Delhi High Court
Oriental Insurance Co. Ltd. vs Sidharath Bag & Ors. on 29 May, 2012
Author: G.P. Mittal
$~5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:29th May, 2012
+ FAO. No.364/2002
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
SIDHARATH BAG & ORS. ..... Respondents
Through: Mr. Nitinjya Chaudhary,
Advocate
WITH
+ FAO. No.34/2003
SIDHARATH BAG & ORS. ..... Appellants
Through: Mr. Nitinjya Chaudhary,
Advocate
Versus
ORIENTAL INSURANCE CO. LTD. ..... Respondent
Through: Mr. Pankaj Seth, Advocate
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals (FAO. No.364/2002 and FAO. No.34/2003)
arise out of a judgment dated 05.03.2002 in Suit No.266/95
whereby a compensation of `2,94,055/- was awarded in favour
of Sidharath Bag for having suffered injuries in an accident
which occurred on 17.11.1994.
2. FAO. No.364/2002 is preferred by Oriental Insurance Co.
Ltd.(hereinafter referred to as the Appellant) on the ground that
the policy was fraudulently obtained in collusion with the
official of the Appellant and thus it had no liability to indemnify
the injured. It is stated that the compensation towards loss of
future earning capacity was not permissible; the Motor Accident
Claims Tribunal(the Claims Tribunal) awarded a compensation
of `1,50,000/- towards loss of earning capacity without any
basis and the compensation of `80,000/- awarded towards
conveyance charges is exorbitant and excessive.
3. On the other hand, the plea of Sidharath Bag, the Appellant in
FAO No.34/2003 (hereinafter referred to as the Claimant) is
that no compensation was awarded towards loss of amenities in
life; the compensation awarded towards loss of earning capacity
and pain and suffering was very meagre.
4. Before dealing with the respective contentions of the parties, I
would tabulate the compensation awarded by the Claims
Tribunal hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Loss of Pay `23,640/-
2. Loss of Pay to his Wife `4,415/-
3. Expenses on a/c of `9,000/-
employing Maid
4. Expenses on a/c of `87,000/-
Conveyance
5. Loss of Pain and `20,000/-
Suffering
6. Loss of Permanent `1,50,000/-
Disability
Total `2,94,055/-
5. On 17.11.1994 at about 5.45 p.m., the Claimant was proceeding
on his two-wheeler DL-4S-1150 from Connaught Place to
Paschim Vihar. He was in the process of taking a right turn on
green signal from Panchkuian Road to Chitra Gupta Road. A
matador No. DL-IL-1645 came from behind and started taking
a U-turn at the said intersection from his left side. The matador
hit the two-wheeler as a result of which the Claimant fell down
on the road. The Appellant(the Insurance Company) does not
dispute the factum of accident and the negligence on the part of
the matador driver and that the vehicle was duly insured. The
Claimant suffered fracture of his right femur. He was initially
removed to Dr. Ram Manohar Lohia Hospital(RML Hospital).
He was then shifted to Jaipur Golden Hospital where he
remained admitted from 17.11.1994 to 23.11.1994. He was
operated upon in Jaipur Golden Hospital. A four hole barrel
plate with 95 mm screw was used to fix the bone. According
to the Claimant although he joined his duties in February,
1995, he still had pain and was advised hip replacement. The
compensation awarded on account of loss of pay to the
Claimant and to his wife (who also took leave to attend to the
Claimant) and expenditures on account of employing a maid
are not disputed by the parties. I shall deal with the heads of
compensation one by one where the parties dispute the award.
CONVEYANCE:
6. A perusal of the compensation awarded extracted earlier would
show that a sum of `87,000/- was awarded on account of
conveyance. It is urged by the learned counsel for the
Claimant that the compensation awarded is very meagre
considering the fact that the Claimant had to depend on a
TSR/taxi throughout his life. On the other hand, it is urged by
the learned counsel for the Appellant Insurance Company that
the compensation awarded is excessive and exorbitant.
7. To appreciate the respective contentions, it would be
appropriate to refer to the Claimant's testimony as PW2.
Admittedly, the accident took place on 17.11.1994. He was in
Hospital for six days and was advised bed rest for six weeks.
He was given a fitness certificate to resume his duties w.e.f.
20.02.1995. The number of visits to the doctor before
resuming his duties has not been given. Considering the nature
of injuries, there might be five to seven visits to the doctor
before the Claimant resumed his duties. A perusal of the Trial
Court record shows that even after resuming his duties, the
Claimant still had pain. He consulted Dr. K.J. Dholakia, Dr.
