Delhi High Court

Anil Chaudhry vs National Insurance Co. Ltd. on 10 February, 2015

Author: G.P. Mittal

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Decided on: 10th February, 2015

+       MAC.APP. 629/2007

        ANIL CHAUDHRY                                  .... Appellant
                    Through:            Appearance not given.

                    versus

        NATIONAL INSURANCE CO. LTD.       ..... Respondents
                     Through: Mr. Pardeep Gaur, Adv. for
                               R-1.
        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL


G. P. MITTAL, J. (ORAL)

1. The appeal is for enhancement of compensation of Rs.92,000/-

with interest @ 6 % per annum from the date of filing of the

petition granted to the Appellant for having suffered injuries in

a motor vehicular accident which occurred on 15.04.1993.

2. During enquiry, the Claims Tribunal on appreciation of

evidence found that the accident was caused due to rash and

negligent driving of a truck bearing no.DEG-2343 as well as the

Appellant himself and hence, it assessed equal contribution of

both the parties and made the Respondent Insurance company

liable to pay compensation only of 50% of Rs.1,84,000/-, i.e.,

Rs92,000/-. While doing so, the Claims Tribunal awarded

Rs.10,000/- for purchase of medicines, Rs.5,000/- towards

conveyance charges and Rs.5,000/- towards special diet,

Rs.20,000/- towards pain and sufferings, and Rs.1,44,000/-

towards loss of earning capacity. On date of the accident, the

functional disability caused to the Appellant comes to be 25%

on an income of Rs.3,000/- per month.

3. Following contentions are raised on behalf of the Appellant:-

(1) The Appellant proved his income to be Rs.10,000/- per

month but the Claims Tribunal assessed the income to be

Rs.3,000/- per month;

(2) Although there was 50% disability on account of injury in

his right eye, the Claims Tribunal granted compensation only

to the extent of 25% functional disability;

(3) The compensation awarded towards pecuniary and non-

pecuniary damages is on the lower side; and

(4) There is no negligence on the part of the Appellant and

thus, the Claims Tribunal erred in making the tortfeasor liable to

pay only 50% of the awarded compensation.

5. On the other hand, the learned counsel for the Respondent

National Insurance Company Limited supports the impugned

judgment and states that the compensation awarded is just and

reasonable.

NEGLIGENCE

6. It is argued that the Claims Tribunal held the Appellant liable

for contributory negligence simply because the doctor noticed

the smell of alcohol upon the Appellant while preparing his

MLC. Relying on judgment of the Supreme Court in Jiju

Kuruvila and others v. Kunjujamma Mohan and others, 2013

ACJ 2141, learned counsel argues that simply on the ground of

smell of alcohol, the Claims Tribunal ought not to have held

that the Appellant also contributed to the negligence.

7. The Claims Tribunal analysed the evidence on negligence in

para 5 and 6 of the impugned judgment which are extracted

hereunder:-

"Negligence

5. In order to prove negligence on the part of truck driver, petitioner testified that on 15.04.93 at about 10.30 PM the petitioner was driving the car no.DL-4C-2923 and was going on ring road. When he reached opposite Hot Mix Plant, the driver of truck bearing registration no. DEG-2343 which was going ahead of the car all of a sudden stopped the truck. To avoid impact, the petitioner swerved his vehicle to the left side and despite best efforts, the front portion of the car hit against the left rear portion of the truck. It is not in dispute that a case FIR, Ex.PW1/A was registered in respect of this accident.

6. It is submitted by Ld. Counsel for insurance company that there was negligence on the part of petitioner who was under the influence of liquor at that time as well as it is who hit the truck. On the other hand, it is submitted by Ld. Counsel for petitioner that there was no negligence on the part of petitioner. The statement of petitioner regarding negligence on the part of truck driver remained unchallenged. Even the owner of the truck has not preferred to contest the claim petition. It is significant to note that insurance company specifically took the plea in the WS that accident has taken place due to the negligence of petitioner himself. It is proved from medical record that when the petitioner was taken to hospital after the accident there was smell of liquor in his breath. Though as per him, truck stopped abruptly and he swerved his vehicle to the left side but still the accident took place. It is a matter of common knowledge that a safe distance is to be kept between the vehicles while driving. The fact that despite of the efforts made by the petitioner he could not avoid the accident shows that he was also driving his car at a fast speed and

also he has consumed liquor. Definitely there was contributory negligence on the part of the petitioner to the extent of 50%".

