Sh. Lalit Mohan vs Sh. Kulvinder Singh
2009 Latest Caselaw 1149 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                     FAO No. 352/99

                     Judgment reserved on: 07.01.2008

                     Judgment delivered on: 6.4.2009


Sh. Lalit Mohan                     ..... Appellant.
                     Through: Mr. O.P. Mannie, Adv.

                     versus

Sh Kulvinder Singh                   ..... Respondents

Through: Mr. Manoj Ranjan Sinha, Adv.

for respondent no.3.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may Yes be allowed to see the judgment?

2.   To be referred to Reporter or not?                     Yes

3.   Whether the judgment should be reported                Yes
     in the Digest?



KAILASH GAMBHIR, J:

1. The present appeal arises out of the award of compensation

passed by the Learned Motor Accident Claim Tribunal on 8 th

March 1999 whereby the learned Tribunal awarded compensation

of Rs. 42,000/- for the injuries and damage caused to the injured

claimant in person and property respectively along with interest

@ 12% per annum.

2. The brief facts of the case are stated as under:

Injured appellant, Sh. Lalit Mohan, aged about 25 yrs at the time

of the accident on 16/1/1986, was driving his two-wheeler scooter

bearing license plate no. DHM-790. One Sh. Om Prakash Sharma

accompanied him in Pillion seat and they were going to Tri Nagar,

from Karol Bagh and when they reached near block No. 60,

Ramjas Road, a car bearing registration no. DHD 9572 came at a

fast speed from the opposite direction and rammed into the

scooter. The occupants of the scooter fell down and received

serious injuries. The claimant appellant received grievous injuries

and was removed to Ram Manohar Lohia Hospital for necessary

treatment. The appellant was admitted in the hospital from 16th

January 1986 to 25th February 1986 and underwent two different

medical procedures for the treatment of the fractured leg bone

and kneecap.

3. The appellant claims enhancement in the quantum of

compensation. It is stated by the counsel that the tribunal has

erred in considering the monthly income at Rs. 1,500 P.M. as the

same should have been considered at around Rs 2,500/- P.M.

Thus according to him, taking the income at Rs. 2,500/- P.M.

there should be enhancement in heads of loss of income during

treatment and compensation for the permanent disability caused.

The counsel further contended that in calculating the

compensation for the permanent disability, the tribunal erred by

awarding a lump sum amount of Rs 15,000/- towards the pain &

suffering caused and permanent disablement of 10%. Instead the

Tribunal should have applied a multiplier of 18 looking at the

young age of the claimant appellant and as provided in the IInd

Schedule of Motor Vehicles Act. Further it is contended by the

counsel that the tribunal erred in not taking in to consideration

the future increase in the income. He stated that the claimant

appellant is a young man and if he would not have received the

permanent injuries sustained, he would have proceeded at a

much higher level of occupation with time. The counsel also

seeks enhancement of amount awarded towards Medical

Expenses from Rs. 2,000/- to Rs. 7,500/-, special diet from Rs.

280/- to Rs 4,200/- and award of Attendant charges of Rs. 1,500/-

as he required medical attendance for 3 months. Towards the

Non-Pecuniary Damages, the counsel for the Appellant has

claimed a compensation of Rs. 50,000 towards Pain & Suffering

and Rs. 25,000/- for the Loss of amenities.

4. It is further submitted by the counsel for the Appellant that

the entire award amount has already been recovered by the

claimant appellant from the respondents Nos. 1&2 i.e. the owner

and the driver, and he has sought that the insurance company of

the vehicle involved in the case should be ordered to pay the

enhanced compensation award. It is worth to mention that

learned Tribunal held that there was no privity of contract

between the owner and the Insurance Company as the insurance

policy was found to be validly cancelled by the insurance

company on account of premium having not been paid.

