Delhi High Court
New India Assurance Co Ltd. vs Joginder Singh & Ors on 10 March, 2014
Author: Suresh Kait
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10th March, 2014
+ MAC.APP. No.1023/2012
NEW INDIA ASSURANCE CO LTD. ..... Appellant
Represented by: Mr. L.K. Tyagi, Adv.
versus
JOGINDER SINGH & ORS ..... Respondents
Represented by: NEMO.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present appeal has been preferred against the impugned award
dated 19.07.2012, whereby Ld. Tribunal has awarded compensation as
under:
"Pecuniary Damages (Special damages):
a) Medical Expenses --------- Rs.72,849/-
b) Loss of income --------- Rs.64,800/-
c) Special diet expenses --------- Rs.25,000/-
d) Conveyance Charges --------- Rs.25,000/-
Non-pecuniary damages (General damages):
e) Pain and suffering, mental shock
and trauma --------- Rs.1,50,000/-
Total Rs. 3,37,649"
Ld. Tribunal has also awarded interest @ 12% per annum from the
date of filing of the Claim Petition till realization of the amount.
2. Ld. Counsel appearing on behalf of the appellant submits that
respondent no. 1 / claimant deposed before the Ld. Tribunal that he was in
the business of spare-parts and was earning a sum of Rs.15,000/- per
month. However, he failed to produce any material on record to prove the
same. In such eventuality, Ld. Tribunal ought to have assessed the salary
of the injured / claimant as Rs.4,400/- as per the Minimum Wages Act,
1948, applicable to a matriculate prevalent at the time of accident.
3. Ld. Counsel further submits that respondent no.1 was not assessed
with the permanent disability, despite, Ld. Tribunal has awarded
compensation for a sum of Rs.1,50,000/- towards pain and suffering which
is on a higher side.
4. It is further submitted that Ld. Tribunal erred in awarding rate of
interest @ 12% per annum which is also on the higher side.
5. Lastly, Ld. Counsel submits that counsels fee of Rs.15,000/- and
Rs.3,000/- towards out of pocket expenses have been wrongly granted as
there is no provision in the Motor Vehicles Act, 1948 to grant the same.
6. As far as the issue of income of Rs.10,800/- per month as considered
by the Ld. Tribunal is concerned, the claimant / injured claimed that he
was in business of spare-parts and was earning Rs.15,000/- per month.
Ld. Tribunal while relying upon the case of New India Assurance
Company Ltd. v. Bal Kishan Pawar and Ors. in MAC. Appeal No.
246/2007 which was decided by this court following the dictum of the
Apex Court in the case of MCD v. Association of Victims of Uphaar
Tragedy AIR 2012 SC 100 has assessed the income of the injured as
Rs.10,800/-. Therefore, on this issue, I do not find any discrepancy in the
order passed by the Ld. Tribunal.
7. As the issue of granting compensation of Rs.1,50,000/- towards pain
and sufferings is concerned, the claimant, though had not suffered
permanent disability, however as per his medical record, he had suffered
multiple fractures in his right leg and two rods were affixed, out of which
one rod was removed and another was still existing on the date of
recording his statement.
8. The accident had taken place on 22.04.2009. Initially, the
respondent no. 1 / injured got his treatment from Sanjay Gandhi
Memorial Hospital from 22.04.2009 to 23.04.2009 and thereafter from
Maharaja Agrasen Hospital from 23.04.2009 to 26.04.2009.
9. Keeping in view the injuries received in the accident and the
treatment received by the injured / claimant during the period noted above,
I am of the considered opinion that amount of Rs.1,50,000/- granted
towards pain and suffering is not on a higher side.
10. As the issue of 12% interest awarded on the compensation amount
from the date of filing of the petition till realization of the amount is
concerned, the accident had taken place on 22.04.2009; the Claim Petition
was filed on 14.05.2009 and the award was passed on 19.07.2012. During
this period, the rate of interest @ 12% per annum was never been there of
the nationalized bank on FDR. Therefore, I am of the opinion that interest
granted by the Tribunal on the compensation amount is on the higher side,
hence I reduce it to 9% per annum. Accordingly, award dated 19.07.2012
is modified.
11. So far as the issue of counsel's fee and out of pocket expenses is
concerned, this issue has been dealt with by this court in the case of ICICI
Lombard Genl. Insurance Co. Ltd. v. Kanti Devi & Ors. in MAC.A.
645/2012 decided on 30.07.2012, wherein, it is held that Tribunal has no
jurisdiction to grant counsel's fee and out of pocket expenses, which is
contrary to the Motor Vehicles Act, 1988. Therefore, I am of the opinion
that Ld. Tribunal has wrongly granted a sum of Rs.18,000/- (Rs.15,000 +
Rs.3,000) towards these heads. Thus, award dated 19.07.2012 is set aside
to that extent.
12. I note, vide order dated 14.09.2012, appellant was directed to
deposit 50% of the award amount (less counsel's fee and out of pocket
expenses) with interest @ 9% per annum with UCO Bank, Delhi High
Court Branch. Therefore, appellant is directed to deposit the balance
compensation amount (less counsel's fee and out of pocket expenses) in
favour of the respondent no. 1 / claimant with interest @ 9% per annum
from the date filing of the petition till realization of the amount on taking
steps by him in terms of award dated 19.07.2012 passed by Ld. Tribunal.
13. Statutory amount be released in favour of the appellant.
14. In view of above, appeal is partially allowed.
CM. NO. 16164/2012
With the disposal of the instant appeal itself, instant application has
become infructuous and disposed of as such.
SURESH KAIT, J.
MARCH 10, 2014/jg
