Delhi High Court
Babita vs Ved Prakash & Ors. on 16 September, 2014
Author: Jayant Nath
$~A-5 & A-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16.09.2014
+ FAO 514/2003
BABITA ..... Appellant
Through Mr.Bhupesh Narula, Advocate
versus
VED PRAKASH & ORS. ..... Respondent
Through Mr.Shoumik Mazumdar, Advocate
for Mr.Pankaj Seth, Advocate for the
Insurance Company /R-3
+ FAO 801/2003
NEW INDIA ASSURANCE CO.LTD. ..... Appellant
Through Mr.Ramesh Kumar, Advocate,
versus
BABITA & ORS. ..... Respondent
Through Mr.Bhupesh Narula, Advocate for
R-1
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The above two appeals arise out of the Award dated 26.4.2003 passed
by the Tribunal.
2. FAO 514/2003 is filed by the claimants seeking enhancement of the
compensation amount awarded by the Tribunal.
3. FAO 801/2003 if filed by the Insurance Company seeking directions
that the liability of the insurance company is limited only to the sum of
Rs.15,000/-.
4. I will first deal with the submissions of the insurance company in
Appeal No.801/2003.
5. The brief facts leading to the filing of the claim petition are that the
injured Ms.Babita the claimant on 8.2.1985 was returning to her house. She
boarded the bus from her school, namely, Govt.Girls Senior Secondary
School, Prahlad Pur. The bus was under the contract of Directorate of
Education, (Delhi Administration) for bringing and dropping students of the
school from the respective houses. It is stated that the bus was required to
make three trips and for the said purpose it was paid by the Directorate of
Education on kilometre basis. On 8.2.1985 the driver of the offending
vehicle with a view to cover up two additional trips lifted all the students of
the three trips in the bus and as such the bus was heavily over-packed. The
driver of the offending vehicle was driving the bus at a very fast speed
recklessly and negligently and applied strong brakes frequently. As a result,
the students, including the claimant were getting severe jerks and forceful
pushes. The students were colliding amongst themselves due to the rash
manner of driving. Despite warning to the driver he did not pay any heed.
At Pankhey Wali Kuin Barwala the bus took a sharp turn at a very fast
speed. The claimant was thrown out from the left side door of the bus and
the rear left side of the vehicle ran over both the legs of the claimant. The
bus driver did not stop the bus and continued to drive and took it to a long
distance. He was forced to bring the bus back to the spot by the students of
the bus and teacher Smt.Krishna. The claimant suffered multiple grievous
injuries.
6. Based on the evidence on record the Tribunal held that the claimant
suffered injuries in the accident due to the rash and negligent driving of the
driver of the offending vehicle.
7. On compensation the Tribunal awarded the following compensation:-
1. Medical expenses Rs.20,000/-
2. Special Diet Rs.5,000/-
3. Conveyance Charges Rs.5,000/-
4. Loss of one academic year Rs.20,000/-
5. Pain and suffering Rs.50,000/-
6. Permanent disability, Rs.1,50,000/-
adverse impact on matrimonial
prospects and future expenses.
TOTAL Rs.2,50,000/-
8. On the issue of liability the Tribunal rejected the contention of the
Insurance Company that in respect of any one claim or series of claims, the
maximum liability is Rs.15,000/-. The Tribunal noted that the terms and
conditions of the insurance policy or the proposal form containing the terms
and conditions of the policy in question are not produced. Hence, the
Tribunal drew an adverse inference under section 114 of the Indian
Evidence Act. The Tribunal held that the insurance company has unlimited
liability to pay compensation to the claimants.
9. Learned counsel appearing for the insurance company in FAO
801/2003 has strenuously urged that the directions in the Award that the
insurance company has unlimited liability is erroneous. Learned counsel
urged that the applicable provisions of the India Motor Tariff for the
relevant period the statutory liability was Rs.15,000/- per passenger. He
further submits that in the absence of excess premium, though the insurance
company may have to pay a third party, but it would have the recovery
rights against the owner and driver of the offending vehicle.
10. In a recent judgment dated 1.9.2014 in FAO No.177/1994 this Court
has already dealt with the similar submissions of an insurance company. In
that case also the submission was that under the Motor Vehicles Act, 1939
the third party liability was not unlimited. Counsel for the insurance
company in that case had pointed out that under the terms and conditions of
the insurance policy the limit of third party liability was fixed at Rs.50,000/-
and that in case the liability was more than the said Rs.50,000/- it could
recover from the insured/owner of the offending vehicle. For the said
purpose reliance was placed on the judgment of the Supreme Court in the
case of New India Insurance Company Ltd. vs. Vimal Devi, 2010 ACJ
2878 and of this High Court in the case of Gurcharan Kaur & Anr. vs.
