Delhi High Court
Rakesh Goel vs Mukesh Kumar & Ors. on 21 May, 2012
Author: G.P. Mittal
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:21st May, 2012
+ MAC. APP No.64/2009
RAKESH GOEL ..... Appellant
Through: Mr. Rakesh Tiku, Sr. Advocate
with Ms. Manjusha Wadhwa,
Advocate
Versus
MUKESH KUMAR & ORS. ..... Respondents
Through: Mr. K.L. Nandwani, Advocate
for the Respondent No.3
Insurance Company
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `1,07,610/-
granted in favour of the Appellant for having suffered injuries
in an accident which occurred on 01.06.2002.
2. There is twin challenge to the impugned judgment. Firstly, it is
urged that the Claims Tribunal erred in holding the Appellant
guilty of contributory negligence to the extent of 50% and,
secondly, that the compensation awarded was wholly
inadequate.
3. As far as the first contention is concerned, I need not labour
much. Admittedly, there was a head-on collision between a
Tata Indica Car No.HR02-H-9912 driven by the First
Respondent herein and another car Tata Indica No.DL7C-A-
2877 driven by the Appellant. A Claim Petition was filed by an
occupant of the Car No.HR 02-H-9912 against the Appellant as
also the driver of the other car which came to be decided on
26.04.2005. The Claims Tribunal, Kurukshetra presided over
by Sh. Bharat Bhushan Parsoon returned a finding that there
was negligence on the part of the Appellant and the First
Respondent in the ratio of 30:70. It is admitted by the learned
counsel for the Appellant that the said finding has not been
challenged by the Appellant and has thus become final between
the parties.
4. The Claims Tribunal while holding the Appellant liable for
contributory negligence to the extent of 50%, observed as
under:
"I have already discussed the evidence available
in this case. I am unfazed by the findings of the other
MACT. Certain points remain glaringly on record
which are inexorable. They are as under:
a) it was a head on collision between two cars;
b) that the road was a single road with no divider;
c) that the width of the road was not permissible for
three vehicles to pass on at the same time;
d) PW1 admits that a jeep was going ahead of him;
e) He also observed a car following it.
With the above facts available on record, the
same conclusively established that Rakesh Goel, who
was driving car number 2877 had ample chance of
realizing himself with regard to the situation on the
road. He had chances of averting the accident only if he
had been cautious of the fact of the width of the road
and the vehicle coming ahead from the opposite
direction.
As regards the negligence attributed to the car
driver of vehicle number 9912, the same set of facts
equally applies. In such a case, the negligence on the
part of vehicles colliding face to face, the equal
blameworthiness can be easily inferred without much
cracking of one's mind.
In the result, I hold that the accident occurred and
petitioners were injured to due to the part negligence on
the part of respondent number 1. The blameworthiness
on the part of petitioners is held at 50%. Hence, issue
number a stands answered partly as above."
5. In my view, all the conditions as laid down in Section 11 of the
Code of Civil Procedure were satisfied. The procedural law, at
least, the principles of CPC, in essential matters, like the
principles of res judicata equally applies to the proceedings
before a Claims Tribunal. Thus, the observation by the
Claimant that it was not bound by the finding of the earlier
decided petition by the competent Court of jurisdiction which
could entertain the subsequent Claim Petition defies logic and
well settled legal principles. Thus, I hold that there was
contributory negligence to the extent of 30:70 vis-à-vis the
Appellant and the First Respondent. 30% liability shall be
apportioned by the Appellant himself and 70% shall be
apportioned by the tortfeasor, its owner and the insurer.
6. A perusal of the Trial Court record reveals that the Appellant
too suffered serious injuries. In fact, the Appellant was initially
denied a sum of `18,000/- towards future treatment, but the
same was granted later on. The relevant portion of the
judgment regarding grant of compensation to the Appellant is
extracted hereunder:
"In the matter of Rakesh Goel, Ld. Counsel for the
petitioner argues that the petitioner had suffered five
fractures and his hip joint was dis-located. I have gone
through the petition of Rakesh Goel, he is working as
Architect with M/s NDMC, New Delhi. Ex.PW1/3 shows
that he could not attend the duties from the date of
accident i.e. 01.06.2002 till 19.07.2002. Ex.PW1/9 shows
that he suffered fracture in the bone and his dislocation.
