Delhi High Court
Sh. Nihal Chand Gupta & Anr vs National Insurance Company Ltd & ... on 12 February, 2016
Author: R. K. Gauba
$~7 & 19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12th February, 2016
+ MAC.APP. 1116/2012 & CM Nos.17949/2012
& 14007-14008/2014
NATIONAL INSURANCE CO. LTD ..... Appellant
Through Mr. Shoumik Mazumdar, Adv.
for Mr. Pankaj Seth, Adv.
versus
NIHAL CHAND GUPTA & ORS ..... Respondent
Through Mr. S N Parashar, Adv. for R-1 &
2
+ MAC.APP. 812/2014
SH. NIHAL CHAND GUPTA & ANR ..... Appellant
Through Mr. S N Parashar, Adv.
versus
NATIONAL INSURANCE COMPANY LTD & ORS
.... Respondent
Through Mr. Shoumik Mazumdar, Adv.
for Mr. Pankaj Seth, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Both these appeals seek to question the computation of
compensation by the Motor Accident Claims Tribunal (the Tribunal) as
awarded by judgment dated 13.03.2014 on claim petition under Sections
166 and 140 of Motor Vehicles Act (MV Act) registered as Suit
No.64/2010. The claim case was presented by Nihal Chand Gupta and
Mr. Vijay Kumar Gupta (collectively, the claimants) on account of
death in motor vehicular accident of Kamla at about 10 AM on
28.08.2007 near Police picket, Sector-A, Vasant Kunj, New Delhi
involving Maruti car bearing registration No.DL 3C AW 3175 (the
offending vehicle) which concededly was insured against third party risk
with National Insurance Company Ltd. (the insurer).
2. While the insurer brought appeal (MAC.APP.1116/2012) mainly
to question the award of medical expenses in the sum of Rs.30,76,000/-
and the deduction on account of personal and living expenses restricted
to the extent of 1/3rd in calculation of loss of dependency, the claimants
by way of their appeal (MAC.APP.812/2014) seek enhancement on the
non-pecuniary heads of loss of love and affection and loss of consortium
stating that the amounts of Rs.25,000/- and Rs.10,000/- each on that
account are deficient.
3. Having heard both sides, the two appeals are being disposed of
through this common judgment.
4. The Tribunal has noted the following facts in (para 17 of) the
impugned judgment, which are relevant for purposes of considering the
objection to the award of medical expenses:
"17. PW1 has stated that after the accident, Smt. Kamla
Devi was removed to ISIC, Vasant Kunj in unconscious
condition where her MLC Ex.PW1/44 was prepared. He
stated that the condition of the deceased remained critical
throughout her treatment lasting for a period of 13 months.
She never regained consciousness despite extensive
medication. She died on 26.09.08. He stated that about Rs.
30 lakhs were incurred on her medication. The hospital had
given him a consolidated bill of Rs.26,30,676.98 out of
which he had paid Rs. 5,30,000/-. Balance amount
remained outstanding. He placed on record the bills and
the cash receipts Ex.PW1/48 to 64 and stated that in
addition, local purchase of medicines was made and an
expenditure was incurred on other items amounting to
Rs.3,25,436.42 which were paid in cash vide receipts
Ex.PW1/65-236. He stated that his wife was educated,
robust and strong. She was an active member of Rashtriya
Ekta Nirman Samiti. He filed the identity card of deceased
Ex.PWl/237. PW-2 brought the treatment record of the
deceased and stated that she remained admitted from
28.08.07 till her death i.e. 26.09.08. During her treatment
the hospital charged a sum of Rs.26,30,676.98 out of which
Rs. 5,30,000/- were deposited and the remaining amount is
still to be paid by the family of the deceased. R3W1 is the
Manager Accounts of ISIC Centre, Vasant Kunj. He also
deposed on the lines of PW2 and gave the complete break-
up of original payment summary EX.R3W1/1 (colly.). He
stated that in the balance sheet and books of accounts of
the hospital, outstanding payment is reflected. In the instant
case, PW-1 has given an affidavit that on 05.12.11 he has
received a notice of the suit for recovery of Rs.28,56,920.69
alongwith pendelite interest and future interest U/o 37 CPC
in respect of the outstanding dues of Rs.21,00,676.98. He
stated that he undertakes to settle the payment in the
Court."
