Delhi High Court
Suresh Kumar vs Ravi Kishan & Ors. on 5 March, 2015
$-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 5th March, 2015
+ MAC.APP. 1228/2012
SURESH KUMAR
..... Appellants
Through: Mr.O.P. Manie, Advocate
versus
RAVI KISHAN & ORS.
..... Respondents
Through: Mr. Shoumik Mazumdar,
Advocate for Respondent no.3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant has filed the appeal for enhancement of
compensation of `90,000/- awarded to him for having suffered
injuries in a motor vehicular accident which occurred on
01.06.2006 at 9:15 am when the Appellant was crossing a road.
2. In the absence of any appeal preferred by the driver/owner or
the insurance company, the finding on negligence has attained
finality.
3. The following contentions are raised by the learned counsel for
the Appellant:
(i) The appellant suffered fractured tibia right leg. He was
under treatment for a long period and underwent two
surgeries. The compensation awarded towards pain and
suffering, attendant charges and loss of income is on the
lower side;
(ii) No notice was issued to the injured/Respondent no. 2
herein to produce the driving license of the driver. Hence,
Respondent no.3 failed to prove that there was willful and
conscious breach of the terms and conditions of the
insurance policy in respect of which the insurance
company was exonerated. It is urged that the Appellant
has not been able to recover the compensation paid from
the insurer of the vehicle although, the vehicle involved
in the accident was duly insured.
4. On the other hand, the learned counsel for Respondent no.3
supports the impugned judgment but states that the
compensation awarded is much more than reasonable and just.
It is stated that the driver was challaned for driving the vehicle
without a valid licence under Section 3/181 of the Motor
Vehicles Act, 1988; the breach of the terms and conditions of
the insurance policy has been sufficiently established. Thus, the
Respondent was rightly exonerated.
5. First of all, I shall take issue of quantum of compensation. It is
proved on record that immediately after the accident, the
Appellant was rushed to Safdarjung Hospital. He was
discharged after POP cast. He followed up treatment with the
Safdarjung Hospital for six months OPD Card (Ex.PW-1/4)
reveals that it was the case of non-union of bone. The
Appellant, therefore, got himself treated from a private
Orthopedic Surgeon in Ram Katori Hospital, District Aligarh.
The Appellant deposed that on account of the injury suffered by
him, he could not attend to work for a period of one year. This
part of the Appellant's testimony was not challenged in the
cross-examination. The Claims Tribunal dealt with the claim of
compensation in paras 14 to 17 of the impugned judgment
which are extracted here under:-
"COMPENSATION TOWARDS MEDICAL
EXPENSES
14. The petitioner has filed the medical documents
Ex. PW1/1 to Ex. PW1/4. As per the documents, he
sustained fracture in his right tibia. His treatment
continued till 26.05.07. He has filed the bills
Ex.PW1/5 to Ex.PW1/16 for Rs.42570/. Looking into
the injuries and the medical bills, I award Rs. 43,000/-
to the petitioner towards medical expenses.
COMPENSATION TOWARDS PAIN AND
SUFFERINGS
15. The petitioner sustained fracture in his right tibia. He
followed up his treatment for long i.e. for about one year.
Considering the injuries he sustained, I award Rs.25,000/-
to the petitioner towards pain and sufferings.
SPECIAL DIET, CONVEYANCE AND ATTENDANT
CHARGES
16. The petitioner after discharge continued his treatment
as an OPD patient till 26.05.07. He was advised special
diet for early recovery. Injuries were such that he might
have taken the help of some attendant at least for one
month. I, award Rs. 10,000/- to the petitioner towards
special diet, conveyance and attendant charges.
COMPENSATION TOWARDS LOSS OF INCOME
17. The petitioner used to do private service and earn Rs.
4000/-p.m. He sustained fracture on his right tibia.
Although he has stated that he did not go to his place of
work for about one year but keeping in view the injuries,
he sustained, he might have taken bed rest at least for
three months. I therefore, award Rs.12,000/-to the
petitioner towards loss of income."
6. Since non-union of the bone was reported by the Safdarjung
Hospital in December, 2006 i.e. almost six months after the
accident, the Appellant did not take the risk and was not happy
with the treatment in Government Hospital; that is why he
contacted Dr. Rakesh Aggarwal, an Orthopedic Surgeon in
Private Hospital. He was operated upon on 24.02.2007 when
nails and screws were put. The screws were removed after three
months of surgery on 09.05.2007 (Ex.PW-1/8). In view of this,
the compensation awarded towards loss of income, pain and
suffering, special diet, conveyance and attendant charges is less.
I hereby award the following compensation:-
Sl. Compensation under various Awarded by this Court
heads (in `)
No.
1. Treatment 43,000/-
2. Loss of Income 48,000/-
3. Pain and Suffering 50,000/-
4. Conveyance 10,000/-
5. Special Diet 10,000/-
6. Attendant charges 10,000/-
Total ` 1,71,000/-
7. The overall compensation is hence, raised from `90,000/- to
`1,71,000/-.
8. Thus, the compensation stands enhanced by `81,000/-. The
appellant shall be entitled to interest @7.5% p.a on enhanced
compensation.
9. As far as liability of insurer is concerned, the Claims Tribunal
erred in holding that there was conscious and willful breach of
the terms and conditions of the insurance policy on the part of
the insured simply on the ground that the driver (Respondent
no. 1) was challaned under Section 3/181 of the Motor Vehicles
Act, 1988. No notice was issued by Respondent no. 3 /insurer
asking Respondent no.2 to produce the driving license of the
driver. The owner(insured) might have come forward to prove
that he had seen the driver's license and taken steps to avoid the
breach of the terms and conditions of the policy. In this
connection, reference may be made to the judgment of this
Court in Oriental Insurance Company Limited v. Rakesh Kumar
and Others, 2012 ACJ 1268.
10. Since the insurer failed to prove the conscious and willful
breach of terms and conditions of the policy, it cannot avoid
liability. The entire compensation of `1,71,000/- shall be paid
along with interest, as awarded by Respondent no.3 insurance
company less the amount, if any, recovered by the Appellant
from the owner of the vehicle.
11. The balance compensation of `81,000/- shall be deposited by
Respondent no. 3 within six weeks.
12. The appeal is disposed of in above terms.
13. Pending applications stand disposed of.
(G.P. MITTAL)
JUDGE
MARCH 05, 2015
RS