P.S. Maini, Dr. Debasish Chattopathyay and Dr. Murthy in
RML Hospital during the year 1996 to 1999. The Claimant
testified that on joining his duties, he used to walk with the
help of crutches till 01.06.1995 and for one month thereafter
with the help of a stick. He stated that during this period he
used to spend `3000/- to 3,500/- on conveyance. In cross-
examination, the Claimant admitted that Maruti Employees
Society had organized a bus service for the employees who are
working in the factory and he had been availing the said
facility to reach the factory. No expert evidence has been
produced by the Appellant to prove that he was unable to drive
a two-wheeler after he recovered from the injuries. The
Claimant was, therefore, entitled to a sum of `12,000/- for
using a TSR from 20th February to June, 1995. In addition, the
Claimant was entitled to a sum of `5,000/- towards conveyance
for visiting various doctors and the Hospital for consultation
after the accident. Thus, the compensation of `17,000/- ought
to have been awarded to the Claimant instead of `87,000/-
awarded by the Claims Tribunal. The compensation under this
head is accordingly reduced from `87,000/- to `17,000/-.
PAIN AND SUFFERING:
8. As stated earlier, the Claimant suffered fracture of his right
femur. He was operated in Jaipur Golden Hospital on
19.11.1994 and was discharged on 23.11.1994. A perusal of
the documents Exs. P3 to P7 shows that the Claimant was still
feeling pain and, therefore, had to consult various doctors
which shows that he suffered 25% permanent disability on
account of restriction of movement and shortening of his right
leg by half an inch. 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 `20,000/- awarded towards the pain and
suffering was on the lower side. Considering that this accident
took place in 1994, the same needs to be enhanced to `40,000/.
I order accordingly.
PERMANENT DISABILITY AND LOSS OF EARNING
CAPACITY:
9. It is urged by the learned counsel for the Claimant that
considering the Claimant's salary to be `7,543/- per month the
compensation awarded towards loss of earning capacity was on
the lower side. On the other hand, the learned counsel for the
Appellant Insurance Company urges that the Claimant earned
promotion even after the accident and in the absence of any
evidence as to the loss of future earning, the Claimant was not
entitled to any compensation under this head. In Raj Kumar v.
Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme Court
brought out the difference between permanent disability and
functional disability resulting in the loss of earning capacity. It
was laid down that the compensation on account of loss of
earning capacity has to be granted in accordance to the nature
of job undertaken by the victim of a motor accident. In his
cross-examination recorded on 04.01.2000, the Claimant
admitted that his salary on the date of recording his statement
was `20,000/- per month. He admitted that he had been
promoted as Service Executive in Maruti Udyog Ltd. Thus, he
(the Claimant) did not suffer any financial loss in his earning
capacity on account of the injuries. He was not entitled to any
compensation under this head. Rather, he should have been
granted appropriate compensation towards loss of amenities in
life.
10. Obviously, because of the permanent disability and shortening
of his right leg by half an inch, the Claimant would always feel
handicapped in running and attending to his day to day work.
In the case of Govind Yadav v. New India Insurance Co. Ltd.
(2011) 10 SCC 683, the Claimant suffered amputation of leg
above knee in an accident which occurred in the year 2004.
The Hon'ble Supreme Court granted a sum of `1,50,000/-
towards loss of amenities in life and loss of marriage prospects.
In this case, the Claimant was a married person and the
disability was much less. In the facts and circumstances, I
would award a compensation of `60,000/- towards loss of
amenities in life instead of a compensation of `1,50,000/-
towards permanent disability.
11. No compensation was awarded towards special diet.
Considering that the Claimant remained confined to bed for
about three months, I would award a compensation of `5,000/-
towards special diet.
12. It is urged by the learned counsel for the Claimant that the
Claims Tribunal erred in not awarding any compensation
towards future treatment. He urges that the Claimant was
advised hip replacement by Dr. K.J. Dholakia, Dr. P.S. Maini
and Dr. Murthy of RML Hospital and thus a sum of `2,00,000/-
should have been awarded to the Claimant towards future
treatment.
13. The Claimant preferred not to examine any doctor to prove that
he would need a hip replacement. Ex.P8 is the opinion (dated
23.10.1996) whereby Dr. Debasish Chattopathyay advised him
partial hip replacement. By an advice Ex.P7 (dated
10.09.1997), Dr. P.S. Maini advised removal of the plate and
total hip replacement. The Claimant was not satisfied with the
advice of Dr. Debasish Chattopathyay and Dr. P.S. Maini. He
consulted Dr. K.J. Dholakia, an Orthopaedics Surgeon in
Bombay and vide Ex.P6 (dated 25.11.1999), the doctor advised
"he is able to carry out his work. So continue normal activity.
If pain and disability is severe then only answer is total hip
replacement." These opinions by the experts (although not
legally proved) were merely advices. None of these doctors
were summoned to prove that the Claimant really needed hip
replacement. Moreover, this accident took place in the year
1994. We are in the year 2012 and eighteen years have already
passed since the date of the accident. The Claimant has not
filed any application/document to show that he has undertaken
a hip replacement during the pendency of the Appeal and has
incurred any expenditure thereon. In the circumstances, the
Claims Tribunal rightly declined to award any compensation
towards future treatment.
14. It is urged by the learned counsel for the Claimant that an
amount of `2,04,908/- was spent on the medical treatment.
This amount was reimbursed to him by his employer but the
tortfeasor cannot gain advantage because of the benefit
provided by his employer. Thus, it is urged that the Claimant
was entitled to the amount spent on medical treatment
irrespective of its reimbursement.
