Delhi High Court
Tera Hi Tera Foods Pvt Ltd vs Raj Laxmi And Ors on 28 August, 2014
$~A-8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 28.08.2014
+ MAC.APP. 836/2012
TERA HI TERA FOODS PVT LTD ..... Appellant
Through Mr Anil Kumar, Adv.
Versus
RAJ LAXMI AND ORS ..... Respondents
Through Mr D K Sharma, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeal is filed seeking to impugn the award dated
14.5.2012. The appeal was filed by the appellant under section 173 of the
Motor Vehicles Act. The appellant is the owner of the offending vehicle
which caused the accident. The clam petition was filed by respondent No.1
under section 166 and 140 of the Motor Vehicles Act.
2. On 6.2.2006 respondent No.1 was crossing the road at Anand Vihar,
ISBT, Delhi when she was hit by a Maruti van said to be driven by
respondent No.2 in a rash and negligent manner. The respondent No.1 fell
down and sustained injuries/fracture because of which she became
permanently disabled.
3. Based on the evidence of the parties the Tribunal concluded that the
accident took place due to the rash and negligent driving of respondent
No.2.
4. On compensation the Tribunal awarded the following compensation.
Sl. No. On account of Amount (Rs.)
1 Towards loss of future income Rs.1,17,810/-
2 Towards attendant Rs.20,000/-
3 Towards conveyance and better diet Rs.30,000/-
4 Towards pain and suffering Rs.35,000/-
Total Rs.2,02,810/-
5. The Tribunal directed the insurance company- respondent No.3 to pay
the compensation amount to the claimant but however granted recovery
rights to respondent No.3 to recover the amount from the appellant and
respondent No.2.
6. The learned counsel for the appellant has made two submissions. He
firstly submits that the Tribunal has awarded compensation of excessive
amount. He secondly submits that the Tribunal has erroneously granted
recovery rights to respondent No.3 Insurance Company from the appellant,
namely, owner of the offending vehicle and respondent No.2 the driver of
the offending vehicle.
7. On the first submission, the learned counsel appearing for the
appellant submits that the compensation awarded to respondent No.1 is on
the higher side. He submits that respondent No.1 was already a victim of
polio and it is on record that she suffered prior disability. He submits that
the Tribunal has ignored that respondent No.1 was having some minor
injuries at the time of accident and yet awarded a huge compensation for the
minor injury suffered by respondent No.1.
8. A perusal of the award shows that the Tribunal has noted that as per
the discharge summary and medical record of the claimant/respondent No.1
on account of the accident her permanent disability increased to 51%. The
Tribunal further notes that she had disability up to 40% in relation to right
lower limb even prior to the accident. Hence the Tribunal takes into account
her enhanced disability as only 11% for the whole body for the purpose of
computing loss of income on account of permanent disability. The Tribunal
also notes that the respondent No.1 was earning Rs.3,500/- permanently as
she was a computer operator in the transport authority department, Anand
Vihar on contract basis with Virgo Softech Ltd. She was 28 years of age.
Her salary slip ExPW1A for the month of November, 2006 showed that she
was earning Rs.3,500/- per month. Relying on the judgment of the Supreme
Court in case of Santosh Devi vs. National Insurance Co.Ltd. and Ors.,
(2012) 6 SCC 421., an enhancement in the income for future increase
@50% was awarded. Taking the multiplier of 17 as the age of respondent
No.1 was 28 years, the loss of income due to permanent disability at 11%
was assessed as 1,17,810/-.
9. Regarding increase of 50% for future prospects in her salary it may be
noted that the Supreme Court in the recent judgment in the case of V.
Mekala vs. M. Malathi and Anr., 2014 ACJ 1441 delivered on 25.4.2014
noted in paragraph 19 as follows:-
"19. Therefore, In the light of the principles laid down in the
aforesaid case, it would be just and proper for this Court,
and keeping in mind her past results, to take `10,000/- as her
monthly notional income for computation of just and
reasonable compensation under the head of loss of income.
Further, the High Court has failed to take into consideration
the future prospects of income based on the principles laid
down by this Court in catena of judgments referred to supra.
Therefore, the Appellant is justified in seeking for re-
enhancement under this head as well and we hold that the
claimant-Appellant is entitled to 50% increase under this
head as per the principle laid down by this Court in the case
of Santosh Devi (supra)."
10. In the light of the facts of this case and the legal position the
compensation awarded by the Tribunal is just and reasonable. There are no
reasons to interfere with the computation of compensation awarded by the
Tribunal in the facts of this case.
11. Coming now to the second contention of learned counsel for the
appellant, namely, grant of recovery rights to the respondent No.3 Insurance
Company from the appellant and respondent No.2, learned counsel submits
that there is some confusion in the Award as the Tribunal has granted
recovery rights to the Insurance company from the appellant by wrongly
noting the submission of the insurance company that the driving license of
the driver respondent No.2 was fake.
12. In para 38 of the award the Tribunal noted the submissions of the
counsel for the insurance company that the driving license of the respondent
was fake. Hence, as per the submissions as noted the insurance company
would not be liable to indemnify the driver of the offending vehicle.
13. However, in para 17 of the award the Tribunal noted the testimony of
Dinesh Kumar, LDC from transport authority who appeared as R3W1 and
verified that respondent No.2 had a driving license but the driving license
authorised him to drive LMV (NT) and motorcycle only and not a
commercial vehicle.
14. Both the counsels agree that the fact of the matter is that the vehicle in
question was being used as a goods vehicle and the insurance cover was also
for a goods vehicle.
15. In the light of the said facts, keeping in mind the testimony of R3W1
the concerned LDC from the Transport Authority, it is obvious that
respondent No.2 the driver was authorised to drive only a LMV (Non-
Transport). He did not have a license to drive a goods carriage vehicle.
Hence, there is a clear breach of the terms and conditions of the insurance
policy. No grounds are made out to interfere in the Award of the Tribunal
granting recovery rights to the respondent No.3/Insurance Company.
16. In view of the above, the present appeal is dismissed.
17. The appellant pursuant to the interim order of this Court dated 3 rd
August, 2012 deposited with UCO Bank, Delhi High Court in fixed deposit
the award amount with up-to-date interest. The said amount shall be
released to respondent No.3, the insurance company along with accumulated
interest in satisfaction of the recovery rights of respondent No.3.The
statutory amount deposited by the appellant at the time of the filing of the
appeal may be refunded to the appellant.
JAYANT NATH, J.
AUGUST 28, 2014
vld