5. Per contra, Mr. Manoj Ranjan Sinha, counsel for the

Respondent No.3, the Insurance Company contested the present

appeal stating that the appellant has not brought on the record

any cogent documentary evidence to establish his claim of

monthly income at Rs. 2,500/- and the tribunal has not erred in

considering the same at Rs. 1,500/- P.M. On the ground of future

prospects as well, the counsel vehemently contended that

nothing in evidence has been brought before the court to prove

the same. Further, the counsel for respondent shrugs off the

responsibility of the Insurance company from payment of any

enhancement claimed by this appeal, relying on the findings of

the Learned Tribunal.

6. I have heard the counsel for the parties and perused the

award.

7. In a plethora of cases the Hon'ble Apex Court and various

High Courts have held that the emphasis of the courts in personal

injury and fatal accidents cases should be on awarding

substantial, just and fair damages and not mere token amount. In

cases of personal injuries the general principle is that such sum

of compensation should be awarded which puts the injured in the

case of injury matters in the same position as he would have

been had accident not taken place. In examining the question of

damages for personal injury, it is axiomatic that pecuniary and

non-pecuniary heads of damages are required to be taken in to

account. In this regard the Supreme Court in Divisional

Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197,

has classified pecuniary and non-pecuniary damages as under:

"16. This Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd. 9 laying the principles posited: (SCC p. 556, para 9)

" 9 . Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance; ( ii ) loss of earning of profit up to the date of trial; ( iii ) other material loss. So far as non-pecuniary damages are concerned, they may include ( i ) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; ( ii ) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; ( iii ) damages for the loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; ( iv ) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

8. In the instant case the tribunal has awarded Rs. 5000/- for

expenses towards medicines; Rs. 2000/- for special diet; Rs. 280/-

for conveyance expenses; Rs. 5000/- for pain and agony; Rs.

3750 for scooter repair and Rs. 18,000/- on account of permanent

disability to the extent of 10%.

9. As regards the issue of liability of insurance company, the

counsel for the insurance company respondent no.3 contended

that there is no privity of contract between the owner of the

offending vehicle respondent no.2 and respondent no.3 insurance

company as the cheque issued by respondent no.2 towards

premium was dishonoured. To prove the same, R3W1, Sh. Vijay

Kumar Seth, Asst. Manager, United Commercial Bank was

examined and he deposed that respondent no.2 issued cheque

dated 28.5.1985 worth Rs. 2252/- in favour of National Insurance

Company but upon presentation, same was returned on 1.6.1985

with the remarks 'refer to drawer', which meant that there was

insufficient amount in the account of the drawer. R3S2 Sh. S.K.

Dhadwal, Manager of the Insurance Company was examined

and he deposed that policy No. 3081/191/6105886 was issued to

respondent no.2 by his office and signed by him. He further

deposed that the policy was issued for the period commencing

from 28.5.1985 to 27.5.1986 but the cheque issued by

respondent no.2 was dishonoured, therefore, notice dated

1.6.1985 in this regard was issued to respondent no.2 and the

policy was cancelled vide letter dated 1.6.1985. The accident

took place on 16.1.1986. Nothing has come on record to show

that the insurance company under the mandate of S.105 M.V.

Act, 1939 notified such cancellation of policy to the registering

authority. Unless the steps were taken by respondent no.3 under

S. 105 of M.V. Act, 1939 clearly the insurance company cannot

deny its liability. In this regard decision of the Hon'ble Apex

Court in New India Assurance Co. Ltd. Vs Rula (2000) 3

SCC 195 is important and the relevant para of the same is

reproduced as under:-

"10. The contract of insurance in respect of motor vehicles has, therefore, to be construed in the light of the above provisions. Section 146(1) contains a prohibition on the use of the motor vehicles without an insurance policy having been taken in accordance with Chapter XI of the Motor Vehicles Act. The manifest object of this provision is to ensure that the third party, who suffers injuries due to the use of the motor vehicle, may be able to get damages from the owner of the vehicle and recoverability of the damages may not depend on the financial condition or solvency of the driver of the vehicle who had caused the injuries.