The total medical expenses including the bills is `68,320/-
in which the future treatment of `18,000/- is added. A sum
of `8,000/- is also added towards the expenses of dentist.
PW8 shows that the petitioner was on medical leave
between 01.06.2002 to 21.07.2002. PW9 deposes that this
witness got reimbursed a sum of `19,895/-. The claim of
`18,000/- towards future treatment of Rakesh Goel, is not
supported by any expert evidence. In the result, the total
sum of medical expenses of `50,320/- can be allowed.
I propose to assess the compensation as under:
1. Pain and suffering: `60,000/-
2. Actual medical expenses: `50,320/-
3. Special diet and conveyance: `30,000/-
4. Expenses on attendant (Ex.PW1/5 to 1/7): `14,400/-
5. Loss of leave for 51 days: `42,500/-
6. Future medical expenses (as per PW7): `18,000/-
TOTAL `2,15,220/-
It was argued by the Ld. Counsel that the sum of
expenses spent on driver, ambulance, car-towing charges,
car loss suffered to the car and the amounts paid to ICICI
bank and the extra amount paid for purchase of car and
transportation of expenses be also awarded. In the written
calculations furnished by him, the same are claimed. The
same cannot be allowed for want of evidence and the
petition Rakesh Goel, being the one for the compensation
for the injuries sustained by him. Therefore, I am
persuaded to grant compensation on the counts claimed by
him. Considering the blameworthiness on the part of the
petitioner, the claim against the respondents shall be
maintained at 50% of the total compensation worked out
above which comes to `1,07,610/- (Rupees One Lac Seven
Thousand Six Hundred and Ten Only)."
7. It is urged by the learned counsel for the Appellant that the
compensation awarded towards pain and suffering is wholly
inadequate. No compensation was awarded for engaging a
driver. The compensation awarded towards expenses on
attendant is insufficient.
8. The injuries suffered by the Appellant were really serious. The
Appellant suffered five fractures and his hip joint was also
dislocated. The Appellant remained admitted in AIIMS from
01.06.2002 to 18.06.2002. He had to take leave for 51 days for
which adequate compensation of `42,500/- was granted to him.
9. It is difficult to measure the pain and suffering in terms of
money which has been suffered by the claimant on account of
serious injuries caused to him in a motor accident. Since the
compensation is required to be paid for pain and suffering an
attempt must be made to award compensation which may have
some objective relation with the pain and suffering underwent
by the victim of a motor accident. For this purpose, the Claims
Tribunal and the Courts normally consider the nature of injury;
the parts of the body where the injuries were sustained;
surgeries (if any) underwent by the victim; confinement in the
hospital and the duration of the treatment. Considering that
the Appellant was hospitalized for 18 days, had to undergo
surgery in AIIMS and had to take rest at home, the
compensation of `60,000/- seems to be just and reasonable.
10. The minimum wages of a skilled worker on the date of the
accident were `3103/-. The compensation of `14,400/- awarded
would be more than sufficient to meet the expenses spent on an
attendant for about two to three months.
11. It is urged that some compensation for engaging a driver and
ambulance charges should have been granted. As stated above,
a consolidated compensation of `30,000/- was awarded which
was reasonable to cover the ambulance and car-towing charges.
No further compensation was, therefore, required.
12. In the result, I do not find any ground for enhancement of the
total compensation of `2,15,220/-. I have held above that the
finding reached by the Claims Tribunal apportioning 50%
liability on the Appellant was not legal. The Claims Tribunal
being bound by the judgment dated 26.04.2005 of the Motor
Accident Claims Tribunal, Kurukshetra; the Respondents were
liable to pay 70% compensation awarded. Thus, instead of a
compensation of `1,07,610/-, the Respondents No.1 to 3 are
liable to pay a compensation of `1,50,654/-.
13. The enhanced compensation of `43,044/- shall carry interest @
7.5% per annum from the date of the filing of the Petition till its
deposit with the Claims Tribunal. The Respondent No.3
Insurance Company is directed to deposit the enhanced
compensation along with interest in the name of the Appellant
in UCO Bank, Delhi High Court Branch within six weeks,
which shall be released to the Appellant on deposit.
(G.P. MITTAL)
JUDGE
MAY 21, 2012
pst