Raja Ram & Anr., 182 (2011) DLT 494. The relevant submissions of the
insurance company in FAO 177/1994 in paragraph 3 read as follows:-
"3. Learned counsel appearing for the appellant submits that the
present issue pertains to the Motor Vehicles Act of 1939. He
submits that at that point of time the third party liability was not
unlimited like the present statute. He further points out that as
per terms and conditions of the insurance policy the limit of
third party liability was fixed at Rs.50,000/- and the respondent
No.3 Insurance Company had to specify the liability that may
arise in favour of a third party. In case the liability was more it
could recover the excess amount above Rs.50,000/- from the
insured/owner of the offending vehicle. He relies on the terms
and conditions of the insurance policy which are on the record of
the Trial court Ex.R-2. He also relies upon the judgment of the
Supreme Court in the case of New India Insurance Company
Ltd. vs. Vimal Devi and Ors. 2010 ACJ 2878 a judgment of this
Court following the aforesaid judgment i.e. the case of
Gurcharan Kaur & Anr. vs. Raja Ram & Anr., 182 (2011)
DLT 494. Learned counsel for respondent No.3 has pointed out
that before any liability is fastened or any recovery rights are
given to respondent No.3 company, it would be necessary that
the owner and driver of the offending vehicle, namely,
respondents No.1,2 and 4 should also be present.
11. This court in FAO 177/1994 in paragraphs 8, 9 and 10 held as
follows:-
8. The aforesaid clauses had directly come up for
consideration before the Supreme Court in New India
Insurance Company Ltd. vs. Vimal Devi and Ors. (supra).
This Court after reproducing the aforesaid clauses of the
avoidance policy clause, the Supreme Court in paragraph 7 held
as follows:-
"7. The Avoidance Clause in the policy in this case
makes all the difference and the direction of the High
Court to the Appellant, insurance company to make
payment of the full amount of compensation to the
claimants and to recover its dues from the owner of
the vehicle is directly in accordance with that Clause.
In our view, the submission of Mr. Calla is well
founded. The Appellant in this case can derive no
benefit from the decision in C.M. Jaya, 2002 ACJ 271
(SC)"
9. Similarly, this Court in the case of Gurcharan Kaur & Anr. vs.
Raja Ram (supra) in paragraphs para 50 and 51 held as follows:-
49. On a conspectus of the law laid down by the
Supreme Court and on perusal of the Schedule to the
insurance policy (Mark "A") and the Standard terms
of the India Motor Tariff relied upon by both the
parties, I am of the view that the only available
conclusion in the present case is that even though the
liability of the Insurance Company is limited qua the
insured as claimed by it, the liability of the Insurance
Company qua "any person" or a third party such as
the appellants is not limited. The necessary corollary
is that in accordance with the terms of the insurance
policy, the appellants are entitled to recover from the
Insurance Company the entire amount awarded by the
Claims Tribunal as enhanced by this Court.
50. To conclude, the appellants are held entitled to an
enhanced amount of compensation of Rs. 1,02,000/-
with interest as awarded by the Tribunal. The
Insurance Company is directed to pay the entire
amount to the appellants after deducting the amount,
if any, already paid. The Insurance Company shall be
entitled to recover the amount paid by it in excess of
its liability from the owner and driver of the vehicle in
accordance with law. The appeal is allowed in the
above terms. There shall be no order as to costs.
10. Hence, the clauses which are subject matter of the insurance
policy of respondent No.3 Insurance Company have already been
duly interpreted by the Supreme Court. A perusal of the said clause
and the judgment of the Supreme Court would clearly show that in
the facts of the present case the Insurance Company Respondent
No.3 would be liable to pay the award amount and would also
thereafter get recovery rights from the owner and driver of the
offending vehicle."
12. In FAO 801/2003 none has appeared for respondents No.2 and 3.
13. Hence, in view of the order of this Court in FAO 177/1994 I accept
the contention of learned counsel for the insurance company. I grant
recovery rights to the insurance company against the driver and owner of the
offending vehicle who are jointly and severally liable, namely, respondents
No.2 and 3.