5. The claimants have shown, by documentary proof, that civil suit
(original side) No.2656/2011 was preferred against them by Indian
Spinal Injuries Centre (ISIC) under order 37 of the Code of Civil
Procedure, 1908 (CPC) pressing for recovery of the outstanding medical
bill. The said civil suit has since been transferred to the Court of
District and Sessions Judge, New Delhi by order dated 04.12.2015 of
Joint Registrar (Judicial) of this Court on account of change of the
pecuniary jurisdiction.
6. The fact remains that the medical treatment of the victim Kamla
Devi on account of injuries suffered on 28.08.2007 for the entire period
of hospitalization till she died as indoor patient on 26.09.2008 was
issued in the sum of Rs.26,30,676.98. It does appear that the claimants
were unable to make the payment beyond Rs.5,30,000/-, the balance
dues of the hospital having remained outstanding. The submission on
behalf of the insurance company essentially is that since the bill has not
been paid in full, it could not have been treated as an expenditure
incurred and, thus, the claim for its reimbursement could not have been
pressed.
7. To say the least, the submission of the insurance company is not
only irresponsible but in very poor taste and, therefore, cannot be
approved of. The responsibility of the insurance company is not only to
reimburse what has been incurred as expenditure but also to take over
responsibility to pay for what may have to be paid as a result of the
injuries suffered on which count the claim arises. It is hoped that the
insurance company will henceforth conduct itself in a more responsive
manner to its statutory obligations.
8. Coming to the contention that the personal and living expenses
should have been deducted more than 1/3rd while calculating the loss of
dependency, again the contention is devoid of substance. There were
two dependents of the deceased who have come forward to seek
compensation. In these circumstances, the approach of the Tribunal
cannot be faulted.
9. It is noted, however, that the Tribunal also awarded Rs.25,000/-
towards pain and suffering. Since the compensation was sought by the
claimants on account of death, the non-pecuniary damages in the nature
of pain and suffering, being personal to the victim, could not have been
added. This amount would have to be deducted from the overall
compensation granted.
10. There is substance in the grievance of the claimants that the
compensation awarded on account of loss of love and affection and loss
of consortium is inadequate. The accident occurred in August, 2007.
Having regard to the approach adopted by the Supreme Court in
similarly placed case reported as Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54, compensation in the sum of Rs.1 lakh each on account
of loss of love and affection and loss of consortium deserves to awarded.
11. Thus, the total compensation would need to be enhanced by net
Rs.1,40,000/-.
12. The compensation payable is, therefore, enhanced to (34,41,000 +
1,40,000) Rs.35,81,000/- (Rupees Thirty Five Lakhs and Eighty One
Thousand only). Needless to add, the interim award granted earlier shall
be adjusted and the compensation shall carry the interest as levied by the
Tribunal.
13. By order dated 16.10.2012 in MAC.APP.No.1116/2012, the
insurance company had been directed to deposit the entire awarded
amount with up-to-date interest out of which 60% was allowed to be
released by order dated 08.01.2014. The balance amount lying in
deposit shall also be released to the claimants in terms of the
aforementioned directions.
14. The insurance company is directed to deposit the balance liability
with the Tribunal within 30 days whereupon the Tribunal shall release
the same to the claimants in terms of the directions given in the order
made above.
15. Statutory deposit, if made, shall be refunded.
16. Trial court record be returned.
FEBRUARY 12, 2016/VLD R.K. GAUBA
(JUDGE)
