Delhi High Court
New India Assurance Co. Ltd. vs Jagdish Chand & Ors. on 26 September, 2012
Author: G.P. Mittal
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th September, 2012
+ MAC. APP. No.765/2010
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Kanwal Chaudhary, Advocate
Versus
JAGDISH CHAND & ORS. ....Respondents
Through: Mr. S.C. Aggarwal with Mr. Harmesh
Kumar, Advocates for the Respondent
No.1
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant New India Assurance Co. Ltd. impugns a judgment dated
31.08.2010 passed by the Motor Accident Claims Tribunal(the Claims
Tribunal) whereby a compensation of `5,79,173/- was awarded in favour
of the First Respondent for having suffered injuries in a motor vehicle
accident which occurred on 16.02.2006.
2. The finding on negligence is not challenged by the Appellant.
3. There is twin challenge to the conclusion reached by the Claims Tribunal.
First, the compensation awarded is exorbitant and excessive in asmuch as
award of compensation of `1,00,000/- towards pain and suffering was on
the higher side and award of a sum of `82,500/- towards loss of income
was excessive. Second, the Appellant proved that the licence held by the
Respondent No.2 was fake, yet the Appellant was made liable to pay the
compensation. Even the recovery rights were not granted.
4. Per contra, the learned counsel for the First Respondent states that he
(Respondent No.1) suffered very serious injuries, that is, as many as eight
fractures on various parts of the body. He remained admitted in
Indraprastha Apollo Hospital for about 80 days and remained confined to
the bed for over a year. The compensation awarded is just and
reasonable. It is urged that the Appellant failed to prove wilful breach of
the terms and conditions of the policy and, therefore, the recovery rights
were refused.
QUANTUM:
5. The compensation of `5,79,173/- awarded by the Claims Tribunal is
tabulated hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Medical Charges `2,33,673/-
2. Future Estimated cost of ` 1,13,000/-
Treatment
3. Pain and Suffering ` 1,00,000/-
4. Loss of Income ` 82,500/-
5. Attendant Charges ` 25,000/-
6. Conveyance Charges ` 10,000/-
7. Special Diet ` 15,000/-
Total ` 5,79,173/-
6. While dealing with the quantum of compensation, the Claims Tribunal
held as under:
"15. The evidence of PW-3 Jagdish Chand is relevant on this
issue. According to him he was working in Grand Hotel, Vasant
Kunj, New Delhi as a Trainee Cook and was earning Rs.5500/-
per month. His pay slip has been proved as Ex.PW3/3.
16. According to PW-3 after the accident he was taken to LBS
Hospital. Copy of the MLC has been proved as Ex.PW3/4 from
where he was shifted to Apollo Hospital where he remained
admitted from 16.02.2006 to 1.05.2006. It has been deposed by
PW3 that he has received head injury and also have had
fractures in other parts of the body and his discharge summary
has been proved by him as Ex.PW3/9. Even after discharge
from the hospital his treatment had continued in OPD upto
04.09.2006. According to PW-3 on 05.09.2006 he was again
admitted in Apollo Hospital for bone grafting from where he
was discharged on 11.09.2006. The admission and discharge
bill of the said hospital has been proved by him as Ex.PW3/48
and Ex.PW3/49. According to him he was advised rest for six
months from 11.09.2006 and certificate of the hospital to this
effect has been proved by him as Ex.PW3/8.
20. Keeping in view the nature of injuries petitioner is awarded
Rs.1,00,000/- on account of pain and suffering. He is allowed
Rs.82,500/- on account of loss of income as claimed by him in
para 16 of his affidavit. He is awarded a sum of Rs.25,000/- on
account of attendant charges. He is also awarded a sum of
Rs.10,000/- for conveyance and Rs.15,000/- for special diet."
7. A certificate Ex.PW3/58 whereby the First Respondent was advised rest
for a period of six months w.e.f. 11.11.2006 is extracted hereunder:
"Mr. Jaggdish Chand 25 years male is under my care for the
following diagnosis since 16th February, 2006.
