Delhi High Court
Surinder Mohan Sharma & Ors vs National Insurance Co Ltd on 27 November, 2014
Author: Jayant Nath
$~1 & 12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:27.11.2014
+ MAC.APP. 661/2014
SURINDER MOHAN SHARMA & ORS
..... Appellants
Through: Mr. O. P. Mannie, Advocate
versus
NATIONAL INSURANCE CO LTD
..... Respondent
Through: Mr. M. R. Sinha, Advocate
+ MAC.APP. 848/2011 & CM No.17637/2011 (stay)
NATIONAL INSURANCE CO LTD
..... Appellant
Through: Mr. M. R. Sinha, Advocate
versus
SURINDER MOHAN SHARMA & ORS
..... Respondents
Through: Mr. O. P. Mannie, Advocate for R-1
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
ORDER
% 27.11.2014
JAYANT NATH, J. (ORAL)
1. These are two appeals filed by the appellant against the award
dated 04.06.2011. MAC. APP. No.848/2011 is filed by the Insurance
Company seeking recovery rights against the owner and driver of the
offending vehicle. MAC APP No.661/2014 has been filed by the
claimant seeking enhancement of the compensation amount.
2. The brief facts are that on 31.03.2007 the claimant Surinder
Mohan Sharma was travelling in a bus. When the bus reached at
Uttam Nagar Chowk and the claimant was in the process of alighting
from the said vehicle, the driver started the bus without caring to note
the claimant was in the process of alighting from the bus. The
claimant fell down and suffered injuries.
3. Based on the evidence on record, the Tribunal held that the
accident took place due to rash and negligent driving of the offending
bus driven by driver, namely, Mr. Satish Kumar.
4. On compensation the Tribunal awarded the total compensation
of Rs.1,97,477/-, the details of which are as follows:-
Treatment expenses Rs.1,26,657/-
Pain and suffering Rs. 30,000/-
Special diet and conveyance Rs. 10,000/-
Loss of enjoyment of life Rs.
10,000/-
Loss of income Rs. 20,820/-
Total Rs.1,97,477/-
5. I will now deal with the appeal of the Insurance Company
MAC Appl. No.848/2011.
6. Learned counsel for the appellant/Insurance Company submits
that they had sent the notice under Order 12 Rule 8 CPC to the
driver and owner of the offending vehicle to produce the driving
license. It is further stated that despatch of those notices was duly
proved by the witness R3W1 and yet the Tribunal has noted that
there is no proof on record regarding receipt of said notices by the
owner and driver of the offending vehicle. Accordingly, the Tribunal
fastened the liability on the appellant.
7. A perusal of the award shows that the Tribunal noted that the
appellant/Insurance Company could only file the postal receipts and
no acknowledgment card in proof of receipt of the said notice or any
certificate from postal department regarding the service of the said
notice have been filed on the judicial record. Therefore, the Tribunal
held that it cannot be presumed that the driver and owner were
served with notice under Order 12 Rule 8 CPC.
8. A perusal of the evidence by way of affidavit of Mr. Ram Lal,
Senior Assistant of the National Insurance Company Ltd., R-3W1
shows that carbon copy of the notices were exhibited as Ex. R-3W1/2
and R-3W1/3. The postal receipts are exhibited as Ex. R-3W1/4 and
R3W1/5. Specific averment is made in the said affidavit that
notices are duly served on the owner as well as the driver of the
offending vehicle but none have complied with the requirements of
the said notice. In the light of the above the Tribunal held that there is
sufficient evidence on record to prove that notices were duly served
on the driver and owner of the offending vehicle.
9. A perusal of the award also shows that the owner and the
driver did not appear before the Tribunal and they were proceeded ex
parte. Even before this Court none has appeared for the driver and
owner of the offending vehicle.
10. In the light of the above and evidence on record I hold that
driver did not have a valid driving license at the time of accident.
11. Learned counsel for the Insurance Company submits that as the
appellant has already paid the compensation to the claimant.
Accordingly, I grant recovery rights for the entire amount as per the
award and order of this Court to the appellant against the owner,
namely Mr. Preet Shokeen and driver, namely Mr. Satish Kumar of
the offending vehicle.
12. The present appeal and the application stand disposed off.
Interim orders stand vacated.
MAC.APP.No.661/2014
13. Coming now to the appeal of the claimant MAC Appl.
No.661/2014.
14. Learned counsel appearing for the claimant submits that the
compensation awarded is on the lower side. He submits that it is on
record that the claimant suffered crush injury on his right foot with
complete avulsion of heel pad and one finger of right hand was
completely crushed. In the light of the injuries suffered he submits
compensation awarded for pain and suffering and loss of enjoyment
of life is Rs.30,000/- and Rs.10,000/- respectively which is on the
lower side. He further submits that the Tribunal has granted six
months loss of income to the claimant which comes to Rs.20,820/-.
He submits that the Tribunal has assessed loss of income on account
of the fact that the claimant has not worked for a period of six
months. He submits that apart from awarding loss of income the
Tribunal ought to have awarded attendant charges for the said period
also.
15. There is merit in the contention of the claimant. There is
evidence on record that the claimant suffered crush injury on his
right foot with complete avulsion of heel pad and one finger of right
hand was completely crushed. The Tribunal also held that the
claimant could not have carried out his livelihood for six months due
to injuries sustained in the accident.
15. In the light of the above facts, I enhance compensation for pain
and sufferings from Rs.30,000/- to Rs.75,000/-.Similarly for the loss
of enjoyment of life I enhance the compensation from Rs.10,000/- to
Rs.75,000/-. I also award a sum of Rs.30,000/- for attendant charges.
The total compensation would now come to as follows:-
Treatment expenses Rs.1,26,657/-
Pain & Suffering Rs.75,000/-
Special diet & conveyance Rs.10,000/-
Loss of enjoyment of life Rs.75,000/-
Loss of income Rs.20,820/-
Attendant charges Rs.30,000/-
Total Rs.3,37,477/-
16. Insurance Company shall deposit the additional compensation
amount alongwith interest @7.5% from the date of filing the petition
till deposit in Court with the Registrar General of this Court through
UCO Bank, Delhi High Court Branch within six weeks. On receipt of
the said amount the Registrar General shall release the amount to the
claimant as directed by the Tribunal. The appeal stands disposed of.
17. Statutory amount, if any, deposited by the appellant at the time
of filing the appeal be refunded to the appellant.
JAYANT NATH, J
NOVEMBER 27, 2014
An