11. Thus, any contract of insurance under Chapter XI of the Motor Vehicles Act, 1988 contemplates a third party who is not a signatory or a party to the contract of insurance but is, nevertheless, protected by such contract. As pointed out by this Court in New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani4 the rights of the third party to get indemnified can be exercised only against the insurer of the vehicle. It is thus clear that the third party is not concerned and does not come into the picture at all in the matter of payment of premium. Whether the premium has been paid or not is not the concern of the third party who is concerned with the fact that there was a policy issued in respect of the vehicle involved in the accident and it is on the basis of this policy that the claim can be maintained by the third party against the insurer.

12. It was in the background of the above statutory provisions that the provisions of Section 64-VB, upon which reliance has been placed by learned counsel for the appellant, were considered by this Court in Oriental Insurance Co. Ltd. v. Inderjit Kaur5 in which it was laid down as under: (SCC p. 375, para 9) "9. We have, therefore, this position. Despite the bar created by Section 64-VB of the Insurance Act, the

appellant, an authorised insurer, issued a policy of insurance to cover the bus without receiving the premium therefor. By reason of the provisions of Sections 147(5) and 149(1) of the Motor Vehicles Act, the appellant became liable to indemnify third parties in respect of the liability which that policy covered and to satisfy awards of compensation in respect thereof notwithstanding its entitlement (upon which we do not express any opinion) to avoid or cancel the policy for the reason that the cheque issued in payment of the premium thereon had not been honoured."

13. This decision, which is a three-Judge Bench decision, squarely covers the present case also. The subsequent cancellation of the insurance policy in the instant case on the ground that the cheque through which premium was paid was dishonoured, would not affect the rights of the third party which had accrued on the issuance of the policy on the date on which the accident took place. If, on the date of accident, there was a policy of insurance in respect of the vehicle in question, the third party would have a claim against the Insurance Company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. Subsequent cancellation of the insurance policy on the ground of non-payment of premium would not affect the rights already accrued in favour of the third party."

10. Therefore, the liability to pay compensation falls on the

insurance company. The tribunal committed error in this regard

and therefore, the award is modified to this extent.

11. The appellant has produced disability certificate, Ex.

PW12/A, to prove the disability of 10% in relation to the right

lower limb. The appellant filed OPD ticket of RML Hospital. No

medical bill or any other evidence has been brought on record to

prove the expenses incurred on treatment of the appellant. PW

Sh. Shankar Lal has deposed that the appellant was working as a

tailor master and the appellant has a shop and the said witness

had worked with the appellant for 3-4 years along with other

karigars and was working at a salary of Rs. 800-1000 pm. PW Sh.

Inder Sen, customer of the appellant came to know about the

accident of the appellant when he went to collect his stitched

clothes on 19/1/1986. He also deposed that the shop of the

deceased was closed till 28/1/1987. Another witness Sh. Mangal

Dass stated that he was working as an attendant for the

appellant and used to get Rs. 30 per day, he used to work from

8:00 am to 8:00 pm. He further deposed that when he used to

stay for nights as well, he was given Rs. 30 over and above the

daily earnings.

12. As regards Rs. 5000/- for expenses towards medicines, no

evidence has been brought on record regarding the same. The

appellant filed OPD ticket of RML Hospital but no medical bill or

any other evidence has been brought on record to prove the

expenses incurred on treatment of the appellant. On perusal of

the deposition of PW Sh. Inder Sen, customer of the appellant,

who stated that he came to know about the accident of the

appellant, which happened on 16/1/1986, when he went to collect

his stitched clothes on 19/1/1986. He also deposed that the shop

of the deceased was closed till 28/1/1987. The shop of the

appellant remained closed for almost an year and he must have

been on medication for the said period of one year and more.

Thus, the compensation towards medical expenses is enhanced

to Rs.10,000/-.

