Delhi High Court
United India Insurance Co Ltd vs Umar Mohd & Ors ( National ... on 17 November, 2014
$-A-1& 25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 894/2014
Date of decision:17.11.2014
UNITED INDIA INSURANCE CO LTD ..... Appellant
Through Mr.Manish Kaushik, Advocate for
Mr.K.L.Nandwani, Advocate
versus
UMAR MOHD & ORS ( NATIONAL
INSURANCE CO LTD. ..... Respondent
Through Mr.O.P.Mannie, Advocate for R-1.
Ms.Avnish Ahlawat and Ms.Latika
Chaudhary, Advocate for R-4/DTC
Mr.Pradeep Gaur, Advocate for R-5.
+ MAC.APP. 1215/2012
NATIONAL INSURANCE CO LTD ..... Appellant
Through Mr.Pradeep Gaur, Advocate
versus
UMAR MOHD AND ORS ..... Respondents
Through Mr.O.P.Mannie, Advocate for R-1.
Ms.Avnish Ahlawat and Ms.Latika
Chaudhary, Advocate for R-4/DTC
Mr.Manish Kaushik, Advocate for
Mr.K.L.Nandwani, Advocate for R-5.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. MAC.APP. No.1215/2012 is filed by National Insurance Company
Ltd. seeking to impugn the award dated 27.08.2012. MAC. APP. 894/2014
is filed by the United India Insurance Company Ltd. seeking to impugn the
same award.
2. These two separate appeals are filed as the award has held the two
vehicles responsible for the accident and accordingly, the appellants in the
two appeals have been held liable to pay the award amount.
CM No.16561/2014 in MAC.APP. 894/2014
3. I will first deal with the application i.e. CM No.16561/2014 filed by
United India Insurance Company Ltd. for condonation of delay of 765 days
in filing of the appeal.
4. It is urged that as per the award passed by the Tribunal dated
27.08.2012 the compensation had to be paid by the National Insurance
Company Ltd. and DTC whose offending vehicle is insured with the
appellant. It is urged that it was only subsequently when respondent No.1
filed an application under Section 152 CPC on 23.08.2014 that notice was
issued to the appellant. It is only on receipt of the notice that the appellant
realised that respondent No.1 is trying to take action against the appellant.
Accordingly, it is urged that the appellant was advised to file the present
appeal. It was in this background it is urged that the delay in filing of the
appeal be condoned.
5. For the reasons stated in the application, in my opinion sufficient
grounds are made out to condone the delay. The delay of 765 days in filing
of the application is condoned.
6. The application is allowed.
MAC.APP. 894/2014 and MAC.APP. 1215/2012
7. The brief facts which led to the filing of the claim petition are that
respondent No. 1 on 21.07.2009 was going on his two-wheeler scooter. The
accident took place at Sector 13 Rohini. The appellant was going parallel to
a car said to be driven at a very fast speed in a zig zag manner rashly and
negligently. When the two vehicles, namely, two-wheeler of respondent
No.1 and the car were parallel to each other, suddenly the front side gate of
the car was opened and hit the scooter of respondent No.1 with great force.
Respondent No.1 fell down on the road. In the meantime, a DTC bus came
from behind and ran over both the legs of respondent No.1and he sustained
serious and grievous injuries all over his body.
8. The Tribunal framed the following issues:-
"1. Whether on 21.07.2009, at about 11.00 am near Anubhav
Apartment, Bus Stand, AB Road, Sector-13, Rohini the
petitioner suffered injuries in the accident involving vehicle
No.DL-4C/U-0170 and DTC bus bearing registration No.DL-
IP/B-5527? OPP
2. Whether this accident was caused due to rash and negligent
driving of R-1 or R-3? (OPP)
3. Whether the petitioner is entitled for any compensation, if
any, from whom and to what extent? OPP
4. Relief."
9. On issue no. 1 the Tribunal held that the accident took place due to
the negligent driving of the driver of the car and the driver of the DTC bus
and answered this issue accordingly.
10. On compensation, namely, issue No.3 the Tribunal awarded the
following compensation:-
a) Medical Expenses Rs.3,35,652/-
b) Future medical expenses Rs.3,39,800/-
c) Special diet Rs.30,000/-
d) Conveyance Charges Rs.30,000/-
e) Attendant Charges Rs.50,000/-
f) Loss of income Rs.2,26,810/-
g) Loss of future income Rs.40,96,189/-
B) Non-pecuniary damages (General Damages)
a) Pain, sufferings and inconvenience Rs.1,50,000/-
b) Loss of amenities and shortening of Rs.2,00,000/-
life
Total Rs.54,58,451/-
11. The first bone of contention between the two appellant companies is:
As to which of the Insurance Companies is liable to pay the award and in
what proportion?
12. A perusal of the Award would show that though the Tribunal does not
specify the proportion in which the appellants are to pay the amount,
directions were given that respondent No2, namely, National Insurance
Company Ltd. and respondent No.4, DTC would pay the award amount. The
parties agree that instead of respondent No.4 it should actually be
respondent No.5, namely, United India Insurance Company Ltd. which is
the relevant insurance company.
