Delhi High Court
Kewan Kishan & Anr vs Jaskaran Singh Chawla & Anr on 20 November, 2014
$~A-2,3,4,5,32,33,34,35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th November, 2014
+ MAC.APP. 337/2014
KEWAN KISHAN & ANR ..... Appellant
Through Mr.Nikhil Malhotra, Advocate
versus
JASKARAN SINGH CHAWLA & ANR ..... Respondent
Through Mr.L.K.Tyagi, Adv. for the Insurance
Company/R-2
+ MAC.APP. 338/2014
KEWAL KISHAN & ANR ..... Appellant
Through Mr.Nikhil Malhotra, Advocate
versus
INDERJEET SINGH & ANR ..... Respondent
Through Mr.L.K.Tyagi, Adv. for the Insurance
Company/R-2
+ MAC.APP. 339/2014
KEWAL KISHAN & ANR ..... Appellant
Through Mr.Nikhil Malhotra, Advocate
versus
SMT GURMEET KAUR CHAWLA & ANR ..... Respondent
Through Mr.L.K.Tyagi, Adv. for the Insurance
Company/R-2
+ MAC.APP. 340/2014
KEWAL KISHAN & ANR ..... Appellant
Through Mr.Nikhil Malhotra, Advocate
versus
RAMAN DEEP KAUR CHAWLA & ANR ..... Respondent
Through Mr.L.K.Tyagi, Adv. for the Insurance
Company/R-2
MAC.APP.337/2014 & 7 connected matters Page 1 of 21
+ MAC.APP. 1112/2013
GURMEET KAUR CHAWLA ..... Appellant
Through Ms.Rupika Singh, Adv. for Mr.Navneet
Goyal, Advocate
versus
BALVINDER SINGH & ORS ..... Respondent
Through Mr.Nikhil Malhotra, Advocate for
R-1 and R-2
Mr.L.K.Tyagi, Advocate for Insurance
company
+ MAC.APP. 1114/2013
INDERJEET SINGH ..... Appellant
Through Ms.Rupika Singh, Adv. for Mr.Navneet
Goyal, Advocate
versus
BALVINDER SINGH & ORS ..... Respondent
Through Mr.Nikhil Malhotra, Advocate for
R-1 and R-2
Mr.L.K.Tyagi, Advocate for Insurance
company
+ MAC.APP. 1115/2013
JASKARAN SINGH CHAWLA ..... Appellant
Through Ms.Rupika Singh, Adv. for Mr.Navneet
Goyal, Advocate
versus
BALVINDER SINGH & ORS ..... Respondent
Through Mr.Nikhil Malhotra, Advocate for
R-1 and R-2
Mr.L.K.Tyagi, Advocate for Insurance
company
MAC.APP.337/2014 & 7 connected matters Page 2 of 21
+ MAC.APP. 1135/2013
RAMAN DEEP KAUR CHAWLA ..... Appellant
Through Ms.Rupika Singh, Adv. for Mr.Navneet
Goyal, Advocate
versus
BALVINDER SINGH & ORS ..... Respondent
Through Mr.Nikhil Malhotra, Advocate for
R-1 and R-2
Mr.L.K.Tyagi, Advocate for Insurance
company
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeals arise out of a common award and the same accident.
The brief facts are that on 30.5.2007 the claimants were coming to Delhi via
Ludhiana after visiting the Golden Temple Amritsar in a Maruti Wagon R. Shri
Inderjeet Singh was driving the car. When they reached Subhanpur, a oil tanker
came from the opposite direction said to be driven in a rash and negligent
manner by its driver and hit the car of the claimants. All the claimants sustained
grievous injuries. Four separate claim petitions were filed. One by Inderjeet
Singh, second by his wife Mrs. Gurmeet Kaur Chawla, third by Master
Jaskaran Singh Chawla his minor son and fourth by Ms.Raman Deep Kaur
Chawla his daughter. All four petitions were disposed of by a common Award
dated 6.9.2013.
