Delhi High Court
National Insurance Company Ltd vs Ashok Tyagi on 10 April, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th April, 2012
+ MAC.APP. 548/2010
NATIONAL INSURANCE COMPANY LTD..... Appellant
Through: Mr. Manoj R. Sinha, Advocate
versus
ASHOK TYAGI ..... Respondent
Through: Mr. M.L. Pahwa, Advocate
with Respondent in person.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant National Insurance Company Limited seeks
reduction of compensation of `14,19,041/- awarded to the first
Respondent Dr. Ashok Tyagi for having suffered injuries in a
motor accident which occurred on 09.05.2004.
2. The first Respondent who himself is an Orthopedic Surgeon
suffered posterior dislocation of the right hip with acetabular
fracture. Initially, open reduction and acetabular reconstruction
was performed in Batra Hospital. Subsequently, acetabular
reconstruction and Dysplasia Birmingham Hip resurfacing
(right) was done in Apollo Speciality Hospital in Chennai. The
First Respondent remained under treatment from the date of
accident i.e. 09.05.2004 till end of the year 2006.
3. A perusal of the OPD slip Ex.PW-1/12 shows that the First
Respondent was permitted to walk with crutches after two
months of his examination on 20.06.2005. A large number of
documents Exs.PW-1/6 to PW-1/16, Exs.PW-1/21 to PW-1/24
were proved in respect of the treatment undertaken by the first
Respondent in Dr. R.M.L. Hospital, Batra Hospital, Hindu Rao
Hospital, Fortis Hospital, Noida, Safdarjung Hospital and
Apollo Speciality Hospital, Chennai. He was issued a
Disability Certificate Ex.PW-1/25 declaring him physically
handicapped to the extent of 15% in relation to his right lower
limb.
4. The Claims Tribunal awarded a compensation of ` 14,19,041/-
under the following heads:-
Sl. Compensation under various heads Awarded by
the Claims
No. Tribunal
a) On account of pain, shock and `50,000/-
sufferings
b) On account of Medical Expenses ` 2,85,000/-
c) On account of Transportation ` 60,000/-
Charges
d) On account of Misc. Expenses on ` 2,11,300/-
Damages to Car & Loss from
Swimming Classes
e) On account of Nursing Attendant ` 30,000/-
f) On account of Disability ` 4,60,000/-
g) On account of Loss of Amenities ` 2,00,000/-
h) On account of Special Diet ` 30,000/-
i) On account of Loss of Leaves ` 1,02,730/-
Total ` 14,29,030/-*
* There appears to be a clerical mistake as the Claims
Tribunal totalled up the amount as ` 14,19,041/-.
5. Following contentions are raised on behalf of the Appellant
Insurance Company:-
(i) The award of compensation of ` 2,00,000/- towards
damage to the car was not permissible as no evidence was
produced by the first Respondent to show the extent of
loss. The compensation of ` 85,000/- was paid by the
first Respondent's Insurer in full and final settlement as
per document Ex.PW-1/50.
(ii) There was no evidence to support that the first
Respondent was advised to undertake swimming exercise
to recover from the injuries. The compensation of `
11,300/- under the head (d) i.e. Charges for Swimming
Classes was not justified.
(iii) The compensation of `2,00,000/- towards Loss of
Amenities was exorbitant and excessive.
(iv) The Claims Tribunal erred in granting a compensation of
` 4,60,000/- towards Loss of Earning Capacity on account
of Disability under the head (f) as the First Respondent
did not suffer any loss in earning being in Govt. service.
DAMAGE TO THE CAR
6. It is proved on record that his (Claimant) own damage claim of
` 85,800/- was settled by the Tata AIG General Insurance
Company Limited and this amount was received in full and
final settlement by document Ex.PW-1/50. The receipt of any
amount by one's own Insurer cannot debar a victim of a motor
accident to claim compensation from the tortfeasor if the extent
of the actual damage is more than what is paid by the victim's
own Insurer.
7. It is urged by the learned counsel for the first Respondent that a
perusal of the Mechanical Inspection Report Ex.PW-1/49 shows
that the Wagon-R car No.DL-7CB-7345 owned by the First
Respondent was totally damaged in the accident as it was not fit
for road test.
