Delhi High Court
New India Insurance Co.Ltd vs Deepak Sinclairs & Ors. on 17 October, 2014
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17.10.2014
+ MAC.APP. 866/2011
NEW INDIA INSURANCE CO.LTD. ..... Appellant
Through : Mr.K.L.Nandwani, Adv.
versus
DEEPAK SINCLAIRS & ORS. ..... Respondents
Through : Mr.A.C.David, Adv.
+ MAC.APP. 939/2011
DEEPAK SINCLAIR ..... Appellant
Through : Mr.A.C.David, Adv.
versus
ROHTAS & ORS. ..... Respondents
Through : Mr.K.L.Nandwani, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. Both above appeals are filed seeking to impugn the Award dated
19.7.2011. MAC Appeal No.939/2011 is filed by the claimant for
enhancement of the Award amount. Mac Appeal No.866/2011 is filed by the
appellant/insurance company seeking to impugn the liability imposed upon
it.
2. The brief facts which led to filing of the claim petition are that on
27.8.2006 the claimant alongwith five other persons was coming from
Jhajjar towards Delhi while driving his Maruti Car. Near village Yakub Pur
Jhajjar, a truck stated to be driven in a rash and negligent manner came from
the front side and hit the Maruti car with great force. Due to the said
accident four of the occupants of the vehicle including the claimant herein
sustained bodily injuries in the road accident and were moved to Civil
Hospital, Jhajjar and thereafter to PGIMS Hospital, Rohtak.
3. Based on the evidence on record the Tribunal concluded that the
accident took place due to the rash and negligent driving of the driver of the
truck.
4. On compensation the four claim petitions were heard together.
However, as appeals have been filed only in one of the claim petitions we
are concerned with the case of Mr.Deepak Sinclair. In the case of the
claimant herein the Tribunal awarded a compensation of Rs.5,63,297/- as
follows:-
Compensation on account of pain and Rs.30,000/-
sufferings
Compensation on account of Rs.98,497/-
medicines,
medical treatment, conveyance and
special diet Rs.7,000/-
Compensation on account of permanent Rs.3,82,800/-
disability and loss of income
Compensation on account of physical Rs.25,000/-
disfigurement
Compensation on account of loss of Rs.20,000/-
enjoyment and amenity of life
Total Rs.5,63,297/-
5. The Tribunal noted that as per the disability certificate issued by RML
hospital, New Delhi the claimant has suffered 40% disability in relation to
the whole body. The claimant is a graduate from St.Stephen College, Delhi.
He has completed three years Diploma in Hotel Management from Pusa
Institute, Delhi. He was working as Manager Operations in VVR Group of
Hotels Limited in Connaught Place at a monthly salary of Rs.8,000/- per
month. As the claimant was 51 years old at the time of the accident the
Tribunal after having taken the salary at Rs.8,000/- per month enhanced the
same by 50% for future prospects. The Tribunal also took the functional
disability at 40%. 1/3rd was deducted for personal expenses. Rs.3,82,800/-
was awarded as compensation for loss of income due to the permanent
disability.
MAC.APP.866/2011
6. I will first deal with Mac.App.No.866/2011 filed by the Insurance
Company. Learned counsel appearing for the appellant has impugned the
Award on three grounds. He firstly submits that it is a case of head on
collision. Reliance is placed on Bijoy Kumar Dugar vs. Bidya Dhar Dutta
and Others, 2006 (3) SCC 242 to contend that both the parties would be
jointly liable for the amount awarded to the claimant. It is secondly
submitted that the Award of the sum of Rs.3,82,800/- for loss of income is
misplaced as there is no evidence on record to show that the claimants
suffered any loss of income. It is lastly submitted that the Tribunal after
having computed the income of the claimant at Rs.8,000/- per month has
erroneously enhanced the same by 50% for future prospects. It is averred
that as per judgments of the Supreme Court since the claimant is 51 years of
age enhancement for future prospects should have been only 15% and not
50%.
7. As far as the first contention is concerned regarding there being a
head on collision the Tribunal has relied upon the copy of the challan filed
under section 279/337/338 IPC, FIR, mechanical inspection report etc. The
Tribunal has also relied upon evidence of PW-1 Mr.Stiphen Able to
conclude that the truck in question was being driven by its driver in a rash
and negligent manner and the truck came from the opposite direction and hit
the Maruti Car with great force. The Tribunal noted that the testimony of
PW-1 has not been challenged.
8. Hence, the contention that there was a head on collision and hence the
driver of both the vehicles should have equal liability is misplaced in view
of the facts recorded by the Tribunal. The appellant insurance company has
failed to demonstrate as to why the findings recorded by the Tribunal are to
be disturbed. There is no merit in the said contention.
9. Bijoy Kumar Dugar vs. Bidya Dhar Dutta and Others, (supra) was a
case in which the Tribunal did not accept the evidence of the eye witness to
prove that the driver of the offending bus was driving the bus at an abnormal
speed. The Tribunal also concluded on facts that it was a head on collision
and that the deceased had already seen the bus coming from the opposite
direction from a long distance and could have taken precautions. The
Supreme Court did not interfere in the findings of the Tribunal. On facts the
present case is entirely different from that of Bijoy Kumar Dugar vs. Bidya
Dhar Dutta and Others, (supra). The said judgment has no application to
this case.