2. Common issues were framed as follows:-
"1. Whether Sh.Inderjeet Singh Chawla, Miss Raman Deep
Kaur, Mrs.Gurmeet Kaur Chawla and Master Jaskaran Singh
Chawla sustained injuries due to rash and negligent driving of
Oil Tanker No.PB-02M-9895 by R-1? OPP
2.Whether the above mentioned persons sustained injuries due
to rash and negligent driving of Wagon R No.DL-2C-AC-
5145 and if so, to what effect? OPR1R2.
3.Whether the petitioners are entitled to get any
compensation, if so, from whom and of what amount?
4. Relief."
3. On issue No.1 and 2 the Tribunal concluded that the accident took place
due to the rash and negligent driving of the driver of the offending oil tanker,
namely, Shri Balvinder Singh. The details of compensation awarded to the
respective complaints is mentioned later on.
MAC.APP.337/2014, 338/2014, 339/2014 & 340/2014
4. These four appeals are filed by the owner/Kewal Kishan and
driver/Balvinder Singh of the offending oil tanker. I will deal with these
appeals first. Learned counsel appearing for the owner and the driver of the
offending oil tanker/appellants have made two submissions to support his
contentions. He submits that the Award has erroneously held that the accident
took place due to the rash and negligent driving of the driver of the offending
oil tanker. He secondly submits that the Tribunal also wrongly concluded that
the said driver was not holding a valid driving license and wrongly awarded
recovery rights to the insurance company against the appellants.
5. On the issue of negligence of the driver, learned counsel for the appellant
submits that a perusal of the evidence of the driver of the offending oil tanker,
Shri Balvinder Singh R1W1 and the evidence of Inderjeet Singh the
claimant/PW-1 would show that there is no allegation that the driver of the
offending vehicle had come on the wrong side of the road and had hit the car of
the claimants. It is urged that it was PW-1 Inderjeet Singh who was driving the
car and has gone on the wrong side and had a head on collusion with the oil
tanker. Without prejudice, he further submits that at best it was a case of
contributory negligence and hence in any case the appellants cannot be held
liable for the full liability. He hence argues that in case this Court holds that it
is a case of contributory negligence the insurer of the car of the claimant was a
necessary party and his impleadment was mandatory.
6. On the issue of recovery rights leaned counsel for the appellant has
submitted that the Tribunal wrongly came to a conclusion that the license of the
driver of the tanker Shri Balvinder Singh was not valid on the date of the
accident and that the license verification report filed by the appellants, showing
that the license was valid upto 23.10.2007 is fake. He submits that this
conclusion is erroneous and the license was valid on the date of the accident.
He also points out that the appellants have filed an application which should
have been listed today for permission to lead additional evidence and that
alongwith this application they have filed a verification letter from the District
Transport Office, Gurdaspur showing that the driving license of the driver in
question/appellant No.2 was valid upto 23.10.2007. Hence, he submits that an
opportunity should be granted to lead additional evidence or in the alternative
the verification report be taken on record and the grant of recovery rights by the
Tribunal be modified.
7. He further submits that it is on record that appellant No.2 had a valid
driving license since 2001. He was an experienced driver of the tanker. He
relies on the judgment of the Supreme Court in the case of National Insurance
Co. Ltd. vs. Swaran Singh and Ors. (2004) 3 SCC 297 and United India
Insurance Co. Ltd v. Lehru & ors., AIR 2003 SC 1292 to contend that it was
not for the owner to verify the driving license from the authority and in these
facts in any case the owner had taken adequate care and precaution and no
recovery rights could have been granted to the insurance company.