8. It would be appropriate to refer to the testimony of the first
Respondent in his Affidavit Ex.PW-1/A. The relevant
averments made in the Affidavit are extracted hereunder:-
"12. I state that due to rash and negligent act of the
Respondent No.1 driver the car of the Deponent i.e. the
Wagon-R bearing No.DL-7CB-7345 was badly damaged
and Deponent has suffered great problem in commuting.
The Registration Certificate of Wagon-R registered in the
name of the Deponent is hereby Exhibited as Ex.PW-
1/47. Further the Deponent has spent about ` 800/- as
Crane Charges. The said receipt is hereby Exhibited as
Ex.PW-1/48. Though the car was insured; but the
Deponent only got ` 85,000/- from the Insurance
Company; as the car was totally damaged. The
mechanical inspection report of Wagon-R and Final
Settlement of Insurance Claim are is hereby Exhibited as
Ex.PW-1/49 to PW-1/50. Thus due to said accident the
Deponent suffered loss of about 2,00,000/- (Rupees Two
Lacs only). It is submitted that the Deponent was forced
to purchase a new car in the month of July......"
9. Thus, it would be apparent from the Affidavit Ex.PW-1/A that
the Wagon-R car bearing No. DL-7CB-7345 was badly
damaged in the accident. The First Respondent has not
obtained any report from any motor garage or any surveyor to
prove the extent of the loss to the vehicle. Thus, it cannot be
said that the extent of the damage to the car was more than `
85,000/- paid by Tata AIG. Simply because the First
Respondent purchased a new car by replacing his accident
ridden Wagon-R car, a compensation of `2,00,000/- could not
have been granted under this head.
COMPENSATION FOR ATTENDING SWIMMING CLASSES
10. As far as grant of `11,300/- for attending swimming classes is
concerned, by referring to the OPD Slip Ex.PW-1/12, it is
apparent that the First Respondent was advised to continue with
the swimming exercises. The receipts Ex.PW-1/31 for ` 6500/-
and Ex.PW-1/32 for ` 4800/- would show that a sum of `
11,300/- was spent on swimming pool charges and coach
charges. The Claims Tribunal rightly awarded the compensation
of ` 11,300/-.
LOSS OF AMENITIES
11. I have observed earlier that the Appellant underwent series of
surgeries in various hospitals in Delhi and in Chennai. He was
advised to walk with crutches only after six months of the
accident. Only a sum of ` 50,000/- was awarded towards pain
and suffering. Considering the prolonged period of treatment
and the fact that the first Respondent would always feel
handicapped while performing surgeries which are for longer
duration and would be dependent on his associates. I would not
interfere in the award of compensation of `2,00,000/- towards
loss of amenities and expectations in life.
PERMANENT DISABILITY
12. A compensation of ` 4,60,000/- was awarded under this head. It
is urged by the learned counsel for the Appellant that since the
first Respondent's salary and promotional avenues were not
affected on account of the injuries suffered, the first Respondent
was not entitled to any compensation towards permanent
disability.
13. On the other hand, it is urged by the learned counsel for the first
Respondent that he (First Respondent) could have sought
voluntary retirement before the age of his superannuation and
would have earned much more in the Private Sector being a
senior Orthopedic Surgeon. It is urged that in the grounds of
Appeal, the compensation awarded under this head was not
challenged by the Appellant and this ground cannot be taken
during the hearing.
14. While dealing with the grant of compensation towards
permanent disability and future loss, the Claims Tribunal held
as under:-
"Disability:
Dr. Ashok Tyagi produced on record disability certificate
to show that he suffered 15% disability vide Ex.PW1/25.
He has further deposed that he will not be able to sit in
squatting position, will have difficulty in walking and he
has to attend strenuous work specially long standing as
explained in Ex.PW1/24. He further deposed that he
wanted to take voluntarily retirement and want to move
for benefits of private sector where he would have earned
much higher salary.
