Delhi High Court
National Insurance Company Ltd vs Taj Tappa & Ors. on 31 August, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 31st August, 2012
+ MAC APP. 449/2010
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Joy Basu, Adv.
versus
TAJ TAPPA & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This Appeal is directed against a judgment dated 05.04.2010 passed by
the Motor Accident Claims Tribunal (the Claims Tribunal) whereby a
compensation of `14,52,000/- was awarded in favour of the First
Respondent for having suffered injuries in a motor vehicle accident which
occurred on 22.11.2004.
2. On the fateful day (i.e. 22.11.2004), the first Respondent was alighting
from bus No.DL-IPB-5116. He was the last person to get down. While
the first Respondent was in the process of getting down from the bus, its
driver Kishan Singh (Respondent No.2) suddenly started the bus. As a
result of the jerk, the first Respondent fell down and suffered crush injury
resulting into amputation of his left leg below knee.
3. On appreciation of evidence, the Claims Tribunal found that the accident
was caused on account of rash and negligent driving of the offending bus
by its driver. The Claims Tribunal opined that although the first
Respondent as per Disability Certificate Ex.PW-1/1 suffered 75%
disability with respect to his left lower limb, but since the First
Respondent was a driver and would be unable to drive a vehicle, it took
100% loss of earning capacity and awarded the following compensation:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Pain, Shock and Suffering `50,000/-
2. Medical Bills ` 27,000/-
3. Loss of Salary Till Date ` 85,000/-
4. Loss of Salary (Loss of Earning Capacity) ` 8,40,000/-
5. Loss of Amenities ` 2,50,000/-
6. Compensation for Artificial Leg ` 2,00,000/-
Total ` 14,52,000/-
4. There is twin challenge to the judgment.
5. First, that the Respondent No.1 himself was under the influence of liquor
and thus, he must have fallen from the bus on
his own without there being any negligence on the part of the bus driver.
Second, that the compensation awarded towards loss of earning capacity
is excessive. There should have been deduction of one-third towards the
personal and living expenses. Reliance is placed on New India Assurance
Company Ltd. v. Charlie & Anr., (2005) 10 SCC 720.
6. The Claims Tribunal dealt with the question of negligence as under:-
"He deposed that he was doing the job of car driver at the time of
accident and drawing salary of `5,000/- and now he cannot drive
any vehicle and has to remain on bed. His evidence on rash and
negligent driving of the bus driver could not be questioned. PW2
HC Manjit Kumar has proved FIR on record as Ex.PW2/1A1 to
A3. PW3 Sh. S., Mehto, Medical Record Technician from RML
hospital has proved the medical record including discharge vide
Ex.PW3/Application stands disposed of. to A21. PW4 Sh. Joyti
Rambert Administrative Officer from Sai Hospital, Jungpura has
proved discharge letter, OPD card and bills of `16,712/- vide
Ex.PW4/B1 to B-10. Insurance Company has examined many
witnesses and by the evidence of R3W5 has tried to prove that the
injured was under the influence of alcohol vide his MLC
Ex.R3W1/A, though, in cross examination it is admitted that no
blood sample was taken to note level of alcohol."
7. The Respondent No.1's testimony that the accident was caused on
account of sudden movement of the stationary bus while he was in the
process of getting down was not challenged in cross-examination. The
driver of the bus Kishan Singh (Respondent No.2 herein) was not
produced to give his version of the accident. Thus, it is amply proved
that the accident occurred on account of the sudden start of the bus with a
jerk. Simply because the first Respondent was found to be having smell
of alcohol, was not enough to say that there was contributory negligence
on his part. The finding on negligence cannot be faulted.
8. The learned counsel for the Appellant places reliance on New India
Assurance Company Ltd. v. Charlie & Anr., (2005) 10 SCC 720 in
support of his contention that there should have been one-third deduction
towards personal expenditure.
9. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme
Court clarified that in case of an injured Claimant with a disability, what
is calculated is future loss of earning of the Claimant, payable to him.
Thus, there cannot be any deduction towards the personal and living
expenses. Para 27 of the report is extracted hereunder:-
"27. In the case of an injured claimant with a disability, what is
calculated is the future loss of earning of the claimant, payable to
the claimant, (as contrasted from loss of dependency calculated in
a fatal accident, where the dependent family members of the
deceased are the claimants). Therefore, there is no need to deduct
one-third or any other percentage from out of the income, towards
the personal and living expenses."
10. In view of Raj Kumar, it is evident that the deduction towards personal
and living expenses was rightly not made by the Claims Tribunal.
11. The Appeal is devoid of any merit; it is accordingly dismissed.
12. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 31, 2012
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