8. Regarding the question of negligence of appellant No.2/the driver of the
offending tanker, I may first look at the evidence on record. The driver in his
affidavit by way of evidence has said that the car was being driven at a very
high speed in a rash and negligent manner and came on the wrong side and
struck against the right side of the truck and caused the accident. He further
states that in photographs it can be clearly seen that the car was totally on the
wrong side. In his cross-examination he has said as follows:-
"It is correct that I am facing trial in a criminal case
regarding the accident. I was arrested by the police and
released on bail by the Court. I have not filed any complaint
regarding my arrest and false implication to the said criminal
case before any higher authority. It is wrong to suggest that
accident was caused due to my sole negligence. I have
stated in my affidavit Ex.R1W1/A that the driver of the
other vehicle went asleep. Confronted with Ex.R1W1/A
where it is not so recorded. It is wrong to suggest that I am
deposing falsely and I filed a false affidavit."
9. Hence, the evidence of R1W1/Balvinder Singh is not reliable. He seems
to have forgotten what he has said in his affidavit by way of evidence. In his
cross-examination he stated that in his evidence he has said that the driver of
the other vehicle had gone to sleep. When confronted with his affidavit by way
of evidence he has denied the same.
10. Coming to the evidence of PW-1 the claimant/driver of the car, namely,
Inderjeet Singh, he has said that the oil tanker was being driven in a rash and
negligent manner and came at a very fast speed from the opposite direction and
hit the car with great force. The only cross-examination of PW-1 on negligence
part by counsel for the appellant is as follows:-
"It is incorrect to suggest that I was tired because of any
excessive driving by me and for that reason I was feeling
sleepy. It is wrong to suggest that there was no negligence
of truck driver in the accident."
11. Here also it is obvious that the stress of the appellant is that the driver of
the car has fallen asleep and that was the cause of the accident. There is no
evidence to conclude the said fact of driver Inderjeet Singh having fallen
asleep.
12. This court has in the case of National Insurance Company Limited vs.
Pushpa Rana, 2009 ACJ 287 held that where a chargesheet is filed against
the driver of the offending vehicle, the chargesheet readwith other documents
would be sufficient proof to show negligence. To the same extent are
observations of the Basant Kaur & ors. vs. Chatarpal Singh & ors., 2003 ACJ
369.
13. Reference may also be had to the judgment of the Supreme Court in the
case of NKV Bros (P) Ltd v. M. Karumai Ammal & ors., 1980 ACJ 435
where in para 3 the Supreme Court held as follows:
"3. Road accidents are one of the top killers in our country,
specially when truck and bus drivers operate nocturnally. This
proverbial recklessness often persuades the courts, as has been
observed by us earlier in other cases, to draw an initial
presumption in several cases based on the doctrine of res ipsa
loquitur. Accidents Tribunals must take special care to see that
innocent victims do not suffer and drivers and owners do not
escape liability merely because of some doubt here or some
obscurity there. Save in plain cases, culpability must be inferred
from the circumstances where it is fairly reasonable. The court
should not succumb to niceties, technicalities and mystic maybes.
We are emphasising this aspect because we are often distressed
by transport operators getting away with it thanks to judicial
laxity, despite the fact that they do not exercise sufficient
disciplinary control over the drivers in the matter of careful
driving. The heavy economic impact of culpable driving of public
transport must bring owner and driver to their responsibility to
their 'neighbour'. Indeed, the State must seriously consider no
fault liability by legislation. A second aspect which pains us is the
inadequacy of the compensation or undue parsimony practised by
tribunals. We must remember that judicial tribunals are State
organs and Article 41 of the Constitution lays the jurisprudential
foundation for state relief against accidental disablement of
citizens. There is no justification for niggardliness in
compensation. A third factor which is harrowing is the enormous
delay in disposal of accident cases resulting in compensation,
even if awarded, being postponed by several years. The states
must appoint sufficient number of tribunals and the High Courts
should insist upon quick disposals so that the trauma and tragedy
already sustained may not be magnified by the injustice of
delayed justice. Many states are unjustly indifferent in this
regard."
