Delhi High Court
Dropti vs National Insurance Company ... on 29 May, 2012
Author: G.P. Mittal
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:29th May, 2012
+ MAC. APP. No.382/2008
DROPTI ..... Appellant
Through: Mr. Nitinjay Chaudhary,
Advocate
Versus
NATIONAL INSURANCE COMPANY LIMITED AND ORS.
..... Respondents
Through: Mr. S.L. Gupta with Mr. Ram
Ashray, Advocates for the
Respondent No.1 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 `4,01,000/-
awarded to the Appellant (now deceased) through her legal
representatives for having suffered injuries in an accident which
occurred on 05.11.2003.
2. On 05.11.2003 at about 4:15 pm while crossing the Ring Road
at ISBT Sarai Kale Khan, the Appellant was hit by a Haryana
Roadways bus No.HR-66-0204 which was being driven in a
rash and negligent manner by its driver (the Respondent No.3).
3. The Motor Accident Claims Tribunal (the Claims Tribunal) by
the impugned judgment awarded a total compensation of
`4,01,000/-, which is tabulated hereunder:
Sl.No. Compensation under various Awarded by the
heads Claims Tribunal
1. Medical Treatment `85,000/-
2. Conveyance Charges `10,000/-
3. Special Diet `10,000/-
4. Pain and Agony `50,000/-
5. Attendant Charges `36,000/-
6. Permanent Disability Loss of `25,000/-
Amenities of Life
7. Loss of Income `1,85,000/-
Total `4,01,000/-
4. It is urged by the learned counsel for the Appellant that
considering the nature of injuries, duration of the treatment,
leave of 37 months obtained by the Appellant, it would be
apparent that the compensation of ` 50,000/- awarded towards
pain and suffering, `25,000/- towards of amenities of life,
`10,000/- each towards conveyance charges and special diet
was on the lower side. It is urged that the Appellant's income
was proved to be `11,073/- per month. The Claims Tribunal
erred in awarding a compensation of `1,85,000/- @ `5,000/- per
month instead of `11,073/- p.m. which was duly approved by
the Appellant's employer.
5. In the absence of any Appeal by any of the Respondents,
finding on negligence has attained finality. My task is to find
out if the compensation awarded needs any enhancement.
6. The Appeal must succeed.
7. The discharge summaries Exs.PW1/1 to PW1/5 (for different
period of hospitalization) reveal that the Appellant suffered
superacondylar (Rt.) femur with quadriparesis and bladder
bowel involvement, supra condylar (Rt.) femur with
Quadriparesis with right cerebello pontine angle meningioma.
The Appellant underwent several surgeries one after the other.
The Claims Tribunal dealt with the treatment received by the
Appellant in para 28 of the impugned judgment, which is
extracted hereunder:
"28. The petitioner in his testimony as PW4 had
deposed that immediately after the accident she was
rushed to AIIMS hospital but there being no bed
available, she was taken to Safdarjung hospital. She
remained under treatment till 14.11.2003. She was not
satisfied with the treatment given and took her
discharge from the Safdarjung hospital and the
discharge summary of the Safdarjung hospital is
Ex.PW4/1. On the same day she got herself admitted at
St. Stephen's hospital where she remained under
treatment till 26.02.2004. The discharge summary of
St. Stephen's hospital is Ex PW1/1. She thereafter
continued with her follow up treatment till 19.4.2004
and visited the hospital after every fortnight. She was
admitted in St. Stephen's hospital on 19.4.2004 and
remained under treatment till 11.5.2004. The discharge
summary of St. Stephen's hospital is Ex PW1/3. She
was admitted in St. Stephen's hospital for third time on
20.2.2005 till 4.3.2005 and the discharge summary of
St. Stephen's hospital is Ex.PW1/7. She got admitted in
the St. Stephen's hospital for the 4th time on 30.5.2005
till 1.7.2005 and the discharge summary of St.
Stephen's hospital is Ex. PW1/5. In between she
remained on bed rest and regularly visited the hospital
for follow up treatment."
8. The Appellant's condition after the accident was really bad. As
has been observed by the Claims Tribunal, the Appellant was
not satisfied with the treatment being given to her in Safdarjang
Hospital till 14.11.2003. She got herself discharged from
Safdarjang Hospital on that day and got herself admitted in St.
