Rajendra Kumar Mittal vs Kanhai Lal & Ors
2014 Latest Caselaw 4085 Del

$~A-16 to 18
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 02.09.2014
+     MAC.APP. 319/2014

      SINDHU MITTAL                                     ..... Appellant
                   Through              Mr.Shekhar Aggarwal, Advocate.

                         versus

      KANHAI LAL & ORS                                  ..... Respondents
                   Through              Mr.K.L. Nandwani, Advocate.

+     MAC.APP. 321/2014

      SUBHASH CHAND MITTAL                 ..... Appellant
                  Through  Mr.Shekhar Aggarwal, Advocate.

                         versus

      KANHAI LAL & ORS                                  ..... Respondents
                   Through              Mr.K.L. Nandwani, Advocate.

+     MAC.APP. 325/2014

      RAJENDRA KUMAR MITTAL               ..... Appellant
                  Through Mr.Shekhar Aggarwal, Advocate.

                         versus

      KANHAI LAL & ANR                                  ..... Respondents
                   Through              Mr.K.L. Nandwani, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH




MAC.APP.319/2014, 321/2014 & 325/2014                        Page 1 of 9
 JAYANT NATH, J. (ORAL)

1. The present appeals are filed seeking enhancement of the compensation amount.

2. The first appeal i.e. MAC APP. No. 319/2014 is filed by Smt.Sindhu Mittal, MAC. APP. No. 321/2014 is filed by Sh.Subhash Chand Mittal who is the husband of Smt. Sindhu Mittal and MAC.APP. No.325/2014 is filed by Sh.Rajender Kumar Mittal said to be the brother of Sh.Subhash Mittal. All the three appellants were travelling together on 06.11.2011 in a Santro Car and were going towards Shikarpur, Bulandshahar. When they reached near Bilsuri Pulia, they were hit by a truck being driven rashly and negligently. All the persons travelling in the car suffered injuries.

3. Coming first to MAC APP. No. 319/2014. Smt.Sindhu Mittal is stated to have suffered head injury, injuries on face, fracture in orbit eye, dental injuries, teeth broken and fracture of right leg ankle besides other injuries. She was taken to Shubham Fracture and Maternity Hospital and thereafter referred to Max Hospital, Patparganj. An operation was performed on her left leg. The Tribunal Awarded to her the following compensation totalling Rs.97,967/-.

       1. Compensation towards pain and                     Rs.50,000/-
          sufferings.
       2. Loss of earning of petitioner for one             Rs.15,179/-
          month.
       3. Compensation towards special diet and             Rs.5,000/-
          conveyance (without bills)
       4. Compensation towards attendant                    Rs.6,656/-
          charges for one month.
       5. Compensation towards balance medical bill         Rs.21,132/-
          amount.
                         Total                              Rs.97,967/-

4. Learned counsel appearing for the appellant has made three submissions. He firstly submits that out of the medical bills amount of Rs.1,36,418/- plus Rs.24,408/-, a sum of Rs.1,26,469/- and Rs.13,225/- respectively have been reimbursed to the appellant by the Government who is the employer of the husband of the appellant/Smt.Sindhu Mittal. Balance has been reimbursed to the appellant by the Tribunal. Learned counsel submits that this is contrary to the judgment of the High Court and the Supreme Court. He relies upon the judgment of this High Court in the case of National Insurance Co. Ltd. vs. Aman Kapur & Ors. 2014 ACJ 1342. He also relies upon the judgment of the Andhra Pradesh High Court in the case of The New India Assurance Company Ltd. vs. Mudan Kistaiah & Anr. in MAC.APP. No. 2626/2009 decided on 06.06.2014. He seeks payment of the said bills reimbursed by the employer of the husband i.e. the sum of Rs.1,24,469/- plus Rs.13,925/-. He secondly submits that the loss of earning awarded to the appellant/Smt. Sindhu Mittal is on the lower side. He submits that in the Award, the Tribunal notes that the appellant must have remained out of work for 2-3 months. However, despite the said note the Tribunal awarded compensation only for one month for loss of earning. He lastly submits that the payment made on account of compensation towards Special Diet and Conveyance to the appellant is on the lower side.