14. In the light of the fact that a chargesheet has been filed by the police
against the appellant/Balvinder Singh who was driving the tanker, I am not
willing to accept the averment made in his affidavit by way of evidence that the
car had come on the wrong side of the road. No such suggestion was put to
PW-1 in his cross-examination. There is no attempt to file the relevant copies
of the criminal record, namely, the site plan etc. by the appellant which would
show the correct position. The appellant No.2 being an accused would be in
possession of the case papers of the criminal case. Filing the site plan etc.,
would not have been difficult for him.
15. I see no reasons to differ with the findings recorded by the Tribunal on
the negligence of the oil tanker merely on the basis of self protecting
submissions of appellant No.2 in his affidavit by way of evidence which are
wholly unsupported by any other evidence. The said contention of the appellant
is rejected.
16. I will now deal with the application of the appellant. I am not inclined in
any way to allow the new application now filed by the appellants for leading
additional evidence under Order 41 Rule 27. This appeal first came up for
hearing on 16.4.2014. On 20.11.2014 when the matter was fixed for arguments,
an adjournment was sought by the appellant saying that the main counsel for
the appellant was not available and the matter was adjourned for 24.11.2014
with the direction that no adjournment shall be given on the next day. Yet now
this application has been filed belatedly and is not even on the court record.
The application was called for from the Registry which has now sent the
application. With the said application a new license verification letter has been
produced which is dated 23.9.2014 stating that the license of appellant No.2 is
valid upto 23.10.2007.
17. R3W2/Sh.Gurnam Kumar, Clerk, DTO Office, Gurdaspur, Punjab was
cross-examined on 13.3.2013 and 17.4.2013. He has said that the verification
report of the appellant was not issued by their office and is forged. He said that
the license of the driver, appellant No.2 was not valid on the date of the
accident. Award was passed on 6.9.2013. Now after 18 months after evidence
of R3W2 the appellants have woken up to file this application and produce a
second license verification letter.
18. This see-saw cannot be allowed to be continue in this manner. Order 41
Rule 27 provides that parties can produce additional evidence before the
appellate Court if the Court from whose decree appeal is preferred has refused
to admit the evidence or party establishes that notwithstanding exercise of due
diligence such evidence was not within his knowledge and could not be
produced or the appellate court requires any documentary proof to enable it to
pronounce judgment or for any other substantial cause.
19. In my opinion, there are no grounds made out to permit the appellants to
lead additional evidence. The application is without merits and is dismissed.
20. Coming to the issue of the driving license of appellant No.2. Before the
tribunal the appellants had placed on record a driving license Verification
Report showing that the license was valid upto 24.10.2004. R3W2 Shri
Gurnam Kumar, Clerk from the DTO Office Gurdaspur, Punjab has confirmed
that the license in question dated 25.10.2001 was issued in the name of the
driver appellant No.2 Shri Balvinder Singh. He further confirmed that as per
record available the driving license has not been renewed from their office and
that on the date of the accident the license of Sh. Balvinder Singh was not
valid. In his cross-examination counsel for the appellant has put the license
verification report submitted by the appellant to the said witness. He has said
that the signatures on the said report are his forged signatures at point X.
21. In the light of the above evidence the Tribunal rightly held that the report
of the license verification filed by the appellant is fake and concluded that the
appellant No.2 did not have a valid driving license on the date of the accident.
22. I will now consider the submissions of the appellant about their liability
based on evidence on record. The Supreme Court in the case of United India
Insurance Co. Ltd v. Lehru & ors. AIR 2003 SC 1292, MANU/SC/0219/2003
in paragraph 20 held as follows:-
"20. When an owner is hiring a driver he will therefore have
to check whether the driver has a driving licence. If the
driver produces a driving licence which on the face of it
looks genuine, the owner is not expected to find out
whether the licence has in fact been issued by a competent
authority or not. The owner should then take the test of the
driver. If he finds that the driver is competent to drive the
vehicle, he will hire the driver. We find it rather strange
that Insurance Companies expect owners to make enquiries
with RTO's, which are spread all over the country, whether
the driving licence shown to them is valid or not. Thus
where the owner has satisfied himself that the driver has a
licence and is driving competently there would be no
breach of Section 149(2)(a)(ii). The Insurance Company
would not then be absolved of liability...."
