Oriental Insurance Company Ltd vs Rajan @ N Khan & Anr
2014 Latest Caselaw 4883 Del

$~A-3 & A-7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


                                               Decided on 26.09.2014

+     MAC.APP. 886/2010
      ORIENTAL INSURANCE COMPANY LTD           ..... Appellant
                      Through Ms.Manjusha Wadhwa and Ms.Arpan
                              Wadhawan, Advocates
               versus
      RAJAN @ N KHAN & ANR                             ..... Respondent
                      Through Ms.Aruna Mehta, Adv. for R-1


+     MAC.APP. 711/2012
      RAJAN                                            ..... Appellant
                         Through      Ms.Aruna Mehta, Adv.
              versus
      HS CHANDOK AND ANR                                   ..... Respondent
                     Through          Ms.Manjusha Wadhwa and Ms.Arpan
                                      Wadhawan, Advocates

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. MAC.APP.886/2010 is filed by the appellant/Insurance Company seeking to impugn the Award dated 13.09.2010. MAC.APP.711/2012 is filed by the claimants seeking enhancement of compensation as awarded by the Tribunal.

2. The brief facts giving rise to the claim petition under section 166 and 140 of the Motor Vehicles Act, 1988 is that the claimant Rajan @ N.Khan was

going on a motorcycle on 12.11.2006. He was hit by a car said to be driven rashly and negligently by its driver at Keshav Puram, Delhi.

3. Based on the evidence on record the Tribunal framed the following issues:-

"i) Whether on 12.11.06 at T-point, Chandni Restaurant, road No.37, Keshav Puram, Car no.DL-1Y-A-4598 which was being driven in a rash & negligent manner by its driver hit motorcycle no.DL-4S-AM-9469 on which petitioner was riding and caused injuries to him? OPP.

ii) Whether petitioner himself was guilty of negligent driving? OPR-1

iii) Whether petition is bad for non-joinder of the driver of the offending vehicle? OPR-2

iv) Whether petitioner is entitled to compensation, as prayed for if so from which of the respondent? OPP

v)Relief."

4. On issues No.1 and 2 the Tribunal held that that the claimant had sustained injuries on account of the rash and negligent driving of the car in question which hit the motorcycle driven by the claimant.

5. On issue No.2 the Tribunal held that the driver is not a necessary party and in his absence the entire proceedings shall not be vitiated.

6. On issue No.4 the Tribunal awarded the following compensation:-

1.Compensation for pain & 50,000/-

sufferings

2.Compensation for expenses 1,69,153/- incurred on medical treatment

3.Compensation for future 3,00,000/-

       expenses on medical treatment


        4.Compensation for special         10,000/-
       diet
       5.Compensation for                 4,000/-
       conveyance charges
       6. Compensation for attendant      9,000/-
       charges
       7. Compensation for loss of        1,30,000/-
       income
       8. Compensation for loss of        2,52,000/-
       earning       capacity
       9.Compensation for loss of         50,000/-
       enjoyment of amenities of life
       & general damages
       10.Compensation on account         50,000/-
       of     inconvenience,
       hardship, discomfort,
        disappointment,     frustration
       and mental stress in life
       Total                              10,24,153/-


MAC.APP.886/2010

7. I will first dispose of the present appeal filed by the appellant/Insurance Company. Learned counsel appearing for the insurance company submits that it is a case in which the claimant has failed to prove the negligence of the offending vehicle i.e. the car. It is submitted that the driver of the said offending vehicle was not impleaded as a party and in the absence of the driver it cannot be determined as to whether he was negligent. Reliance is placed on the judgment of the Supreme Court in the case of Machindranath Kernath Kasar vs. D.S.Mylarappa and Others, 2008 ACJ 1964.

8. It is further submitted that the quantum of compensation awarded is on the higher side. It is urged that the Tribunal has wrongly assessed the income as

Rs.10,000/- per month based on Income Tax Returns including IT Return which was filed after the accident. It is further argued that the Tribunal has wrongly assessed the functional disability at 15%. A challenge is also made to the award of Rs.3 lacs for future medical treatment.

9. As far as negligence of the car is concerned the Tribunal noted the evidence of the claimant Rajan. Based on the testimony of the claimant which was unrebutted, as there was no cross-examination done, the Tribunal concluded that the accident took place due to the rash and negligent driving of the car.

10. There are no reasons to differ with the said findings recorded by the Tribunal.

11. On the contention of the appellant regarding non-impleadment of the driver, as rightly pointed out by learned counsel appearing for the claimant, the Supreme Court in the case of Josphine James vs. United India Insurance Co.Ltd. and Anr., 2013 (4) T.A.C. 22 (S.C.) held that non impleadment of the driver of the offending vehicle is not fatal to the proceedings in view of the fact that the liability of the owner and the insurer of the offending vehicle is joint and several.

12. Reliance of the Insurance Company on the judgment of the Supreme Court in Machindranath Kernath Kasar vs. D.S.Mylarappa and Others (supra) is misplaced. In the said judgment the Supreme Court held that the driver is not a necessary party in the sense that in his absence the entire proceedings are not vitiated as the owner of the vehicle was a party in the capacity as a joint tort feaser. Hence, there is no merit in the said contention of the appellant/Insurance Company.