5. Coming to the first submission of the learned counsel for the appellant, a reference may be had to the judgment of the Andhra Pradesh High court in the case of The New India Assurance Company Ltd. vs. Mudan Kistaiah & Anr. (supra). That was a case in which the claimant had received reimbursement of medical expenses from the Insurance Company

under the Mediclaim Policy. In those facts, the Andhra Pradesh High Court held that a tort feasor cannot be let off at the expense of the employer.

6. Reference may also be had to the judgment of the Delhi High Court in the case of National Insurance Co. Ltd. vs. Aman Kapur & Ors.(supra). This Court while quoting with approval the judgment in the case of Dr.A.C.Mehra vs. Behari Lal & Anr., I (1997) ACC 657 held that in an action for injuries caused by the defendant's negligence a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages. In that case the High Court was of the view that the Personal Accident Policy can always be claimed against the tort feasor as the victim has paid the premium for getting the said policies. In the present case there is no such averment on the part of the appellant or her husband. The appellant cannot claim medical reimbursement from two separate sources simultaneously. The measure of damage is the pecuniary loss suffered. Allowing such a claim will result in enriching the appellant. The said contention of the appellant has no merit.

7. I may note a contradiction in the case of the appellant. It is implicit in seeking reimbursement of medical bills from the office of the husband i.e. the Government that the appellant must have been shown in the record of the employer as a dependent of her husband. Hence, her claim that she was earning is contrary to her present stand as she was shown as a dependent of her husband in government record.

8. Coming to the loss of earning. A perusal of the evidence of the appellant who entered the witness box as PW-3 shows that she has not clarified the nature of her profession. All that she says is that she was running a business of advertising and publishing and earning Rs.2 lacs per

annum. His qualification and experience to run the said business is not given. In her cross-examination she admitted that she had not brought any document to show that she was running a business of advertising. Hence, it is not possible to really determine as to how many days the appellant was on leave from work and had to remain absent from work. No detailed evidence in this regard is available. In the light of the findings recorded by the Tribunal, the award on account of loss of wages for one month for the leave the appellant had to take is in order.

9. Coming to the issue of Special Diet and Conveyance charges as awarded by the Tribunal. The only evidence led is a plain statement saying that she cannot drive her conveyance for her entire life and due to which disability she expected to spend Rs.50,000/- for rest of her life on conveyance. The evidence is vague. In the light of this evidence, it is not possible to grant any higher amount for Special Diet/Conveyance as sought for.

10. The appeal i.e. MAC.A.319/2014 is dismissed.

11. Coming to MAC. A. 321/2014. This appeal is filed by Sh.Subhash Chand Mittal. In the accident he suffered head injury, injuries on the face, fracture of left hand and left knee, etc. He was awarded the following compensation:-

       1. Compensation towards pain and                 Rs.60,000/-
          sufferings.

2. Loss of earning of petitioner for 23 days @ Rs.48,507/- Rs.63,266/- p.m.

3. Compensation towards special diet and Rs.5,000/-

          conveyance (without bills)
       4. Compensation towards attendant                Rs.6,656/-
          charges for one month.

5. Compensation towards balance medical bill Rs.6,779/- amount.

Total Rs.1,26,942/-

Rounded off to Rs.1,26,950/-"

12. Learned counsel appearing for the appellant submits that though the appellant remained on leave from 06.11.2011 to 25.12.2011, which is clear from Ex.PW-1/6-the leave certificate placed on record, the Tribunal has only given compensation for 23 days leave.

13. A perusal of the evidence of the appellant who entered the witness box himself as PW-1 would show that there are no details given the loss due to leave taken i.e., whether he received salary for the leave, etc. The argument of the learned counsel for the appellant that he could have utilised the said leave for some other purpose has no merit. There is no proper evidence led to show as to why loss of earning for 23 days, namely, the period for which the appellant claimed that he needed an attendant, is not sufficient to determine the loss of leave.