23. In the present case, the owner has not entered the witness box. It is not
clear as to since when the driver has been engaged by him. It was for the
owner-appellant No.1 to have shown that he was vigilant and had taken due
care and precaution while engaging the driver. As no such evidence has been
placed on record I see no reasons to differ with the view of the Tribunal.
24. Present appeals are accordingly dismissed.
MAC.APP.1114/2013
25. The present matter pertains to enhancement of the compensation payable
to Sh. Inderjeet Singh Chawla. The claimant was also the driver of the car.
Based on the evidence on record, the tribunal awarded a total compensation of
Rs.2,50,000 as follows:
Compensation on account of cost on treatment Rs. 65,000/-
On account of loss of income Rs. 1,00,000/-
On account of pain and suffering Rs. 20,000/-
On account of conveyance and special diet Rs. 5,000/-
On account of Domestic help Rs. 10,000/-
On account of Disability Rs. 50,000/-
Total Rs. 2,50,000/-
26. The tribunal noted that the claimant had been admitted in hospital from
30.05.2007 to 30.06.2007 and has undergone an operation for hip replacement.
27. Learned counsel appearing for the claimant/appellant submits that no
compensation has been awarded for future treatment as provided in Ex.
PW1/16. It is next stated that as per the disability certificate, the appellant has
55% permanent disability of right lower limb and the tribunal awarded a
meagre compensation for disability of only Rs.50,000/-. It is next submitted
that for cost of treatment only Rs.65,000/- has been awarded whereas the
appellant has spent Rs.6,44,753/-. On loss of income, it is urged that only Rs.1
lac was awarded whereas the appellant was earning Rs.26,021/- per month and
had been on leave for 234 days. Hence, it is urged that the compensation for
loss of income for this period should have been much higher. It is lastly urged
that compensation awarded under the Non-pecuniary heads were on the lower
side.
28. The evidence on record shows that there is a certificate issued by Sant.
Parmanand Hospital which is Ex. PW1/16 which states that Mr. Inderjeet Singh
Chawla/ claimant required a fresh implant as the hip replacement implant has a
fixed duration. The estimated cost is said to be Rs.2,50,000/- which may
increase in the future. It is also stated that he would require surgery for foot
drop, the estimated cost for which is Rs.60,000/-. However, there is no attempt
to explain or elaborate this document in evidence. No doctor has been
examined. Even PW1 himself, namely the appellant merely exhibits the
document without any averment stating that he would require replacement of
the implant at any stage. Hence, I agree with the views of the tribunal. There
are no grounds made out or evidence on record for award of compensation for
future medical treatment as claimed.
29. Coming to the issue of disability, it is on record that as per the disability
certificate, the appellant has 55% permanent disability of the right lower limb.
The evidence of PW1 however shows that in his affidavit by way of evidence,
he has nowhere elaborated the affect of the said disability on his earning
capacity or as to how it has resulted in loss of income to him. The appellant
was working as an Officer with the Oriental Bank of Commerce, a PSU of the
Government. He continues to work on the same post and drawing the same
salary. There is no evidence to show as to how the disability had affected his
future career. PW7 Mr. Kishan Singh from Oriental Bank of Commerce has
confirmed that as on November 2010, the appellant was drawing a salary of
Rs.35,707/- per month whereas in May 2007 he was drawing a salary of
Rs.19,301.50. In the light of the evidence produced by the appellant, there is no
reason to differ with the findings of the tribunal awarding compensation of
Rs.50,000/- on account of disability.
30. On expenses for medical treatment, the tribunal has noted that the
appellant has spent Rs.6,44,753/- on treatment out of which Rs.5,83,696/- has
been reimbursed leaving a balance of Rs.61,057/-. This is also confirmed by
PW7 Mr. Kishan Singh from the bank. Hence no grounds are made to interfere
in the said reimbursement of Rs.61,057/- for the cost of treatment.
