Dr. Gunda Neubauer vs Bhanwar Singh & Ors.
2010 Latest Caselaw 3276 Del

     *          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                             Date of Reserve: May, 25th , 2010

                                   Date of Order: July 15, 2010

                      + MAC Appeal 729/2007 & CM Appln. No.17303/2007

%                                                                                  15.07.2010
         Dr. Gunda Neubauer                                                        ...Appellant
         Through: Mr. B.S. Randhawa, Advocate

         Versus

         Bhanwar Singh & Ors.                                                   ...Respondents
         Through: Mr. Pankaj Seth, Advocate



         JUSTICE SHIV NARAYAN DHINGRA

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

2.       To be referred to the reporter or not?                                             Yes.

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


         JUDGMENT

1. The present appeal has been preferred by the appellant assailing an award dated

8th August 2007 passed by learned Tribunal on the ground that the compensation

awarded to the appellant was inadequate.

2. Brief facts relevant for the purpose of deciding the present appeal are that that

appellant, a German national, had come to India as a tourist. She was traveling in a bus

and was going to Mount Abu from Udaipur when the said bus met with an accident with a

truck coming from opposite direction. In this accident, the appellant lost her arm on

junction up one third and middle one third. She filed a claim petition under Section 166 of

the Motor Vehicles Act and she was awarded compensation in following terms:

MAC Appeal 729/2007       Dr. Gunda Neubauer vs. Bhanwar Singh & Ors.              Page 1 Of 9
         (i)      Pain and sufferings:                 Rs.2,00,000/-

        (ii)     Medical bills:                       DM 1,14,367.08 (Rs.15,61,110.64)

        (iii)    Bill of private hospital:            Rs.45,905/-

        (iv)     Attendant expenses :                 Rs.3,22,500/-

        (v)      Special diet and conveyance:Rs.25,000/-

        (vi)     Permanent disability:       2,03,508.50DM
                 (Applying the exchange rate
                 of 13.65 rupees)            Rs.27,77,891.02

        (vii)    Loss of enjoyment & amenity:Rs.2,00,000/-

                 Total:                               Rs.53,32,406.66

3. By way of this appeal, the appellant has assailed the compensation awarded by

the Tribunal on the ground that it was not in consonance with the provisions of Motor

Vehicles Act. The Tribunal had not taken into consideration the future prospects of the

appellant despite there being sufficient evidence on record to show that the appellant

had a bright future growth prospects. The Tribunal arbitrarily restricted the damages of

loss of earnings to 20% of her earning capacity instead of 70% of her earning capacity.

The Tribunal should have calculated loss of earning capacity in terms of Schedule-I Part-

II of the Workmen Compensation Act. It is further submitted that the Tribunal wrongly

deducted income tax and surcharge out of gross income for calculating the loss of

income. The Tribunal should have calculated loss of income taking into account the

gross income. The Tribunal wrongly applied conversion rate of 13.65 per Dutch Mark

after calculating loss of income in Dutch Marks whereas the currency prevalent at the

time of making award was EURO. The Tribunal also did not award amount for

purchasing a special car by the appellant as after accident she could not drive ordinary

car. The Tribunal did not award costs of petition in favour of the appellant and the

Tribunal did not take into consideration that the appellant has to incur future expenses on

an attendant.

MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 2 Of 9

4. It is settled law that the Court in case of accident has to award compensation for

pecuniary losses and non-pecuniary losses. The pecuniary losses fall under following

heads:

(i) Expenses incurred on treatment, including doctors fee, medicines, etc.

(ii) Expenses caused by any injury to loss of earning.

(iii) Expenses/loss otherwise due to accident.

The non-pecuniary loss falls under following heads:

         (i)     Pain and sufferings

         (ii)    Loss of amenities

         (iii)   Loss of expectation of life.

5. The Tribunal awarded a sum of Rs.2 lac towards pain and sufferings to the

appellant because of the accident. The Tribunal, in paragraph 16 of the award, thought

that the compensation awarded to a person must commensurate with the status of a

person. I consider that the observation made by the Tribunal that the compensation for

pain and suffering has to be in accordance with the status of a person is anti-

Constitutional. The Constitution of India mandates that everybody is equal before law

and the persons cannot be discriminated on the basis of colour of the skin, caste, creed

or financial status. The pain and sufferings suffered by a poor man for same injury

cannot be considered less than the pain and suffering of a rich man. The Court cannot

award small amounts on account of pain and sufferings to the poor persons and hefty

amounts for pain and sufferings for same injury to the rich person only because a person

was rich. The value of each human life in the eyes of law has to be the same and the

monetary value of the pain and suffering also to be same. If the Courts award more

compensation to foreigners because of the colour of skin or because of the richness and

award less compensation to Indians because they are poor, that amounts to travesty of

MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 3 Of 9 justice, and contrary to the Constitution. Pain and sufferings from injuries do not increase

or decrease because of colour of the skin or because of affluence of a person.