14. FAO 801/2003 stands disposed of accordingly.
15. I will now deal with FAO 514/2013 filed by the claimant. Learned
counsel appearing for the claimant has strenuously urged that the Tribunal
has awarded inadequate compensation on account of the permanent
disability suffered by the claimant. He submits that a sum of Rs.1,50,000/-
was awarded for permanent disability which reads as follows:-
"Permanent disability, adverse impact on matrimonial prospects and
future expenses"
16. He submits that the claimant was a student of Class 10 th. She was to
appear for the Board examination in March 1985 for which she had received
her Roll No. She was an outstanding student and on account of the accident
she could not appear in the Annual Board examination. She also could not
appear in the next Annual Board examination. She suffered great loss of
studies. She was an active participant in sports and has earned certificates of
merits and had represented the school in sports like kabaddi and kho kho.
As a result of the injury she was unable to participate in the sports. Hence, it
is alleged that the compensation awarded is grossly inadequate. He further
submits that no compensation has been awarded for attendant charges. He
also states that for pain and suffering the Tribunal has awarded inadequate
compensation of Rs.50,000/-.
17. I may look at the relevant evidence on record PW-2 Dr.Anil Dhul
gave the permanent disability certificate Ex.PW2/1. He has stated that the
permanent disability of the claimant was assessed to be more than 40% for
diagnosis of "TB-HIV with right side malunited fracture of femur with gross
shortening". He further stated that this disability was with respect to the
whole body. PW-1 the claimant in her statement has stated that she
remained in hospital for three and half months. She further said that she
cannot sit properly nor can she walk even now.
18. The evidence shows that the claimant had 40% full body disability.
She was a bright student of 10th Class. She has remained in hospital for more
than 3 months and has suffered grievously on account of her disability.
19. The Supreme Court passed a recent judgment in the case V.Mekala
vs. M.Malathi & Anr., 2014 ACJ 1441, that was a case of a girl student who
was 16 years old and was a student of 11th Class. The incident took place on
11.04.2005. The Supreme Court in the facts and circumstances of the case,
awarded compensation of Rs.30,93,000/-. The Supreme Court keeping in
view the past results of the claimant had taken the income as Rs.10,000/-
per month on a notional basis and had applied 50% increase on the
principles laid down in the earlier judgment in the case of Santosh Devi vs.
National Insurance Co. Ltd. & Ors. (2012) 6 SCC 421 for future prospects.
The functional disability was assessed at 70%. For loss of earning the
Supreme Court awarded Rs.22,68,000/-. For pain and suffering the Supreme
Court awarded Rs.2,00,000/-, for attendant charges the Supreme Court
awarded Rs.2 lacs and for the loss of enjoyment of life and marriage
prospects the Supreme Court awarded Rs.3 lacs.
20. Keeping in view the fact that in the present case the accident took
place in the year 1985, in my opinion there is sufficient justification on
record to enhance the compensation amount awarded.
21. Hence, the compensation amount as awarded by the Tribunal under
the head of permanent disability, adverse impact and matrimonial prospects
is increased from Rs.1,50,000/- to Rs.4 lacs.
22. The compensation on account of pain and suffering of Rs.50,000/- is
also on the lower side. The claimant was hospitalised for three and half
months and had to undergo prolonged medical treatment. Hence, the
compensation on account of pain and suffering is enhanced from Rs.50,000/
to Rs.1,00,000/-.
23. The Tribunal did not award any amount for attendant charges.
Keeping in view the nature of injuries suffered and the date of the accident,
the claimant is awarded a sum of Rs.1 lac for attendant charges.
24. Hence, the compensation would now be read as follows:-
Medical expenses Rs.20,000/-
Special Diet Rs.5,000/-
Conveyance Charges Rs.5,000/-
Loss of one academic year Rs.20,000/-
Pain and suffering Rs.1,00,000/- (Tribunal awarded Rs.50,000)
Permanent disability, Rs.4,00,000/- (Tribunal awarded Rs.1,50,000)
adverse impact on matrimonial
prospects and future expenses.
Attendant charges Rs.1,00,000/- (Tribunal awarded Rs. Nil)
TOTAL Rs.6,50,000
25. The enhanced compensation as directed above would be paid by the
Insurance company within six weeks from today alongwith interest @ 6%
per annum from the date of filing of the claim petition till deposit in Court.
On receipt of the said amount the Registrar General shall release the
compensation to the claimants.
26. FAO APP. No.514/2003 stands disposed of accordingly.
JAYANT NATH, J
SEPTEMBER 16, 2014
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