13. As far as the assessment of income of the claimant is concerned, the Tribunal relied upon the Income Tax Returns of the claimant for the years 2003-04, 2004-05 and 2005-06 and assessed the income at Rs.10,000/- per month.

14. A perusal of the IT Returns of the claimant shows that for the year 2003- 04 he has shown an income of Rs.1,22,400/-. For the year 2004-05 he has shown the income of Rs.96,000/- and for the year 2005-06 he has shown a return of Rs.1,01,380/-. The last return of 2005-06 was filed on 31.03.2007 i.e. after the accident. However, keeping in view the fact that there are three Income Tax Returns on record and all three show a consistent income of around Rs.10,000/- per month, I see no reason to differ with findings recorded by the Tribunal assessing the income of the claimant as Rs.10,000/- per month.

15. Coming to the next submission of the insurance company regarding assessment of functional disability. The Tribunal noted that as per the Disability Certificate Ex.PW1/R-3/1 the claimant has a permanent disability of 29% of right lower limb.

16. The relevant portion of the disability certificate reads as follows:-

"..Shri N.Khan age 36 yrs son of Shri Amzad Ali Khan OPD/MRD No.HRH 146483 whose specimen signature is given below is suffering from # acetabulum R side and partial loss of squatting and sitting cross-legged. His disability is 29% (Twenty nine percent) of the right lower limb. It is therefore recommended/advised that he may be considered as a candidate for the benefits of completely permanent handicapped person."

17. A perusal of the evidence of PW-1 the claimant shows that in his evidence he has said that he is not in a position to walk properly on his feet. He

cannot walk for longer durations and cannot bend forward or bear any weight from his hip. He cannot drive any vehicle. Hence, it is urged that the claimant has become disabled and was constrained to give up earlier business and service which he was doing prior to his accident.

18. The claimant was not cross-examined on this part of the evidence. In the light of the above evidence, I see no reason to differ with the finding of the Tribunal holding the functional disability of the claimant at 15%.

19. Coming to the next submission of the appellant regarding grant of Rs.3 lacs compensation for future medical treatment, the Tribunal noted the evidence of PW-5 Dr.B.C.Jain, Sr.Orthopaedic Surgeon, Saroj Hospital, Delhi who had advised the petitioner to undertake surgery of the right hip which would cost Rs.3 lac and may reduce his disability by 1-2 %. As per Ex.PW5/2 the doctor gave an estimate of Rs.3 lacs for future medical treatment.

20. PW5/2 is issued by Saroj Hospital & Heart Institute by Dr.B.C.Jain, Senior Consultant Orthopaedics which reads as follows:-

"This is to certify that Mr.Nasir Ali Khan, Age/Sex: 37 yrs./M, examined by undersigned today. He complains of pain and difficulty in squattling R Hip. He was operated outside in November'2006. He needs another operation costing about Rs.3 lacs.

21. The evidence of Dr.B.C.Jain PW-5 reads as follows:-

"Patient Nasir Ali Khan came in my OPD and I have examined him in the OPD card no.169370 dated 24.09.09. The patient complained of pain in right hip and difficult in squatting. He was already operated for fracture right acetabulum (hip joint). Original OPD card is Ex.PW5/1 bearing my signatures at point A. I advised him surgery for right hip costing about Rs.3 lacs. After his surgery his pain will go and his disability will be reduced by 1-2%. The

estimate given by me is Ex-PW5/2 bearing my signatures at point A. Due to his disability he can not lift weight and can not sit more than 10-15 minutes.

xxx by counsel for R3, Ms.Umesh Kaushal Nil. Opp. given."

22. In the light of the above evidence on record I see no reason to disagree with the award of Rs.3 lacs for future surgery.

23. There is no merit in the appeal. Same is accordingly dismissed.

24. Statutory amount, if any, deposited by the appellant at the time of filing the appeal may be refunded to the appellant/Insurance Company. CM No.11542/2012 (delay of 565 days in filing the cross-appeal) in MAC.APP.711/2002

This is an application seeking condonation of delay of 565 days in filing the cross-appeal on the ground that father of counsel for the appellant was undergoing treatment for cancer due to which he could not properly pursue the case of the appellant.

I do not find any merit in the reasons stated in the application. Same is dismissed.

MAC.APP.711/2002

25. However, although I have dismissed the application for condonation of delay I shall consider the present cross- appeal on merits.

26. This is an appeal filed by the claimant seeking enhancement of the quantum of compensation. By this appeal the only ground taken in the grounds of appeal is that the Tribunal has wrongly dropped the driver of the offending vehicle i.e. the car. It is urged that the driver be impleaded as a party to the present proceedings as respondent No.3.

27. In view of the findings above that the impleadment of the driver was not necessary, there is no reason to pursue the present appeal. The same is accordingly disposed of.

JAYANT NATH, J SEPTEMBER 26, 2014 n