6. Although the Tribunal observed that it has to be guided by the precedents but the

Tribunal seems to have been guided more by the fact that the claimant in this case was

a foreign national and was having different status than that of an Indian citizen.

Otherwise I find no reason why the Tribunal would have granted Rs.2 lac to the appellant

on account of pain and sufferings in case of amputation of an arm while the precedents

show that the amount awarded in other similar cases where an Indian had suffered

injuries were much less. In Harbhagwant Singh v Haryana Roadways 2006 ACJ 1367 an

amount of Rs. 20,000/- was awarded for pain and suffering in case of amputation of right

arm. The injured in that case was aged 39 years and was a Joint Director in C.R.P.F. In

Tarloki Nath v Kirtan Singh & Ors 2002 ACJ 58, the injured had suffered multiple injuries

and 100% permanent disability of right arm and hand. He was aged 35 years. The

Tribunal had awarded a sum of Rs.40,000/- for disability and loss of earnings and

Rs.15,000/- for medical treatment out of the total compensation of Rs.80,000/-. This

amount was enhanced by the High Court and the total compensation given was

Rs.1,50,000/-, whereas in the case in hand, the compensation awarded by the Tribunal

only on account of pain and suffering is Rs.2 lac. In Royal Sundaram Alliance General

Insurance Company Limited v P. Ayyakahnn (2009) 5 MLJ 707 the amount awarded by

the High Court for pain and suffering in case of amputation of thumb and two/three

fingers and for all other injuries all over the body of the injured was Rs.30,000/-. In

Oriental Insurance Company v R.Swaminathan & Ors. 2006 ACJ 1398 it was a case of

amputation of right hand and other injuries and the Tribunal awarded a sum of Rs.1 lac

against pain and sufferings. The High Court reduced it to Rs.30,000/-. The Supreme

Court considered that Rs.1 lac for pain and suffering was not just. Thus, in none of the

above cases, the amount awarded for pain and suffering had been as high as in this

MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 4 Of 9 case. Pain and sufferings cannot be weighed in terms of money neither money can

reduce pain and suffering. Therefore, the compensation for pain and suffering is only a

payment of compensation in the nature of solace and this solace cannot be more for a

rich man who already has enough money and affluence and less for the poor who needs

more money and facilities and amenities and every single rupee helps him. But, in this

country, the poor is always looked upon as a non-entity. Grant of less compensation to

the poor, even for pain and sufferings than to the rich persons is clearly contrary to the

mandate of the Constitution. I also find that status of a person or nationality cannot be a

ground for payment of more compensation on account of pain and sufferings. The solace

to be awarded in all cases for similar injuries, ought to be same. Changing of solace from

person to person must not be there and the solace must not change with the colour of

the skin, status or affluence. The Tribunal in this case awarded much more amount than

that should have been awarded and the appeal on this count must fail.

7. The injured in this case before starting a tour had obtained Overseas Medical

Insurance Policy, which is normally obtained by all tourists traveling from India to other

countries or traveling from other countries to India. This Overseas Medical Insurance

Policy is mandatory in many countries in case of all tourists and has to be obtained so

that if any untoward thing happens in a foreign nation, the tourist is not stranded and

does not become a burden on the other country and the insurance company pays the

medical bills. The appellant in the present case was also contributing to German Health

Insurance Funds and was paying monthly subscription towards it in Germany. The

Tribunal awarded payment for entire medical bills placed by her on record without

deducting the amount which she received under the Overseas Medical Insurance Policy

and from German Health Insurance Germany. The learned Tribunal observed that while

awarding expenses of medical bills, no amount, which the injured had received under the

insurance policy against same very bills should be deducted and the entire bills of

MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 5 Of 9 medical treatment must be awarded under the Motor Vehicle Act. I consider that this

approach of learned Tribunal is contrary to the basic jurisprudence of awarding

compensation in motor accident claims. The basic jurisprudence of awarding

compensation in motor accident claims is that the person who got injured must be

compensated on account of loss suffered by him or her and the compensation must not

be a windfall. If the injured, a tourist as in the present case, had come to India, with an

Overseas Medi-claim Insurance Policy, the amount of medical bills paid under Overseas

Medical Insurance Policy cannot be again to the injured by the Tribunal as that would

amount to a windfall. In the present case, admittedly money spent by the injured on her

treatment was reimbursed to her under Overseas Medical Insurance Policy and under

health insurance held by her in Germany. Granting of same amount again amounted to

awarding something for which she was not entitled to. She got some treatment in

Germany and she got entire expenses incurred by her on her treatment from German

Health Insurance Company since she was a contributory to German Health Insurance

Funds. The Tribunal awarded the entire claim regarding her treatment again, despite the

fact that she had received the entire amount incurred by her from insurance companies

observing that if no accident had taken place, the insurance company of the insurer

would have paid her the amount on the maturity of the scheme of the insurance

company. This presumption (paragraph 41 of the Award) made by the learned Tribunal is

without any basis and contrary to insurance contract. No Overseas Insurance Policy

provides that in case the tourist does not need the medical treatment abroad, the

premium amount would be returned. In fact no insurance company returns the premium

to the tourist, when he or she does not make a claim under the policy. This presumption

made by the Tribunal was thus without basis. The learned Tribunal also observed that

payment of compensation in motor accident cases was a statutory liability of the

insurance company under Motor Vehicles Act, irrespective of the fact whether the

amount spent on treatment on treatment was received by the injured from other sources

MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 6 Of 9 or not. I consider that this presumption is also without any basis. This presumption is

neither supported by law nor by facts. The compensation means the amount spent on

treatment should be reimbursed. The compensation does not mean that if the injured

had not spent any amount and the insurance company of the injured (Medical Insurance

Companies in this case) spent the amount, still the injured should be compensated. The

Tribunal placed reliance on Helen C. Rebello vs. Maharashtra State Road Transport

Corporation 1(1991) SCC 90 wherein the Supreme Court has observed that amount

received under LIC or under other social security like provident fund cannot be deducted

out of compensation. Placing reliance on this judgment by the Tribunal was misplaced. In

case of death, the amount awarded under Motor Vehicles Act cannot be reduced by

provident fund and other social securities which are paid to the Lrs of the deceased

because these social securities are in the nature of deferred earnings of the deceased.

The deceased contributed to the provident funds during his lifetime out of his own

earnings. His past earnings cannot be deducted at the time of making award for

compensation because of death in an accident. Similarly, LIC also is a separate contract

under which a person or his nominees or Lrs because of payment of regular premium,

get the amount from the insurance company. LIC Policy is considered an investment.

Under Motor Vehicles Act, the dependency of the dependents of the deceased is

determined and the loss of dependency is awarded and other payments received by Lrs

can not be deducted. The Tribunal in this case relied upon death cases in order to

observe that the amount received by the injured from Overseas Medical Insurance Policy

and under German Health Scheme was not liable to be deducted. I consider that this

conclusion arrived at by the learned Tribunal was contrary to law. The payments under

LIC, provident fund and payments under other social securities schemes cannot be

equated with payment under Overseas Medical Insurance Policy and payment under

German Health Scheme whereunder the insurance company pays the medical bills and

bears medical expenses resulting from the injuries received by the injured. The double

MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 7 Of 9 payments of these claims, one under Overseas Medical Insurance Policy and the other

German Health Scheme is nothing but a windfall for the injured and I consider that the

learned Tribunal wrongly awarded huge amount of Rs.15,61,110.64 and Rs.45,905.00 to

the injured. In my view, the appellant should have been thankful to the Tribunal for

awarding these amounts, contrary to law, and to the respondent insurance company

which did not prefer an appeal against the award on these counts.

8. The learned Tribunal awarded compensation on account of loss of income

considering the age of the injured as 48 years, the income of the injured as proved by

her and taking her disability as 20%. Thus, the Tribunal awarded a sum of DM

2,03,508.50. The appellant had received a sum of DM30,000/- from her employer while

she was removed from service. This amount was not taken into consideration while

awarding loss of income. The Tribunal awarded another sum of Rs.2 lac because of

continuous mental pain and agony which the appellant would have to undergo because

of incompleteness of an individual on account of loss of her one limb and because of the

difficulty in carrying out day-to-day work. Apart from that, the learned Tribunal awarded

another amount of Rs.2 lac on account of loss of enjoyment of amenities of life. After

awarding of an amount of Rs.2 lac towards incompleteness of awarding another amount

of Rs.2 lac because of reduction in enjoyment of amenities of life was nothing but a

windfall. The Tribunal awarded amounts as stated in paragraph 1 of this judgment

above. Under no circumstances it can be said that the Tribunal awarded less amount.

9. It is contended by the learned counsel for the appellant that the Tribunal should

not have taken the disability of the appellant as 20% and should have taken the disability

as 70% in terms of Workmen Compensation Act. It is to be noted that the appellant was

not a workman and she was not doing physical work before accident. She was a PhD in

Agricultural Science. She is an intellectual and has to do intellectual labour instead of

MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 8 Of 9 physical labour for earning. She was not dependent on her right arm for her intellectual

work. She was dependent on her brain and I consider that an intellectual, who performs

mental work cannot say that due to loss of one arm, she has suffered 70% loss of her

earning capacity. In today's era of science and technology, a person can use computers

and other gazettes without even using his hands. Similarly, future prospects of a person

do not suffer in such a case. The Tribunal has in fact awarded much more compensation

to the injured than what was due to her under law.

10. In view of above facts and circumstances and settled legal position, I find no force

in this appeal. The appeal is hereby dismissed.

July 15, 2010                                                       SHIV NARAYAN DHINGRA J.
rd




MAC Appeal 729/2007   Dr. Gunda Neubauer vs. Bhanwar Singh & Ors.              Page 9 Of 9