8. Thus, it was not merely on account of smell of alcohol that the

Claims Tribunal held that the Appellant contributed to the

negligence. It was mainly on account of the fact that the

Appellant was driving his car bearing no.DL 4C 2933 too close

behind the offending truck that the Claims Tribunal observed

that the driver ought to have maintained a reasonable distance

from the vehicle going ahead to control his vehicle as he was

unable to avoid the impact even after swerving his car to the

left. The finding reached by the Claims Tribunal cannot be

faulted.

INCOME AND LOSS OF EARNING CAPACITY

9. The Appellant claims his income to be Rs.10,000/- per month. It

was stated that the Appellant is a TV artist and producer of

various serials. Admittedly, no income tax had been paid or any

ITR filed by the Appellant till the date of the accident. For the

first time such Income Tax Returns (ITRs) as per the learned

counsel for the Appellant were filed in the years 2001 and 2002.

As any income beyond Rs.35,000/- per annum was subject to

tax in the Assessment Year 1993-94, the Claims Tribunal took

the monthly income of the Appellant as Rs.3,000/- per month at

the time of the accident . It was clearly justified.

10. As far as disability is concerned, the disability certificate

Ex.PW5/8 shows that the Appellant suffered from right eye

corneal opacity with traumatic cataract No.PC loss of 6/6.

Thus the disability was opined to be 50%. The Appellant

remained under treatment in Guru Nanak Eye Centre. He

consulted various surgeons in Mohan Eye Institute, Dr. R.B.

Jain and Dr. Rajinder Prasad Centre for Ophthalmic Sciences

(AIIMS). It was only thereafter that the certificate Ex.PW5/8

was issued. It is common knowledge that though each body

part is required for normal day to day functions of life, yet the

five sense organs of the body are the most essential which make

life worth living. Eyes being one of the five, they are essential

for every human being equally, be it in what ever vocation or

profession. Moreover, since it was not disputed that the

Appellant had produced a couple of serials and was also a TV

artist, his major source of earning would have been his face and

since injury to the eye would have severely disfigured the face,

or in other words, the functional disability in the instant case

ought to have been taken as 50%.

11. Since the Appellant was not in permanent employment but was

a self-employed person and in the absence of any specific

evidence with regard to better future prospects, no addition is

permissible in view of the three Judge Bench decision of the

Supreme Court in Reshma Kumari & Ors., v. Madan Mohan &

Anr., (2013) 9 SCC 65 and of this Court in HDFC Ergo

General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors. MAC

APP No. 189/ 2014 decided by this court on 12.01.2015. Loss

of earning capacity, therefore comes to Rs.2,88,000/- (3,000 x

1/2 x 12 x 16).

PECUNIARY AND NON-PECUNIARY DAMAGES

13. Immediately after the accident, the Appellant was removed to

AIIMS and then referred to Safdarjang Hospital where he was

admitted from 16.4.93 to 22.4.93. Apart from serious injury in

his right eye, the Appellant suffered major fracture nasal bone

along with fracture zygama and maxilla. He also fractured his

ribs and right wrist. Documents have been placed on record to

show that the Appellant remained an indoor patient from

16.4.93 to 22.4.93. He remained an outdoor patient in Guru

Nanak Eye Centre, Dr. Hari Mohan Clinic as well. He also

consulted Dr. R.P. Jain and remained under treatment till the

end of the year 1994 in Dr. Rajinder Prasad Centre for

Ophthalmic Sciences (AIIMS).

14. Considering the prolonged treatment and the disability suffered,

the compensation towards pecuniary and non-pecuniary

damages needs to be enhanced. I tend to award the following

compensation:

        S.No.             Head of compensation           Granted by
                                                         this Court.

        1.         Loss of dependency                   Rs.2,88,000/-

        1.         Conveyance Charges                   Rs.15,000/-

        2.         Special diet                         Rs.15,000/-

        3.         Pain and suffering                   Rs.20,000/-

        4.         Loss of amenities                    Rs.50,000/-




         5.         Cost of treatment and medicines         Rs.20,000/-

                                                     Total Rs.4,08,000/-

15. The compensation therefore, is enhanced from Rs.1,84,000/- to

Rs.4,08,000/-.

16. The Claims Tribunal awarded interest @ 6% per annum. The

claim petition was filed in October, 1993, The interest rates

from 1993 to 2003 and again from 2007 were quite high. In

view of the same, award of interest @ 6% per annum seems to

be on the lower side. The Appellant would be entitled to interest

@ 7.5% per annum from the date of filing of the petition till its

payment.

17. Since I have affirmed the Claims Tribunal finding of

contributory negligence 50% of enhanced compensation i.e.

Rs.1,12,000/- (50% of Rs.2,24,000/-) along with the difference