Delhi High Court

Oriental Insurance Co. Ltd. vs Basant & Ors on 26 March, 2015

$-14

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                               Decided on: 26th March, 2015

+       MAC.APP. 1033/2012

        ORIENTAL INSURANCE CO. LTD.
                                                              ..... Appellant
                                  Through:   Mr.A.K. Soni, Advocate

                         versus

        BASANT & ORS                                     ..... Respondents
                                  Through:   Mr. S.N. Parashar, Advocate for
                                             Respondent no.1


        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The appeal is for reduction of compensation of

Rs.25,18,246/- 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 30.12.2010.

2. The compensation awarded by the Claims Tribunal is tabulated

hereunder:

Sl. Compensation under various Awarded by Heads the Claims No. Tribunal (in Rs.)

1. Medical Expenses 1,39,246/-

              2.    Future Medical Expenses                50,000/-

              3.    Special Diet                           25,000/-

              4.    Conveyance Charges                     30,000/-

              5.    Attendant Charges                      21,000/-

              6.    Loss of Income                     1,20,000/-

              7.    Loss of Future Income            16,83,000/-

              8.    Pain & Mental Agony                1,50,000/-

              9.    Loss    of    Amenities   and      2,00,000/-
                    Shortening of Life

              10.   Deformity                        1,00,000/-

                    TOTAL                            25,18,246/-

3. Immediately after the accident, Respondent no.1 was removed

to Sanjay Gandhi Memorial Hospital. Respondent no.1 was

found to have suffered compound fracture of left femur and

both bone of left leg. He was given blood. Respondent's

family was not happy with the treatment received at Sanjay

Gandhi Memorial Hospital and so Respondent no.1 was shifted

to Dhruv Surgical Centre being run by Dr. Rajan Atreja(PW-3).

Respondent no.1 was operated upon and was discharged from

Dhruv Surgical Centre after ten days. He remained an outdoor

patient and remained under treatment till July, 2011.

4. On appreciation of evidence, the Claims Tribunal found that the

accident was caused on account of rash and negligent driving of

motorcycle no.DL-8-SAT-2356 driven by Respondent no.2 and

owned by Respondent no.3. The Claims Tribunal proceeded to

award the compensation as has been extracted in para 2 above.

5. Following contentions are raised on behalf of the Appellant

Insurance Company:

(i) The Claims Tribunal took salary of Respondent no.1 to

be Rs.10,000/- per month without any proof of income

and made addition of 50% towards future prospects

without any evidence in this regard;

(ii) There was no evidence of loss of income for twelve

months; the Claims Tribunal was not justified in granting

a compensation of Rs.1,20,000/- towards loss of income

for one year;

(iii) The compensation towards pain and suffering, loss of

amenities and deformity is on the higher side;

(iv) Interest @ 12% per annum granted by the Claims

Tribunal is exorbitant and excessive; and

(v) The award of Rs.21,000/- towards counsel's fee and

Rs.4,000/- towards out of pocket expenses is illegal.

6. On the other hand, Mr. S.N. Parashar, the learned counsel for

Respondent no.1 supports the impugned judgment and submits

that the award of compensation is just and reasonable. It is

urged by him that Respondent no.1 has suffered 55% physical

impairment in relation to his left lower limb on account of

restricted range of motion of hip, knee and ankle joint with

difficulty in activities of daily living. There is another Medical

Certificate prior to the issuance of Medical Certificate dated

02.04.2012 issued by Dr. Baba Saheb Ambedkar Hospital

which assessed the permanent disability to the extent of 68%.

LOSS OF EARNING CAPACITY:

7. In the claim petition, Respondent no.1 has given his income

from the profession of meat sale as Rs.10,000/- per month. He

claimed a compensation of Rs.7,00,000/-, which is extracted

hereunder:

"VIII. The petitioner is entitled to recover the following amount of compensation from the respondents with their joint and vicarious responsibility and liability to pay:

          a)        Medical Expenses                       Rs.2,00,000/-

          b)        Loss of Income                         Rs.60,000/-
          c)        Loss of Health                         Rs.2,00,000/-

          d)        Conveyance Charges                     Rs.20,000/-

          e)        Special Diet                           Rs.20,000/-
          f)        On account of operation to be
                    operated in future for putting steal
                    rod and removal of the same            Rs.1,00,000/-

On account of Mental Pain and Agony Rs.1,00,000/-

_____________ Rs.7,00,000/-"

_______________

8. There is no gainsaying that the Claims Tribunal is competent to

award compensation more than claimed by the victim in a

motor vehicular accident. Although doctor was not examined

by Respondent no.1 to prove the functional disability suffered

by him, however, from the Medical Certificate Ex.PX dated

02.04.2012, it can be inferred that Respondent no.1's earning

capacity on account of restricted range of motion of hip, knee

and ankle joint, will be substantially reduced. The Claims

Tribunal was therefore, justified in granting loss of earning

capacity to the extent of 55% which was disability assessed in

relation to left lower limb. Respondent no.1 filed an Affidavit

of his brother Puran Mal who testified that Respondent no.1 was

working as a helper at his shop and was being paid Rs.10,000/-

per month. Respondent no.1 has studied upto higher secondary

(Ex.PW1/16). Respondent no.1 did not produce any evidence

with regard to his total income from the shop. Thus, the Claims

Tribunal ought to have awarded compensation to Respondent

no.1 on the basis of minimum wages of a matriculate which was

Rs.6,448/- on the date of the accident.

