issue No.1, the Tribunal found that the accident had occurred on account of rash and negligent act of the car driver. It also found that the vehicle was duly insured with the Oriental Insurance Company Limited and that the car driver had a valid and effective licence. However considering the quantum to be awarded the Tribunal awarded only a sum of Rs.2243/= alongwith 7.5% interest by means of award dated 28.05.2007 which is under challenge.

Having heard the learned counsel for the parties and from the perusal of the record, this Court finds that though the Tribunal has merely noticed the expenditure incurred towards the medical treatment but it has failed to take note of the non-pecuniary damages. Once a finding had been recorded by the Tribunal that the accident had occurred on account of rash and negligent act of the car driver, then apart from the expenses reimbursed towards medical expenditure. The Tribunal ought to have noticed the fact that a person who had suffered a collar bone fracture as well as another fracture in his left hand must have gone through lot pain and trauma. For quite a period of time the person may have remained immobile and may not have performed his daily acts with proficiency and freedom.

Even the finding of the Tribunal that the appellant did not file any x-ray report is belied from the fact that the said x-ray reports were available on record bearing Paper Nos.C-45/5 and C-45/6. These two documents indicates that an x-ray of the left hand was done which shows fracture at the base of second metacarpal whereas the other x-ray report indicates that there was a fracture of the left clavicle. Both the aforesaid reports are of 20th of November, 2002 i.e. date of the accident. Thus, the Tribunal did not go through the evidence meticulously and has taken a stringent view of the matter. Considering this aspect of the matter as well as drawing strength from the decision of the Apex Court in the case of Kajal Vs. Jagdish Chand and others reported in 2020 (4) SCC page 413, the relevant paras-6 and 26 of the said report is being reproduced as under:-

"6. It is impossible to equate human suffering and personal deprivation with money. However, this is was the act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her lift. They should not be just token damages.

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26. Coming to the non-pecuniary damages under the head of pain, suffering, loss of amenities, the High Court has awarded this girl only Rs.3,00,000/-. In Mallikarjun Vs. Divisional Manager, the National Insurance Company Limited and Ors., this Court while dealing with the issue of award under this head held that it should be at least Rs.6,00.000/-, if the disability is more than 90%. As far as the present case is concerned, in addition to the 100% physical disability the young girl is suffering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine month old child. This is a case where departure has to be made from the normal rule and the pain and suffering suffered by this child is such that no amount of compensation can compensate."

.

This Court is of the considered view that though the appellant did not lead much evidence to indicate the loses suffered by him towards loss of work, mental agony amongst other but even then the amount of Rs.2243 as awarded by the Tribunal is very meager specially where it has not taken note of the damages to be awarded towards mental agony and taking note of this aspect of the matter as well as to balance the equity between the parties, this Court provides that ends of justice can be met if a sum of Rs.15,000/= is awarded to the appellant towards mental agony. Thus, the award dated 28.05.2007 shall stand modified to the extent that the appellant shall be entitled to a total sum of Rs.17,243/= alongwith 7.5% interest per annum from the date of the filing of the claim petition till the date of its actual payment.

The aforesaid amount of Rs.17,243/= shall be paid by the respondent-Insurance Company to the appellant within a period of six weeks from today. Any amount already paid shall be deducted from the said amount.

Subject to above the award dated 28.05.2007 is modified. The appeal is partly allowed. Costs are made easy. The lower court record shall be remitted to the concerned Tribunal.

Order Date :- 5.8.2021

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