13. As regards Rs. 2000/- for special diet, nothing has been

brought on record to prove the same. Due to the said accident

the appellant had fractured in his right knee and left thigh,

interval injuries in the right shoulder and abression and bruises

all over the body. Looking at the nature of injury sustained by

the appellant and 10% disability, I feel that for quick recovery he

must have spent on protein rich diet, therefore, I enhance the

amount towards special diet to Rs. 5,000/-.

14. As regards Rs. 280/- for conveyance expenses, nothing has

been brought on record to prove the expenses incurred towards

conveyance in order to visit the hospital. On perusal of the award,

it comes in to light that the appellant filed the prescription slip

dated 22/7/1986, which was renewed on 4/9/1986 and two other

prescription slips dated 25/5/1986 and 26/5/1986. Looking at the

fact that the appellant was admitted in the hospital from 16 th

January 1986 to 25th February 1986 and underwent two different

medical procedures for the treatment of the fractured leg bone

and kneecap, I feel that the visits to the hospital could not have

been 60 times as claimed by the appellant but still Rs. 280/- is a

very meager amount and the same is enhanced to Rs. 2500/-.

15. As regards Rs. 15000/- for pain and agony and permanent

disability to the extent of 10%, I feel that the same is a meager

amount. Looking at the fact that the appellant was admitted in

the hospital from 16th January 1986 to 25th February 1986 and

underwent two different medical procedures for the treatment of

the fractured leg bone and kneecap, I feel that the amount

towards pain and agony and permanent disability to the extent of

10% should be enhanced to Rs. 50,000/-.

16. As regards loss of income, no proof regarding income of the

appellant was brought on record. The tribunal assessed notional

income of the appellant at Rs. 1500 pm and awarded Rs. 18,000/-

towards loss of income for a year, the period during which the

appellant could not work. It is no more res integra that mere bald

assertions regarding the income of the deceased are of no help to

the claimants in the absence of any reliable evidence being

brought on record. The thumb rule is that in the absence of clear

and cogent evidence pertaining to income of the deceased

learned Tribunal should determine income of the deceased on the

basis of the minimum wages notified under the Minimum Wages

Act. The tribunal ought to have assessed the income of the

appellant in accordance with the minimum wages of a skilled

workman, notified under The Minimum Wages Act on the date of

the accident, were Rs. 552/- per month and thus loss of income

would have come to Rs. 6624/-. On applying the said principle at

this stage, the compensation under this head will dwindle down

and thus in the interest of justice, the award is not interfered with

in this regard and compensation towards loss of income is taken

at Rs. 18,000/-.

17. As regards attendant charges, Sh. Mangal Dass stated that

he was working as an attendant for the appellant and used to get

Rs. 30 per day, he used to work from 8:00 am to 8:00 pm. He

further deposed that when he used to stay for nights as well, he

was given Rs. 30 over and above the daily earnings. The

appellant has claimed compensation towards attendant charges

incurred by the appellant for three months @ Rs. 500 pm. But, no

documentary proof was given in this regard. In the facts of the

present case, Rs. 1000/- is awarded in this regard.

18. As regards loss of amenities, I feel that the tribunal erred in

not awarding the same and in the circumstances of the case

same is allowed to the extent of Rs. 25,000/-.

19. Therefore, the compensation now payable to the appellant

under different heads is as follows:

(i) Rs. 10,000/- towards medical expenses.

(ii) Rs. 5,000/- towards special diet.

(iii) Rs. 2,500/- towards conveyance expenses.

(iv) 50,000/- towards pain and agony and permanent

disability.

      (v)     Rs. 18,000/- towards loss of income.

      (vi)    Rs. 1000/- towards attendant charges; and

(vii) Rs. 25,000/- towards loss of amenities.

20. In view of the above discussion, the total compensation is

enhanced to Rs. 1,11,500/- from Rs. 42,000/-. The differential

amount along with interest @ 7.5% per annum from the date of

institution of the petition till realisation of the award should be

paid to the appellant by the respondent no.3.

21. With the above directions, the present appeal is disposed

of.

6.4.2009                         KAILASH GAMBHIR, J