14. There is no merit in the appeal. The present appeal i.e. MAC.A.321/2014 is dismissed.

15. MAC.APP.No.325/2014 is filed by Mr.Rajender Mittal who is the brother of Shri Subhash Chand Mittal. The said Mr.Rajender Kumar Mittal suffered head injuries, injuries on face, fracture on right hand, right leg and right ankle. He was running business of timber merchant. The Tribunal awarded to him compensation as follows:-

"1.Compensation towards pain and sufferings : Rs.70,000/-

2.Compensation towards loss of amenities : Rs.60,000/- and enjoyment

3. Compensation towards medical bills : Rs.1,89,575/-

4. Compensation towards loss of earning : Rs.64,712/- For four months @ Rs.16,178/- p.m.

5. Compensation towards conveyance and : Rs.10,000/- Special diet (without bills)

6. Compensation towards loss of future : Rs.1,79,293/- Earning Therefore, in my opinion the petitioner is entitled to Rs.5,73,580/- which shall be the just compensation to petitioner."

16. Learned counsel appearing for the appellant submits that the appellant suffered permanent disability of 15% in relation to right upper limb and right lower limb. He submits that the appellant was working as a timber merchant. He states that the Tribunal has erroneously fixed the functional disability at 8% for the whole body. He further states that the nature of business of the appellant being of timber merchant, would require a lot of movement and mobility which has been severely curtailed. He submits that the functional disability should have been at least 15% and the compensation should be enhanced accordingly. He secondly submits that while computing the loss of income the Tribunal did not grant any increase in income assessed based on future prospects. He submits that the appellant is 51 years of age and the assessed income which the Tribunal took as Rs.16,978/- per month should have been enhanced by at least 20% for future prospects and compensation amount be paid accordingly. He lastly submits that though the appellant suffered injuries on his limb no payment has been awarded for disfigurement.

17. As far as the issue of assessment of functional disability is concerned, the Tribunal noted that the permanent disability is 15% in relation to right upper limb and right lower limb. The Tribunal also noted that in the

evidence, the appellant failed to explain the work being done by him while working as a timber merchant. In these facts and circumstances of the case, the Tribunal assessed the disability in relation to the whole body as 8%.

18. In my view there is nothing on record to disturb the said findings of the Tribunal. The appellant Mr.Rajender Kumar Mittal in his evidence by way of affidavit as PW-4 merely states that he was running a business of timber merchant and earning Rs.30,000/- per month. He further submits that he is living a life of a crippled due to the disability. There is no attempt to elaborate the nature of work that he was performing while being a timber merchant. In today's age of technology, even a timber merchant may be able to carry on work by mere use of telephone and other telecommunication facilities sitting in his office. The appellant failed to elaborate the nature or method of doing his work.

19. Similarly, the appellant had also summoned Dr.Harish Mansukhani, Chief Medical Officer, LBS Hospital, Delhi as PW-7. The said doctor proved the disability certificate of the appellant as Ex.PW7/1. He in his cross-examination said that he cannot tell the disability in relation to the whole body as no such exercise has been carried out and the appellant was also not treated in their hospital.

20. Clearly there is no evidence led as to show how the work of the appellant has suffered due to the injuries. Given the nature of evidence on record there is no reason to interfere with the findings recorded by the Tribunal fixing the functional disability at 8%.

21. Coming to the next submission of learned counsel for the appellant pertaining to future prospects. The appellant is 51 years of age. In Rajesh vs. Rajbir (supra) the Supreme Court was of the view that for a person

between 50-60 years of age the enhancement of assessed income while computing compensation has to be made at 15% for future prospects. To that extent, there is merit in the contention of learned counsel for the appellant.

22. Learned counsel for the respondent has, however, submitted that the compensation awarded to the claimant is already on the higher side as the compensation has been awarded towards loss of earning for four months of Rs.64,712/- and also compensation has been awarded towards loss of future earnings of Rs.1,79,293/-. He submits that these two compensations are for the same purpose and hence there is a clear duplication of compensation awarded to the appellant.

23. In view of the said submission of the respondent which is on the face of it correct, in my view there is no reason or occasion to increase the compensation awarded on account of future prospects. The Tribunal has already awarded excess amount under the aforenoted heads which are overlapping.

24. There is also no merit in the last submission of appellant about compensation for disfigurement. The nature of disfigurement is not on record. Given the nature of injuries suffered by the appellant there is no reason to interfere in the award of the Tribunal.

25. There is no merit. Appeal is dismissed.

JAYANT NATH, J SEPTEMBER 02, 2014 rb