9. As far as addition towards future prospects is concerned, the

question was dealt with by a three Judge Bench decision of the

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

Anr., (2013) 9 SCC 65 and it was held that addition towards

future prospects is to be made only when there is specific

evidence in this regard. The question of grant of future

prospects was dealt with by this Court at great length in HDFC

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

MAC APP No. 189/ 2014 decided on 12.01.2015, wherein it

was held that the three Judge Bench decision in Reshma Kumari

& Ors.(supra) shall be taken as a binding precedent. Thus, in

the absence of any evidence of good future prospects, no

addition towards future prospects ought to have been made by

the Claims Tribunal. The loss of earning capacity therefore,

comes to Rs.7,23,465/-(Rs.6,448/- x 12 x 17 x 55%).

LOSS OF INCOME:

10. No evidence was led by Respondent no.1 to show the period

during which he could not attend his work. The documents

placed on record, however, reveal that he received treatment till

July, 2011. Considering the nature of injuries suffered and the

permanent disability sustained by Respondent no.1, I will take

the loss of income to the extent of seven months which comes

to Rs.45,136/-(Rs.6,448/- x 7).

11. Considering the treatment received by Respondent no.1 in

Sanjay Gandhi Memorial Hospital and thereafter, in Dhruv

Surgical Centre, the surgeries underwent and the nature of

injuries suffered and the fact that Respondent no.1 is crippled

for his life and he will face difficulty in running, walking,

squatting and carrying out his day to day activities,

compensation of Rs.1,50,000/- towards pain and suffering

cannot be said to be excessive or exorbitant.

LOSS OF AMENITIES, DEFORMITY & LOSS OF MARRIAGE PROSPECTS

12. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, it was

laid down by the Supreme Court that whenever any

compensation for 50% or more loss of earning capacity is

granted, the compensation towards loss of amenities and

enjoyment in life should be nominal otherwise it will amount to

duplication of the award of the compensation. The

compensation of Rs.2,00,000/- awarded towards loss of

amenities is therefore, liable to be reduced to Rs.50,000/-. At

the same time, I tend to award a sum of Rs.1,50,000/- towards

deformity and loss of marriage prospects against the sum of

Rs.1,00,000/- as awarded by the Claims Tribunal.

13. The overall compensation is recomputed hereunder:


Sl.      Compensation under various        Awarded by Awarded by
                  Heads                    the Claims this Court
No.                                        Tribunal (in (in Rs.)
                                           Rs.)
1.     Medical Expenses                         1,39,246/-             1,39,246/-

2.     Future Medical Expenses                    50,000/-               50,000/-

3.     Special Diet                               25,000/-               25,000/-

4.     Conveyance Charges                         30,000/-               30,000/-

5.     Attendant Charges                          21,000/-               21,000/-

6.     Loss of Income                           1,20,000/-              45,136/-

7.     Loss of Future Income                   16,83,000/-             7,23,465/-

8.     Pain & Mental Agony                      1,50,000/-             1,50,000/-

9.     Loss    of    Amenities      and         2,00,000/-              50,000/-
       Shortening of Life





 10.    Deformity & Loss of Marriage          1,00,000/-        1,50,000/-
       Prospects

       TOTAL                                 25,18,246/-        13,83,847/-

14. The compensation is therefore, reduced from Rs.25,18,246/- to

Rs.13,83,847/-.

15. The Claims Tribunal awarded interest @ 12% per annum. This

accident occurred on 30.12.2010. Rate of interest had

considerably fallen since then hence, award of interest @ 12%

per annum is on the higher side. The same is reduced to 8% per

annum from the date of filing of the claim petition till the

deposit of the award amount.

COUNSEL' FEE:

16. As far as award of a sum of Rs.21,000/- towards counsel's fee and Rs.4,000/- towards out of pocket expenses is concerned, this Court in ICICI Lombard General Insurance Co. Ltd. v. Kanti Devi and Ors. MAC APP No. 645/ 2012 decided on 30.07.2012 had gone into the question of granting counsel's fee and concluded in Para 32 as under:

"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.''

17. It was thus, concluded that instead of awarding counsel's fee,

the claim petition ought to be allowed with costs and counsel's

fee be paid only in accordance with Rules 1, 1A and 9 of

Chapter 16, Vol. I of the Delhi High Court Rules and Orders.

Thus, award of compensation of Rs.21,000/- towards counsel's

fee and Rs.4,000/- towards out of pocket expenses was not

permissible.

18. By an order dated 14.09.2012, only 30% of the award amount

along with proportionate interest was ordered to be deposited

with UCO Bank, Delhi High Court Branch, New Delhi. The

amount of compensation awarded along with interest @ 8% per

annum shall be recalculated and the balance amount along with