13. A perusal of the Award further shows that the Tribunal has noted that
the two drivers of the two offending vehicles, namely, respondents No.2 and
3 have been implicated in a criminal case under Section 336 IPC and
chargesheet has been filed.
14. The Tribunal also noted the evidence of PW-5, namely, respondent
No.1 who is an eye witness of the accident. PW-5 in his affidavit by way of
evidence has clearly pointed out that while he was travelling parallel to the
car, suddenly, the car while in motion has opened the front door which hit
his two wheeler with great force. As a result of the opening of the door
respondent No.1 fell down. Behind the two vehicles, namely, the car and the
two-wheeler a DTC bus was coming which as per PW-5 was also being
driven in a rash and negligent manner and ran over the legs of respondent
No.1.
15. Opening of the door of the car while in motion without noticing a
vehicle is running parallel to the car is a clear indication of negligence of the
car driver. Further the driver of the DTC bus ought to have been careful
while driving a heavy vehicle and should have managed not to cause injuries
to respondent No.1.
16. In the light of the above evidence, there are no reasons to differ with
the findings recorded by the Tribunal.
17. Learned counsel appearing for the appellant in MAC. APP.1215/2012
sought to challenge the compensation awarded. He submits that the Tribunal
has wrongly assessed the functional disability of respondent No.1 at 86%.
He further seeks to impugn the enhancement of assessed income by 50% for
future prospects as according to the learned counsel for the appellant
respondent No.1 on the date of the accident was 43 years old. He has also
impugned the grant of interest @ 12% p.a. for the pendency of the
proceedings before the Tribunal.
18. As far as the functional disability is concerned, the Tribunal has noted
that respondent No. 1 was working as a carpenter dealing and manufacturing
in wood items/materials. He was said to be earning Rs.18,900/- per month.
ITR filed shows that he was drawing a salary of Rs.2,26,810/- per year. The
Tribunal also noted that PW-8 Dr. G.C.Verma, Specialist Orthopaedics,
Baba Saheb Ambedkar Hospital, Delhi has proved that respondent No.1
suffered permanent disability of 86% in relation to his both lower limbs.
19. Keeping into account the judgment of the Supreme Court in the case
of Raj Kumar vs. Ajay Kumar, (2011) 1 SCC 343 and the disability of
86% of both lower limbs and also keeping into account the profession of
respondent No.1, there is no reason to differ with the findings recorded by
the Tribunal assessing the functional disability at 86%.
20. The Tribunal has while computing loss of income assessed the income
of respondent No.1 at 2,26,810/- per year based on the ITR. The Tribunal
has increased this income by 50% on account of future prospects.
21. As the age of respondent No.1 was 43 years on the date of the
accident, keeping into account the ratio of the judgment of the Supreme
Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors., (2013) 9 SCC
54, the increase in the income would by 30% and not 50%. Accordingly,
loss of future income would now come to Rs.35,50,030(Rs.2,26,810/- +
30% x 14 x 86%).
22. As far as the interest part is concerned, the Tribunal has directed that
the award amount shall be paid @ 12% p.a. from the date of filing till the
amount is paid. The said interest is discretionary relief at the discretion of
the Tribunal and there are no reasons to interfere with the same.
23. The award amount is now re-calculated and reads as follows:-
a) Medical Expenses Rs.3,35,652/-
b) Future medical expenses Rs.3,39,800/-
c) Special diet Rs.30,000/-
d) Conveyance Charges Rs.30,000/-
e) Attendant Charges Rs.50,000/-
f) Loss of income Rs.2,26,810/-
g) Loss of future income Rs.35,50,030/-
B) Non-pecuniary damages (General Damages)
a) Pain, sufferings and inconvenience Rs.1,50,000/-
b) Loss of amenities and shortening of Rs.2,00,000/-
life
Total Rs.49,12,292/-
24. The appellants in the two appeals shall deposit their balance of
respective share of the award amount with interest as directed by the
Tribunal @ 12% from the date of filing till deposit in this court before the
Registrar General of this Court. On receipt of the said amount, the entire
award amount as it would then have deposited would be released to
respondent No.1 as per the directions in the Award. However, it is clarified
that only 75% of the award amount with up to date interest shall be kept in
fixed deposit as per the directions in the award and the balance amount 25%
shall be released to respondent No. 1. It may further be noted that a sum of
Rs.3,39,800/- was directed to be paid as future medical expenses which was
actually for an artificial limb. The said sum of Rs.3,39,800/- shall be kept in
a separate fixed deposit. This amount shall be released to respondent No.1
on receipt of an estimate from an appropriate reputed company for the
artificial limb. The cheque would be prepared by UCO Bank, Delhi High
Court in favour of the Company supplying the limb.
25. MAC. APP. 1215/2012 stands disposed of.
26. There are no additional submissions made in MAC App.
No.694/2014. In view of the above order the same is also dismissed.
27. All pending applications stands disposed of.
28. The Statutory amount, if any, be refunded to the appellants.
JAYANT NATH, J
NOVEMBER 17, 2014/rb