31. On the issue of leave PW7 has confirmed that the appellant remained on
leave from 28.05.2007 to 30.11.2007 and from 03.12.2007 to 19.12.2007 and
later on 10.03.2008 to 10.04.2008 being a total of 234 days. However, there is
no evidence to show the loss that the appellant has suffered on account of
having taken leave during the said period. In the absence of any cogent
evidence, award of Rs.1 lac on account of loss of income by the tribunal is in
order.
32. Coming to the non-pecuniary damages, PW1 namely the appellant has
said that he remained admitted in hospital at Jallandhar from 30.05.2007 to
02.06.2007, thereafter on 02.06.2007, he was removed to Sir Ganga Ram
Hospital at Delhi till 30.06.2007. He underwent an operation of ORIF right
Acetabulum with POP application right forearm on 08.06.2007 in Sir Ganga
Ram Hospital. He has also undergone a total hip replacement surgery in Sant
Parmanand Hospital on 10.03.2008. He has 55% permanent disability on right
lower limb.
33. Given the nature of injuries suffered by the appellant and the prolonged
period of treatment I enhance the compensation for pain and suffering from
Rs.20,000/- to Rs.75,000/-. I award attendant charges of Rs.50,000/- instead of
Rs.10,000/- granted by the tribunal. Conveyance and special diet compensation
is enhanced from Rs.5,000/- to Rs.50,000/-.
34. The total compensation now works out as follows:
Compensation on account of cost on treatment Rs. 65,000/-
On account of loss of income Rs. 1,00,000/-
On account of pain and suffering Rs. 75,000/-
On account of conveyance and special diet Rs. 50,000/-
On account of Domestic help (attendant charges) Rs. 50,000/-
On account of Disability Rs. 50,000/-
Total Rs. 3,90,000/-
35. This appeal is disposed of as above.
MAC.APP.1112/2013
36. This matter pertains to the injuries sustained by Ms. Gurmeet Kaur
Chawla. The tribunal awarded a total compensation of Rs.85,000/- as follows:
Compensation on account of cost on treatment Rs. 20,000/-
On account of loss of income Rs. 50,000/-
On account of pain and suffering Rs. 10,000/-
On account of conveyance and special diet Rs. 5,000/-
Total Rs. 85,000/-
37. Learned counsel for the appellant submits that the compensation is liable
to be enhanced. Firstly, he submits that only Rs.20,000/- has been awarded for
reimbursement of medical expenses whereas the appellant has spent
Rs.1,66,434/-. He next submits that the appellant was on leave for 142 days and
a compensation of only Rs.50,000/- has been given for loss of income. Lastly,
he submits that the non-pecuniary damages are awarded on the lower side.
38. The said claimant in her affidavit by way of evidence as PW2 has stated
that she has sustained grievous injuries of fracture of ribs besides other cuts and
abrasions all over the body and has become permanently disabled. She was
working as Senior Assistant with Oriental Insurance Co. Ltd. and she remained
on leave for 142 days out of which 57 days' salary was not paid to her and 36
days' salary was paid on half day basis. In the light of this evidence, it is not
possible to award any more compensation for the loss of income suffered by
the claimant.
39. On medical treatment, the appellant in her affidavit submits that she has
incurred an expenditure of Rs.2 lacs out of which Rs.1,05,345/- has been
reimbursed by Oriental Insurance Company Limited. She also had a medi-
claim policy. There is no clarity as to how much amount the said appellant
received from the medi-claim policy. The evidence by way of affidavit is silent
on the same. The tribunal also noted that no original medical bills were filed.
Hence, the tribunal awarded Rs.20,000/- for medical treatment. In the light of
the evidence on record there are no reasons to differ with the compensation
awarded by the tribunal on this count.
