Delhi High Court
New India Assurance Co Ltd vs Deepti Kaur & Ors on 16 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th August, 2012
+ MAC.APP. 245/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr. Pankaj Seth, Advocate
versus
DEEPTI KAUR & ORS ..... Respondent
Through None
+ MAC.APP. 246/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr. Pankaj Seth, Advocate
versus
HARPREET SINGH & ORS ..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals arise out of a common judgment dated 02.12.2011
passed by the Motor Accident Claims Tribunal (the Claims Tribunal)
whereby a compensation of `1,83,000/- and `1,89,000/- was awarded in
MAC APP.245/2012 and MAC APP. 246/2012 respectively. The same
is extracted hereunder in a tabulated form:-
Sl. Compensation under Awarded in Awarded in
various heads Petition Petition
No. No.657/2010 No.622/2010
(MAC APP (MAC APP
245/2012) 246/2012)
1. Medical Expenses `86,000/- `84,000/-
2. Pain & Suffering & ` 25,000/- ` 25,000/-
Enjoyment of Life
3. Special Diet, Attendant & ` 30,000/- ` 30,000/-
Conveyance Charges
4. Loss of Income ` 42,000/- ` 50,000/-
Total ` 1,83,000/- ` 1,89,000/-
2. The grounds of challenge are that the negligence on the part of
Respondent No.2 was not proved. Rather, according to the learned
counsel for the Appellant it was a case of head on collision and thus,
there was contributory negligence. It is stated that the compensation of
`42,000/- and `50,000/- respectively towards loss of income and
`30,000/- towards special diet, Attendant charges and conveyance
charges is excessive and exorbitant.
3. I do not find any merit in the Appeals.
4. The First Respondent in the respective Appeals appeared in the witness
box and testified to the manner of the accident. Relevant portion of the
Claims Tribunal's observations on the issue of negligence is extracted
hereunder:-
"The petitioners PW-1 and PW-2 have stated that on 24.11.2008 at
about 07:30 p.m. when they were returning home from Jammu in
their Maurti Esteem Car, at Bhakharpur turning, they met with an
accident caused by the offending vehicle which was being driven
by respondent no.1 in a rash and negligent manner. They stated
that all of a sudden the respondent no.1 took U-turn and his
dumper came in front of their car. They stated that the respondent
no.1 after causing the accident, fled away from the spot. The
passersby removed them to a local hospital at Ganaur from where
they were shifted to Ganga Ram Hospital. They also filed the FIR
of the case Ex.PW2/3 registered against respondent no.1 and
stated that the care was totally damaged in the accident. From the
FIR, I find that a case was registered on the statement of Harpreet
Singh wherein he had specifically alleged that the dumper was
being driven by respondent no.1 in a rash and negligent manner.
He took a sudden U-turn and hit their car. Nothing material came
in the cross examination of PW-1 and PW-2 to draw an inference
that the accident did not occur due to rash and negligent driving of
offending dumper no.HR-69-5636 by respondent no.1. Further no
evidence contrary to this stand has been brought on record by the
respondents. The Hon'ble High Court of Delhi in a case titled as
2009 ACJ 287 National Insurance Company Limited Vs. Pushpa
Rana has held that where a petitioner files the certified copy of the
criminal record showing completion of investigation, issuance of
charge-sheet, certified copy of the FIR, all these documents are
sufficient proof to come to the conclusion that the driver was
negligent. Thus, it is established that the offending vehicle was
very much involved in the accident which ultimately led to the
injuries on the person of Smt. Deepti Kaur and Sh. Harpreet Singh
and the death of the foetus in the womb of Smt. Deepti Kaur. It is
also established that Respondent No.1 was driving the offending
vehicle in a rash and negligent manner on the day of accident
which was owned by Respondent no.2 and insured with
Respondent No.3. Thus, the issue no.1 is decided in favour of the
petitioners and against the Respondents No.1,2 and 3."
5. The Claimants' testimonies that the Second Respondent suddenly took a
U turn remained unchallenged and unrebutted. The Second Respondent
did not enter the witness box to give his version of the accident. The fact
that the Second Respondent took a U-turn and hit the car speaks volumes
for Respondent No.2's negligence in driving the heavy vehicle like a
dumper. I do not find any ground to interfere in the finding on
negligence reached by the Claims Tribunal.
6. Respondent Deepti Kaur in MAC APP.245/2012 suffered fracture of
shaft femur right with butterfly fragment. She remained admitted in Sir
Ganga Ram Hospital from 27.11.2008 to 02.12.2008. As per the patient's
history recorded in the discharge summary, the First Respondent was
initially treated in the hospital near to the place of accident in Sonepat
and was later on referred to Sir Ganga Ram Hospital. During the course
of her admission, the First Respondent underwent surgery i.e. IM
interlocking nailing right femur. She remained an outdoor patient for a
period of about four months. With the nature of injuries suffered by her
she could not attend her work for a period of about four months.
7. From the First Respondent's testimony, it was established that she was
getting a salary of `10,500/- while working with M/s. Vikas Yadav CA.
The First Respondent was a Graduate. I do not find any reason to
disbelieve her income of `10,500/- per month in the year 2008.
8. With the nature of injuries suffered, the First Respondent was not in a
position to attend her daily work of her own. In her testimony, the First
Respondent deposed that she had to engage two maids on permanent
basis to look after her husband and minor daughter and had to pay
`10,000/- as security for each of the maids in addition to `4,000/- per
month as salary to each one of them. She deposed that even on the date of
filing her Affidavit in (November, 2010) the maids were still working.
9. In the circumstances, compensation of `30,000/- in lump sum towards
Attendant charges, special diet and conveyance cannot be said to be
excessive.
10. I see no reason to disbelieve First Respondent's testimony regarding
engaging the maid servants. Even if the First Respondent did not engage
any Attendant and the gratuitous services were rendered by some or other
of her relations, the First Respondent is entitled to a suitable
compensation towards gratuitous services (Delhi Transport Corporation
and Anr. v. Lalita AIR 1981 Delhi 558).
11. Similarly, the First Respondent Harpreet Singh in MAC APP.246/2012
suffered injuries on his ribs, knee and forehead. He remained admitted in
Sir Ganga Ram Hospital from 25.11.2008 to 02.12.2008. He had to be
given 25 stitches on his face. He spent `83,684/- on his treatment. An
award of `84,000/- towards his treatment is not disputed by the Appellant
Insurance Company.
12. The Claims Tribunal on the basis of his ITR Ex.PW-1/1 for `2,43,280/-
awarded him a sum of `50,000/- towards loss of income for three months,
which to my mind, is just and reasonable.
13. The compensation awarded towards special diet, Attendant charges and
conveyance charges in view of the facts mentioned earlier is just and
reasonable.
14. The impugned judgment does not call for any interference. Both the
Appeals are accordingly dismissed.
15. The statutory deposit of `25,000/- if any, shall be refunded to the
Appellant Insurance Company in both the Appeals.
16. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 16, 2012
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