10. Regarding future prospects in the case of Rajesh & Ors. vs. Rajbir
Singh and Ors. (2013)9 SCC 54, the Supreme Court has held that where the
claimant/deceased is above 50 years of age future prospects @15% would
be appropriate. Hence, there is merit in the submission of learned counsel
for the appellant/insurance company. The salary of Rs.8,000/- per month
would be enhanced by 15% to Rs.9,200/- and not by 50% to Rs.12,000/- as
has been done.
11. Coming to the next submission of learned counsel for the appellant
i.e. that the appellant suffered no loss of income.
12. Learned counsel appearing for the respondents has argued on this
submission that there is no merit in the contention of the insurance company
inasmuch the claimant had lost his job after the accident.
13. In his affidavit by way of evidence the claimant has clearly stated that
he had lost his job. In his cross-examination he says that he started working
since October, 2009. No question was asked about any drop in his income.
14. Accordingly, there is no merit in the said contention of the appellant.
The present appeal is allowed by reducing the future prospects from 50% to
15% for computing loss of dependency.
MAC.APP.939/2011
15. This is an appeal filed by the claimants seeking enhancement of the
compensation. Learned counsel appearing for the claimant has made three
submissions for enhancement of the compensation. He firstly submits that
the Tribunal has wrongly awarded a sum of Rs.98,497/- as compensation for
the medical expenses. It is stated that the claimant has alongwith his
evidence placed on record 64 bills on account of the medical treatment
which aggregate to Rs.17,00,582/-. It is urged that a chart showing the
aggregate total of the bills was filed but the Tribunal has erroneously taken
only last page of the chart which shows Bill Nos.54-64 totalling Rs.98,497/-.
It is urged that the combined total of the 64 bills is Rs.17,00,582/- which has
been ignored by the Tribunal.
16. The second submission is that the claimant has to undergo a surgery
of hip replacement. Reliance is placed on the evidence of PW7 Dr.P.S.Gill
from Orthonova Hospital, Delhi. It is urged that total cost of hip replacement
is roughly to cost Rs.5,18,580/- which has wrongly been disallowed by the
Tribunal.
17. It is lastly urged that the Tribunal has while computing loss of
income erroneously deducted 1/3rd for personal expenses. It is urged that the
deduction for personal expenses is made only in the case where in the
accident the victim has died and not in injury cases.
18. Learned counsel appearing for the insurance company has submitted
that the bills which have been proved by the claimant have been duly
awarded to the claimant and the contention for loss of income is misplaced.
The counsel has also denied the need for hip replacement of the claimant.
19. As far as the first contention of the claimant is concerned the chart
filed shows that total 64 bills have been placed on record which total
Rs.17,00,582/-. However, in his affidavit by way of evidence as PW-3 he
has stated that he has spent Rs.14 lacs on his treatment, medicines,
conveyance and special diet.
20. The evidence by way of affidavit of PW-1 states as follows:-
"9. That I spent around Rs.14,00,000/- on my treatment,
medicines, conveyance, special diet etc. besides that as I was
not able to perform my usual work such as answer to call of
nature so I was constrained to keep an attendant for me during
the period of my bed rest of 14 months for which I paid
Rs.42,000/- @ Rs.3,000/- p.m. During this period I had
different attendants/helpers."
21. In his cross-examination he states as follows:-
".. I have expend Rs. 20 lakhs so far on my treatment. I have
placed on record bills of approximately Rs. 15 lakhs. I have
availed medi-claim of my family.."
22. Despite having claimed some amount from the medi-claim policy, no
details of the same have been provided. The statements of expenditure are
sketchy. Only bills are enclosed without indicating any further details.
Keeping in view the background facts and evidence by way of affidavit
placed on record, I award Rs.5 lacs for medicine, medical treatment and
conveyance.
23. As far as the second contention is concerned about claiming a sum of
Rs.5,18,580/- for hip replacement PW-7 Dr.P.S.Gill has stated that the
claimant has to undergo hip replacement. His evidence was made in 2011.
The accident is of 2006. It is not clear as to how the claimant has continued
his functioning without any hip replacement for these five years. The
evidence is bereft of details as it does not explain as to how beneficial the
hip replacement surgery would be to the claimant. I hence do not accept the
said claim of the claimant.
24. As far as the contention of 1/3rd personal expenses are concerned the
said contention of the claimant has merits. In injury cases no deductions are
made for personal expenses. Accordingly, the deduction of Rs.1900 per
month in the computation done for loss of income is misplaced. I modify the
award to that extent. Hence, the compensation on account of permanent
disability and loss of income comes to Rs.4,85,760/- [(9200 x 12) x 11 x
40%]
25. The total compensation now payable by the insurance company to the
claimant would now be as follows:-
Compensation on account of pain and Rs.30,000/-
sufferings
Compensation on account of Rs.5,00,000/-
medicines,
medical treatment, conveyance and
special diet Rs.7,000/-
Compensation on account of permanent Rs.4,85,760/-
disability and loss of income
Compensation on account of physical Rs.25,000/-
disfigurement
Compensation on account of loss of Rs.20,000/-
enjoyment and amenity of life
Total Rs.10,67,760/-
26. The insurance company respondent no.3 will deposit the additional
compensation amount alongwith interest @7.5% per annum with the
Registrar General of this Court from the date of filing the claim petition till
deposit in Court. Registrar General shall release 50% of the additional
amount. Balance 50% shall be kept in fixed deposit with UCO Bank, Delhi
High Court for a period of five years.
27. Appeal is accordingly disposed of.
JAYANT NATH, J
OCTOBER 17, 2014
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