1) Polytrauma with head injury
2) Fracture right neck of scapula
3) Fracture right Ilium
4) Fracture right Pubic Rami
5) Fracture right tibial shaft
6) Fracture right lateral malleolous
7) Fracture right medical malleolous
8) Fracture lamina of C. Vertera (bialateral)
I have advised him rest for a period of 6 months w.e.f. 11th
September 2006."
8. Thus, the First Respondent suffered seven fractures on various parts of
his body apart from the head injury. As stated earlier, he remained
admitted in Indraprastha Apollo Hospital from 16.02.2006 to 01.05.2006
and then from 05.09.2006 to 11.09.2006. The First Respondent
underwent successive surgeries and he was advised further surgery to
remove the nail by documents Exs.PW3/75 and PW3/76.
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 multiple fractures all over the Respondent
No.1's body, the period of hospitalization and confinement at home, the
compensation of `1,00,000/- towards pain and suffering cannot be said to
be excessive or exorbitant.
10. As regards the loss of income, in para 16 of the affidavit the First
Respondent deposed as under:
"That I say that I have suffered financial loss on account of
salary to the tune of `82,500/-(Rupees eighty two thousand five
hundred only) for the period 17-02-2006 to 06-05-2007 as no
salary for this period was given to me by my employer."
11. This part of First Respondent's testimony was not challenged in cross-
examination. It is further supported by the document Ex.PW3/58. His
salary @ `5,500/- per month was duly proved. In the circumstances,
award of compensation of `82,500/- towards loss of income was justified.
LIABILITY:
12. It is urged by the learned counsel for the Appellant that the Appellant
successfully proved breach of the terms of the policy. The
owner(Respondent No.3) did not come forward to give any explanation
as to the circumstances under which he entrusted the offending vehicle to
the Second Respondent. As the Appellant discharged the initial onus of
proving the breach of the terms and conditions of the policy, thus, argues
the learned counsel, the Appellant was entitled to recovery rights.
13. During inquiry before the Claims Tribunal, the Second Respondent(driver
of the offending vehicle) filed a written statement denying negligence.
He took up the plea that he (Respondent No.2) was driving commercial
vehicles for the last many years. He was a trained driver and possessed a
valid driving licence which was taken into possession by the police at the
time of the accident. He stated that till date the Second Respondent had
not caused any accident(except the accident in question). The Appellant
did not controvert the claims made by Second Respondent in the written
statement. Rather, a vague and general defence was taken that if the
driver did not possess a valid driving licence at the time of the accident,
the Appellant would not be liable to pay any compensation to the
Claimants.
14. The Appellant relies on the report Ex.R3W1/A given by an Investigator
Prem Gautam. According to the learned counsel, as per this report, the
RTO Meerut informed him(the Investigator) that licence No.DL-J-
69916/Meerut/1990 was not issued by the Motor Licensing Authority,
Meerut. Thus, the licence held by the Second Respondent at the time of
the accident issued by the MLO although was genuine cannot be said to
be valid as the initial licence was a fake one.
15. No official from the office of MLO, Meerut was summoned to prove the
report Ex.R3W1/B. Amit Kumar Singh, R3W1, Administrator Officer of
the Appellant did not depose anything about the signatures on the
document Ex.R3W1/B. Moreover, Ex.R3W1/B nowhere states that the
initial licence was a fake one. It is well settled that in order to avoid
liability, it is for the Insurance Company to prove that there is breach of
the terms and conditions of the policy. The Appellant Insurance
Company has utterly failed to establish that the initial licence issued in
the year 1990 was fake.
16. Moreover, no notice under Order XII Rule 8 CPC was given to the
Respondents No.2 and 3 calling upon them to produce the original licence
or to depose about its genuineness. No explanation was sought by giving
any notice to the owner that the licence held by the driver was fake.
Thus, there is no escape from the conclusion that the Appellant Insurance
Company failed to establish that there was any wilful breach of the terms
of the policy. The Appellant, therefore, cannot escape its liability to
indemnify the insured.
17. The Appeal is devoid of any merit; the same is accordingly dismissed.
18. The compensation deposited shall be released to the First Respondent in
terms of the orders passed by the Claims Tribunal.
19. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company.
20. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 26, 2012
pst
