New India Assurance Co Ltd vs Pawan And Ors
2016 Latest Caselaw 1504 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                     Date of Decision: 25th February, 2016
+                          MAC.APP. 828/2012
       NEW INDIA ASSURANCE CO LTD            ..... Appellant
                    Through: Mr. Sameer Nandwani, Adv.
                    versus
    PAWAN AND ORS                          ..... Respondents
                  Through: Mr. Sandeep Kundu, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                           JUDGMENT

R.K.GAUBA, J (ORAL):

1. The first respondent herein suffered injuries in a motor vehicular accident that occurred at 10:15 AM on 29.06.2008 involving motorcycle bearing registration no.DL-8SAN-4277 (motorcycle) driven by him on one hand and truck bearing registration o.HR-38N-3009 (the offending vehicle) on the other. The collision took place near Petrol Pump at Narela Road, statedly on account of rash/negligent driving of the truck by second respondent (the driver), it being concededly owned by third party respondent (the owners/insured) and admittedly covered by an insurance policy taken out against third party risk for the period in question.

2. The claim petition presented by the first respondent (the claimant) on 13.04.2009, registered as MACT case no.164/2011 (2009) was decided by the motor accident claim tribunal (the tribunal) by judgment dated 18.05.2012 awarding compensation in the sum of `22,81,363/- with interest at the rate of nine percent (9%) per annum from the date of filing petition till realization, with direction to the appellant company (insurer) to pay the

said amount in terms of its liability under the insurance policy, rejecting its contention about breach of the terms and conditions thereof based on the plea that the vehicle was not covered by a fitness certificate. The tribunal also awarded `55,000/- as out of pocket expenses towards lawyer's charges.

3. The insurance company brought his appeal to question the computation of compensation mainly on the ground that the functional disability has been wrongly assumed to be hundred percent (100%) as against the medical opinion indicating it to be to the extent of ninety percent (90%). It also raises grievances against the lawyer's charges having been granted.

4. Though in the appeal, several grounds were taken at the hearing, the insurance company presses it only with reference to the assessment of disability and the grievances respecting lawyer's charges.

5. The tribunal assessed it to be a case of hundred percent (100%) functional disability taking note of the fact that the permanent disability suffered, as certified by the disability certificate (Ex.PW3/A) shows that all four limbs of the claimant have been rendered dysfunctional. Given the fact that the claimant was working as a driver, the assessment of functional disability to the extent of hundred (100%) cannot be questioned. Thus, the plea against this conclusion is rejected.

6. There is, however, substance in the submission of the insurance company that there was no occasion for out of pocket expenses towards lawyer's charges to be granted. The direction to such effect deserves to be set aside.

7. Thus, the appeal is partly allowed. The direction for payment of `55,000/- towards monthly fee and out of pocket expenses of the lawyer charges are set aside.

8. The contentions of the insurance company having been repelled, the appeal is liable to be dismissed.

9. By order dated 31.07.2012, the insurance company had been directed to deposit the awarded amount with up-to-date interest within the specified period. By the said very order, fifty percent (50%) of the awarded amount was allowed to be released to the claimant. By subsequent order dated 27.11.2012, another sum of `10,00,000/- was allowed to be released to the claimant with direction that he would be entitled to draw quarterly interest on the balance that had been retained.

10. On 29.08.2014, the matter was taken up on an office notice put up by the registry, inter-alia, stating that the insurance company had deposited a total sum of `31,13,004/- pursuant to the order dated 26.05.2014. Upon inquiry, it was found that the said deposited amount included `55,000/- payable towards counsel fee and out of the pocket expenses. The said portion was allowed to be refunded, by order dated 19.09.2014.

11. During the hearing of the matter on the said date (19.09.2014), it was revealed that a dispute has arisen within the family of the claimant, between father of the claimant on one side and his wife on the other. Both parties, however, confirmed that the claimant is presently living with his wife and her family. Taking note of these submissions and the fact that two children of the claimant also need financial support, the order dated 31.07.2012 was

modified. It was directed that sum of `75,000/- shall be released to the claimant from the fixed deposit account and the balance shall be kept in fixed deposit with UCO Bank Delhi High Court Branch, New Delhi from which the claimant would be entitled to receive monthly accumulated interest. The direction about the release of `10,00,000/- earlier given was vacated. The learned single judge then in seisin of the matter, permitted the wife (Kavita) to withdraw an amount of `75,000/- and draw monthly accumulated interest on the fixed deposit from UCO Bank Delhi High Court branch till further orders. By order dated 30.09.2015, the order dated 31.07.2012 was further modified to the effect that amount kept in fixed deposit receipt shall be for a period of one year with auto renewal facility every year.

12. Today, when the matter was taken up for final hearing and disposal, Raj Kumar, father of the claimant and the counsel representing the wife (Kavita) are present. Raj Kumar raises grievances that since he had spent a substantial amount of money for treatment of the claimant, it is not proper that the wife has been allowed to receive the amount of compensation. He, however, fairly conceded that the claimant rendered totally immobile, paraplegic and dependant has been under the care and custody of the wife (Kavita). The compensation has been awarded to and in the name of the claimant. In these proceedings, the issue as to from where money was arranged for the treatment to be undertaken cannot be raised. The fact remains that the claimant is being taken care of by the wife of her own. Therefore, there is no need for any view different from the one taken in the order dated 19.09.2014 to be adopted.

13. Having regard to the fact that curtain is being drawn on the proceedings arising out of this appeal, there is no further justification for retention of the corpus of the balance compensation awarded to be retained in a bank located at the High Court premises. The claimant, at the time of filing of the petition, was living at Narela, Delhi. It has been submitted by the learned counsel representing his (claimant's) wife that she has shifted the claimant with her to her residence in Bakhtawarpur near Alipur, Delhi. In these facts and circumstances, it is advisable that liberty be granted to the claimant, acting through his next friend/guardian at-litem, to have the balance corpus of compensation money retained in fixed deposit transferred from UCO bank Delhi High Court branch, New Delhi to a nationalized bank of his choice, near the place of his residence.

14. For such purpose, application would need to be made to the tribunal which shall hold a proper inquiry/verification before allowing such transfer of the fixed deposit account.

15. It is made clear that no amount from the FDR of the balance corpus of the compensation shall be permitted, unless the tribunal is satisfied that it is absolutely necessary for purpose of the treatment or care of the claimant. The right to draw the monthly interest, for purpose of the claimant, however, shall continue to be available.

16. The statutory deposit, if made, shall be refunded.

17. The appeal is disposed of in above terms.

R.K. GAUBA (JUDGE) FEBRUARY 25, 2016/ssc