40. I now come to the last submission regarding the non-pecuniary damages.
The appellant remained in hospital from 30.05.2007 to 22.06.2007. She
sustained fracture of ribs. She is stated to have been on leave for 142 days.
Hence, in the light of the above evidence, I enhance compensation for pain and
sufferings from Rs.10,000/- to Rs.50,000/-. I also enhance compensation for
conveyance and special diet from Rs.5,000/- to Rs.50,000/-. The total
compensation will now read as follows:
Compensation on account of cost on treatment Rs. 20,000/-
On account of loss of income Rs. 50,000/-
On account of pain and suffering Rs. 50,000/-
On account of conveyance and special diet Rs. 50,000/-
Total Rs. 1,70,000/-
41. This appeal stands disposed of accordingly.
MAC APP. 1135/2013
42. This matter pertains to the injuries sustained by Ms. Ramandeep Kaur
Chawla d/o Mr. Inderjeet Singh Chawla. The Tribunal awarded a total
compensation of Rs. 45,000/- as follows:
Compensation on account of cost on treatment Rs. 10,000/-
On account of loss of study Rs. 20,000/-
On account of pain and suffering Rs. 10,000/-
On account of conveyance and special diet Rs. 5,000/-
Total Rs. 45,000/-
43. Learned counsel appearing for the appellant submits that the said
claimant has suffered 31% permanent disability but the tribunal has granted no
compensation for the same. Further, it is urged that the tribunal has awarded
Rs.10,000/- for cost of treatment whereas the cost of treatment should have
been at least Rs.50,000/-. Lastly, it is urged that the non-pecuniary damages are
on the lower side.
44. As per the disability certificate placed on record as Ex.PW3/7 by the
appellant, she has suffered 31% permanent disability in respect of the right
lower limb. The tribunal has noted that the appellant was studying LL.B. and
she has suffered the loss of studies due to the said accident. An amount of
Rs.20,000/- was awarded for loss of studies.
45. A perusal of evidence by way of affidavit of PW3, Ms. Raman Deep
Kaur shows that she has not elaborated anywhere the loss of income that she
would have suffered on account of disability.
46. She was a student of LL.B. In her affidavit by way of evidence she only
elaborates that she was studying LL.B. from Ideal Institute of Management and
Technology (Indraprastha University, Delhi). On account of her injuries, her
studies have been adversely affected. In her additional affidavit by way of
evidence, it was stated that the disability has adversely affected her career as
she was studying LL.B. and she will not be able to participate and involve in
active practice after completing the LL.B. Course. The tribunal had awarded
Rs.20,000/- on account of loss of studies.
47. Keeping in view the judgments of the Supreme Court in V.Mekala vs
M.Malathi & Anr. 2014ACJ1441, Ashvinbhai Jayantilal Modi vs Ramkaran
Ramchandra, 2014(11SCALE)427, V.Selvaraj & Anr. vs Bajaj Allianz
General Insurance Co. Ltd. & Anr., SLP(C) No.(s) 39510/2013 in my
opinion, the income of the appellant should be assessed at Rs.10,000/- per
month. Keeping in view the disability and the fact that she would have worked
in the legal profession, I assess the functional disability of the appellant at 20%.
As the age of the injured was around 18years on the date of accident, the
appropriate multiplier as per the judgement of the Supreme Court in Sarla
Verma vs DTC (2009) 6 SCC 121 will be 18. Hence, compensation on account
of loss of income due to disability would now be Rs. 4,32,000/-
(10x20/100x12x18).
48. Hence, the total amount of Rs. 4,32,000/- would be payable on account
of loss of income due to disability.
49. On medical treatment, the tribunal has noted that on her treatment, she
has spent Rs.2 lac out of which Rs.1,13,106/- was reimbursed to her. In her
affidavit by way of evidence, she reiterates the said contention that she incurred
expenses of Rs.2 lac out of which Rs.1,13,106/- have been reimbursed by the
employer of her mother as she was dependent upon her mother. She however
stated that the original medical bills/papers have been retained by the employer
of her mother at the time of reimbursement and hence, she has filed necessary
photocopies of the same.