I have considered the evidence on record. Dr. Ashok
Tyagi is presently in government hospital and due to 15%
disability and strenuous work of surgery will not bring
any financial loss in terms of salary etc. Being in
government hospital the work is flexible and is shared by
number of other medical persons. However, this 15%
disability would certainly result in his performance
capability when he undertakes private employment after
his retirement and will also contribute to inconvenience
and loss of amenities. However, he can be compensated
for the loss of 15% disability in terms of his present
salary loss. Salary certificate Ex.PW1/26 shows that he
was drawing Rs.41,092/-pm. He suffered 15% disability.
Loss of income comes to Rs.34,929/-. He was aged 48
years. Appropriate multiplier applicable to his age is 13.
Thus, total loss of income due to disability comes to
Rs.4,54,077/-. I award him Rs.4,54,077/-rounded off to
Rs.4,60,000/- on account of loss of income due to
disability.
x x x x x x x x x x x
Future loss:
Ld. Counsel for the petitioner has claimed that petitioner
wanted to take voluntarily retirement for going to private
sector where he would have earn salary of about
Rs.1,50,000/- to Rs.2,00,000/-pm. He would have
continued service till 65 years and he would have earned
in that time sum of Rs.3,24,00,000/-. Being in government
department he would be getting Rs.88,56,000/-.
Therefore, he states that petitioner is entitled to balance
of Rs.2,35,44,000/- I have considered the submission.
This claim is based on conjectures. As already stated by
Hon'ble Supreme Court in the case of C.K. Subramania
Iyer Vs. T. Kunhikuttan Nair, the claim of
Rs.2,35,44,000/- is in the nature of recovery of amount
due, after serving for a particular period on particular
salary. However, keeping in view probabilities,
improbabilities and uncertainty of life, such conjecture
on leaving the government job, getting the private job,
desired salary and continued life till 65 years are in the
realm of speculation which cannot be allowed. The life is
uncertain, the physical fitness is subject to various other
consideration and decision which may intervene and cut
short the life. In my view such speculated losses are not
admissible, as any sound basis of claim argued by
counsel for petitioner."
15. I would agree with the learned counsel for the first Respondent
that in the absence of any challenge to the award of
compensation under this head in the grounds of the Appeal, the
Appellant cannot be permitted to urge this ground. Otherwise
also, although the factum of the first Respondent seeking
voluntary retirement and joining private sector may be said to
be speculative as held by the Claims Tribunal, yet, it cannot be
lost sight that the first Respondent would have taken some
gainful employment after working as a specialized Orthopedic
Surgeon in a big Govt. hospital in Delhi and the award of
compensation of ` 4,60,000/- towards loss of future income on
account of the permanent disability cannot be faulted.
16. The overall compensation is thus recomputed as under:-
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
a) On account of pain, `50,000/- `50,000/-
shock and suffering
b) On account of Medical ` 2,85,000/- ` 2,85,000/-
Expenses
c) On account of ` 60,000/- ` 60,000/-
Transportation Charges
d) On account of Misc. ` 2,11,300/- ` 11,300/-
Expenses on Damage to (for
Car & Loss from swimming
Swimming Classes classes only)
e) On account of Nursing ` 30,000/- ` 30,000/-
Attendant
f) On account of Disability ` 4,60,000/- ` 4,60,000/-
g) On account of Loss of ` 2,00,000/- ` 2,00,000/-
Amenities
h) On account of Special ` 30,000/- ` 30,000/-
Diet
i) On account of Loss of ` 1,02,730/- ` 1,02,730/-
Leaves
Total ` 14,29,030/- ` 12,29,030/-
17. The compensation stands reduced from `14,29,030/- to `
12,29,030/-. which shall carry interest @ 8% per annum (as
awarded by the Claims Tribunal) from the date of filing of the
Petition till the date of payment.
18. The excess amount of `2,00,000/- along with proportionate
interest and the interest accrued, if any, during the pendency of
the Appeal shall be refunded to the Appellant Insurance
Company. Rest of the amount lying deposited with the
Registrar General of this Court shall be released to the first
Respondent along with interest accrued if any, during the
pendency of the Appeal.
19. The Appeal is allowed in above terms.
20. The statutory amount of ` 25,000/- shall also be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
APRIL 10, 2012
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