Delhi High Court
Bajaj Allianz General Insurance ... vs Ravinder Goel & Ors. on 23 April, 2015
$-19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd April, 2015
+ MAC.APP. 948/2012
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD..... Appellant
Through: Mr. Rajat Brar, Adv.
versus
RAVINDER GOEL & ORS. ..... Respondents
Through: Mr. Harendra Kumar, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is for reduction of compensation of `2,56,000/- awarded
by the Motor Accident Claims Tribunal (the Claims Tribunal) in
favour of Respondent no.1 for having suffered injuries in a motor
vehicular accident which occurred on 13.12.2008.
2. It is urged by the learned counsel for the Appellant that the Claims
Tribunal awarded compensation of `50,000/- towards medical
expenses, whereas bills for `23,895/- only had been produced by
Respondent no.1. It is stated that the compensation of `1,00,000/-
awarded towards pain and suffering, shock, etc. is on the higher side.
3. It is also urged that the award of counsel's fee to the extent of
`40,000/- and out of pocket expenses amounting to `5,000/- is illegal
and is in violation of the Delhi High Court Rules and Orders.
4. I have the Trial Court record before me. Immediately after the
accident Respondent no.1 was taken to Jaipur Golden Hospital. He
was found to have suffered fracture acetabulum right. He was given
traction with 2.5 kg weight for two months. He remained under
treatment of Dr. K.D. Jain. On appreciation of evidence, the Claims
Tribunal found that Respondent no.1 could not attend to his work for a
period of six months.
5. The award of compensation of `76,000/- towards loss of income and
`15,000/- each towards special diet and conveyance is not disputed by
the Appellant.
6. It is not the case of Respondent no.1 that he could not retain all the
bills. He had produced bills for `23,895/-. The compensation awarded
towards medical expenses is on the higher side. The same is thus,
reduced to `25,000/-.
7. As far as award of compensation of `1,00,000/- towards pain and
suffering is concerned, it may be noted that Respondent no.1 was put
on traction on his right leg for about two months. During all this
period, he must have suffered immense pain, shock, agony and
discomfort. Hence, the compensation of `1,00,000/- in the
circumstances, cannot be said to be excessive and exorbitant.
8. As far as grant of counsel's fee to the extent of `40,000/- and out of
pocket expenses of `5,000/- are concerned, this question was gone
into at great length by this Court in ICICI Lombard General Insurance
Co. Ltd. v. Kanti Devi and Ors. MAC APP No. 645/ 2012 decided on
30.07.2012. Para 32 of the report is extracted hereunder:
"32. To sum up, it is directed:-
(i) The Claims Tribunal is empowered to award costs
in a Claim Petition in terms of Section 35 read
with Order XXA of the Code.
(ii) The Claims Tribunal is entitled to award the
Counsel's fee in accordance with Rule 1 read with
Rule 1A and Rule 9 of Chapter 16 Volume I of the
Rules extracted earlier.
(iii) In case of compromise/settlement of the claims, the
Claims Tribunal is not entitled to go beyond the
settlement reached between the parties. If the
settlement does not provide for payment of any
Counsel's fee, it shall not be within the domain of
the Claims Tribunal to award the Counsel's fee.
(iv) If the compensation is awarded on the basis of
DAR in pursuance of the legal offer made by the
Insurer, the Claims Tribunal is not empowered to
award any costs unless it forms part of the legal
offer.
(v) The counsel fee can be directly paid to the counsel
only when a specific agreement is filed and the
Claimant requires payment of fee directly to the
counsel because only then the Claimant would be
liable to reimburse the fee or part thereof in case
the award is set aside or varied.''
9. In Kanti Devi(supra), it was thus, concluded that instead of awarding
counsel's fee, the Claim Petition ought to have been allowed with
costs and the counsel's fee was to be paid only in accordance with
Rules 1, 1A and 9 of Chapter 16 Vol. I of the Delhi High Court Rules
and Orders.
10. Hence, the award of counsel's fee and out of pocket expenses in this
manner was not permissible. At the most, the Claims Tribunal could
have decreed the Claim Petition with costs which should have
included counsel's fee in accordance with Delhi High Court Rules and
Orders. The award of counsel's fee and out of pocket expenses is,
consequently, set aside.
11. The compensation is thus, reduced from `2,56,000/- to `2,31,000/-.
12. By an order dated 28.08.2012, the execution of the impugned award
was stayed subject to deposit of 50% of the award amount, less
counsel's fee. The balance compensation along with interest @ 9% per
annum, as awarded by the Claims Tribunal, shall be deposited by the
Appellant Insurance Company with UCO Bank, Delhi High Court
Branch, New Delhi within six weeks.
13. On deposit, the compensation shall be released in favour of
Respondent no.1.
14. The appeal is allowed in above terms.
15. Pending applications stand disposed of.
16. Statutory amount, if any, deposited shall be refunded to the Appellant
Insurance Company.
(G.P. MITTAL)
JUDGE
APRIL 23, 2015
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