Stephen Hospital. Initially, she remained admitted there upto
26.02.2004. She continued to receive the treatment till
16.04.2008. She was readmitted in St. Stephen Hospital on
19.04.2004 and was discharged on 11.05.2004. She was then
admitted again on 20.02.2005 to 04.03.2005 and 30.05.2005 to
01.07.2005. The Appellant underwent several surgeries during
this period and had to undergo pain and suffering not only due
to surgeries and hospitalization but during the follow-up
treatment also.
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 the
nature of injuries, the period of hospitalization and long
duration of the treatment, the compensation of `50,000/-
awarded towards the pain and suffering was on the lower side.
The same is enhanced from `50,000/- to `75,000/.
10. As per disability the Appellant suffered permanent disability in
respect of her right lower limb to the extent of 30% on account
of stiff knee. The compensation of `25,000/- awarded
considering the serious nature of injuries mentioned earlier is on
the lower side. The same is enhanced to `75,000/-.
Considering the duration of treatment, the compensation
awarded towards special diet and conveyance is raised from
`10,000/- each to `20,000/- each.
11. The bone of contention is the award of compensation towards
loss of income. It is established on record that the Appellant
had to take 37 months leave. The Claims Tribunal accepted the
same and awarded compensation for loss of income for 37
months @ `5,000/- per month. The Claims Tribunal declined to
accept the Appellant's salary to be `11,073/-. The reason given
in para 38 of the impugned judgment is extracted hereunder:
"38. The petitioner in her testimony had deposed
that her gross monthly salary is `11,043/- while she
was working as Safai Karamchari with India Trade
Promotion Organisation. The petitioner had failed
to prove her salary on record. Even PW2 the
witness examined from the department had also not
produced the salary record of the petitioner. The
petitioner in her cross examination had admitted
that she is now getting salary of `6000/- per month.
Therefore, her net salary may be taken as `5000/-
per month for 37 months. She is awarded a sum of
`1,85,000/-(`5000/- x 37 months) towards her loss
of income."
12. It may be noticed that in the Claim Petition, the Appellant
described her salary to be `9,000/- per month plus perks, which
was not traversed by the Respondent Insurance Company
specifically or by necessary implication. PW2 B.K. Garg,
Deputy Manager, Administration, ITPO testified that in
October, 2003 Appellant's gross salary was `11,073/-. This part
of PW2's testimony was not challenged in the cross-
examination. It was not suggested to him if it included any
arrears from previous month. In her examination-in-chief, the
Appellant testified her salary to be `11,073/- per month. Her
admission in the cross-examination that she was getting a salary
of `6,000/- per month or that she used to get `7,000 to 8,000/- in
cash was the carry home salary after deduction towards GPF,
Group Insurance and Advances, if any, taken by an employee.
In the absence of any cross-examination of PW2 on this aspect,
I would accept the Appellant's salary on the date of the accident
to be `11,073/-. Thus, she would be entitled to `4,63,710/-
instead of `1,80,000/- awarded by the Claims Tribunal towards
loss of income for 37 months.
13. The overall compensation awarded is tabulated hereunder:-
Sl. Compensation under Awarded by Awarded by
various heads the Claims this Court
No. Tribunal
1. Medical Treatment `85,000/- `85,000/-
2. Conveyance Charges `10,000/- `20,000/-
3. Special Diet `10,000/- `20,000/-
4. Pain and Agony `50,000/- `75,000/-
5. Attendant Charges `36,000/- `36,000/-
6. Permanent Disability `25,000/- `75,000/-
Loss of Amenities of Life
7. Loss of Income `1,85,000/- `4,09,701/-
Total `4,01,000/- `7,20,701/-
14. Thus, the compensation is enhanced by `3,19,701/- which shall
carry interest @ 7.5% per annum as granted by the Claims
Tribunal.
15. The Appellant died during the pendency of the Appeal. The
enhanced compensation shall be payable to the legal
representatives of the deceased Appellant in equal proportion.
16. The Respondent No.1 National Insurance Co. Ltd. is directed to
deposit the enhanced compensation along with interest in UCO
Bank, Delhi High Court Branch in the name of the legal
representatives of the deceased Appellant within six weeks.
17. The Appeal is allowed in above terms.
18. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
MAY 29, 2012
pst