15. In Helen C. Rebello v. Maharashtra SRTC, 1999 (1) SCC 90,
the Supreme Court considered various English decisions and it
was held that whatever the victim or the legal representative of
the deceased get on account of accidental death would be liable
to be deducted from the gain on account of the compensation
awarded. Paras 34 and 35 of the report is extracted hereunder:
"34. So far as the general principle of
estimating damages under the common law is
concerned, it is settled that the pecuniary loss
can be ascertained only by balancing on one
hand, the loss to the claimant of the future
pecuniary benefits that would have accrued to
him but for the death with the "pecuniary
advantage" which from whatever source comes
to him by reason of the death. In other words, it
is the balancing of loss and gain of the claimant
occasioned by the death. But this has to change
its colour to the extent a statute intends to do.
Thus, this has to be interpreted in the light of
the provisions of the Motor Vehicles Act, 1939.
It is very clear, to which there could be no doubt
that this Act delivers compensation to the
claimant only on account of accidental injury or
death, not on account of any other death. Thus,
the pecuniary advantage accruing under this
Act has to be deciphered, co-relating with the
accidental death. The compensation payable
under the Motor Vehicles Act is on account of
the pecuniary loss to the claimant by accidental
injury or death and not other forms of death. If
there is natural death or death by suicide,
serious illness, including even death by
accident, through train, air flight not involving
motor vehicle, would not be covered under the
Motor Vehicles Act. Thus, the application of
general principle under the common law of loss
and gain for the computation of compensation
under this Act must co-relate to this type of
injury or deaths, viz., accidental. If the words
'pecuniary advantage' from whatever source are
to be interpreted to mean any form of death
under this Act it would dilute all possible
benefits conferred on the claimant and would be
contrary to the spirit of the law. If the
'pecuniary advantage' resulting from death
means pecuniary advantage coming under all
forms of death then it will include all the assets
movable, immovable, shares, bank accounts,
cash and every amount receivable under any
contract. In other words, all heritable assets
including what is willed by the deceased etc.
This would obliterate both, all possible
conferment of economic security to the claimant
by the deceased and the intentions of the
legislature. By such an interpretation the
tortfeasor in spite of his wrongful act or
negligence, which contributes to the death,
would have in many cases no liability or meagre
liability. In our considered opinion, the general
principle of loss and gain takes colour of this
statute, viz., the gain has to be interpreted which
is as a result of the accidental death and the loss
on account of the accidental death. Thus, under
the present Act whatever pecuniary advantage is
received by the claimant, form whatever source,
would only mean which comes to the claimant
on account of the accidental death and not other
form of death. The Constitution of the Motor
Accidents Claims Tribunal itself Under Section
110 is, as the Section states;
"...for the purpose of adjudicating upon claims
for compensation in respect of accidents
involving the death of, or bodily injury to,..."
35. Thus, it would not include that which
claimant receives on account of other form of
deaths, which he would have received even
apart from accidental death. Thus, such
pecuniary advantage would have no correlation
to the accidental death for which compensation
is computed. Any amount received or receivable
not only on account of the accidental death but
that would have come to the claimant even
otherwise, could not be construed to be the
'pecuniary advantage', liable for deduction.
However, where the employer insures his
employee, as against injury or death arising out
of an accident, any amount received out of such
insurance on the happening of such incidence
may be an amount liable for deduction.
However, our legislature has taken note of such
contingency, through the proviso of Section 95.
Under it, the liability of the insurer is excluded
in respect of injury or death, arising out of, in
the course of employment of an employee."
(underlines are mine).
16. Thus, the Claimant is not entitled to the medical expenditure he
spent on treatment of injuries which has been reimbursed to
him by his employer. In view of the aforesaid discussion, the
compensation awarded is tabulated hereunder:
Sl. Compensation under Awarded by
various heads this Court
No.
1. Conveyance `17,000/-
2. Loss of Pain and `40,000/-
Suffering
3. Loss of Amenities `60,000/-
4. Special Diet `5,000/-
5. Loss of Pay(awarded by `23,640/-
the Claims Tribunal)
6. Loss of Pay to his Wife `4,415/-
(awarded by the Claims
Tribunal)
7. Expenses on a/c of `9,000/-
employing Maid
(awarded by the Claims
Tribunal)
Total `1,64,055/-
17. The overall compensation thus stands reduced from `2,94,055/-
to `1,64,055/-.
18. The excess compensation of `1,30,000/- along with
proportionate interest and the interest earned, if any, during the
pendency of the Appeal, if deposited, shall be refunded to the
Appellant Insurance Company.
19. The compensation held payable along with proportionate
interest and the interest accrued during the pendency of the
Appeal shall be released in favour of the Claimant.
20. The statutory amount of `25,000/- shall be refunded to the
Appellant Insurance Company.
21. Both the Appeals are disposed of in above terms.
22. Pending Applications stand disposed of.
23. No costs.
(G.P. MITTAL)
JUDGE
MAY 29, 2012
pst