50. The tribunal has awarded Rs.10,000/- on the cost of treatment. I enhance
this amount to Rs.40,000/-
51. On non-pecuniary damages, I may note that the tribunal has awarded
Rs.10,000/- on account of pain and sufferings and Rs.5,000/- on account of
conveyance and special diet.
52. As per the affidavit by way of evidence of PW3, has said that she has
remained admitted in hospital from 30.5.2007 to 12.6.2007. She has suffered a
fracture of medial malleolus (right) and injuries in lower back region, right leg
and left clavicle and she has become permanently disabled. Accordinlgy, I
enhance the total compensation on account of pain and sufferings from
Rs.10,000/- to Rs.25,000/-. Similarly, I enhance compensation on account of
conveyance and special diet from Rs.5000/- to Rs.25,000/-. The total
compensation would now be as follows:
Compensation on account of cost on treatment Rs. 40,000/-
On account of loss of study Rs. 20,000/-
On account of pain and suffering Rs. 25,000/-
On account of conveyance and special diet Rs. 25,000/-
On account of loss of income due to Disbality Rs. 4,32,000/-
Total Rs. 5,42,000/-
MAC. APP. 1115/2013
53. This matter pertains to the injuries sustained by Master Jaskaran Singh
Chawla, s/o Sh. Inderjeet Singh Chawla in the said accident. The tribunal
awarded a total compensation of Rs. 45,000/- as follows:
Compensation on account of cost on treatment Rs. 10,000/-
On account of loss of study Rs. 20,000/-
On account of pain and suffering Rs. 10,000/-
On account of conveyance and special diet Rs. 5,000/-
Total Rs. 45,000/-
54. Learned counsel appearing for the appellant submits that compensation
awarded on account of cost on treatment is on the lower side. The medical bills
for Rs. 49,258/- have been placed on record. He also submits that the
compensation for non-pecuniary heads is awarded on the lower side.
55. As per the evidence by way of affidavit of PW2, Ms. Gurmeet Kaur,
Jaskaran Singh Chawla remained in hospital from 30.05.2007 to 9.06.2007. He
sustained fracture in left ankle and other injuries all over his body. It is stated
that he could not attend classes for four months. Out of the bills placed on
record, it is stated that the employer reimbursed Rs.49,258/- whereas according
to PW2, she incurred an expenditure of Rs.1,50,000/- on the treatment of her
son. However, no proper break-up is given. Few original bills of nominal
amount being Ex.PW-2/48 to 2/52 have been filed. Given the nature of injuries
sustained by Jaskaran Singh Chawla, I see no reason to enhance the
compensation for cost of treatment.
56. As per the evidence by way of affidavit of PW2, Ms. Gurmeet Kaur,
Jaskaran Singh Chawla has sustained fracture in left ankle and other injuries all
over his body. Accordingly I enhance the compensation on account of
conveyance & special diet from Rs. 5,000/- to Rs. 25,000/-. Also, I enhance
the compensation on account of pain & sufferings from Rs. 10,000/- to Rs.
25,000/-. The total compensation would now serve as follows:
Compensation on account of cost on treatment Rs. 10,000/-
On account of loss of study Rs. 20,000/-
On account of pain and suffering Rs. 25,000/-
On account of conveyance and special diet Rs. 25,000/-
Total Rs. 80,000/-
57. The present appeals stands disposed of.
58. The National Insurance Co. Ltd.-respondent shall deposit the enhanced
compensation as directed above with the Registrar General of this High Court
along with interest @ 7.5% per annum from the date of filing of the claim
petition till deposit in the Court within six weeks from today. The Registrar
General shall release the amount to the respective claimants.
JAYANT NATH, J
NOVEMBER 24, 2014/n/raj
