Delhi High Court
Iffco Tokio General Ins. Co. Ltd. vs Samridh Magan & Ors on 2 February, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 2nd February, 2016
+ MAC.APP. 251/2010
IFFCO TOKIO GENERAL INS. CO. LTD. ..... Appellant
Through: Ms. Shantha Devi Raman Adv.
versus
SAMRIDH MAGAN & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. A claim petition under Section 166 of Motor Vehicles Act, 1988
(MV Act) was filed by his father/next friend on 5.2.2005 for
compensation for injuries suffered in a motor vehicular accident that
occurred on 28.9.2004 at about 2.45 p.m. involving collision between
two wheeler scooter No. DL 5SN 4277 (the scooter) driven by his
mother and truck bearing registration No. HR 38 3754 (the truck) driven
by one Bir Singh. The said Bir Singh was impleaded as the first
respondent on the allegations that he was the principal tort-feasor. The
truck was owned by M/s Ahluwalia Contracts India Ltd. which was
impleaded as second respondent, it being vicariously liable. The truck
was admittedly insured with the appellant insurance company which
was impleaded as third respondent.
2. The tribunal, after inquiry, by judgment dated 9.3.2010, awarded
compensation in the sum of ` 8,53,577/- with interest @ 7.5 % per
annum from the date of filing of the petition till realization. Noticeably,
it found that the claimant was 10 years old on the date of accident and
due to grievous injuries suffered he has been rendered disabled to the
extent of 60% in relation to earning capacity.
3. The insurance company whilst presenting this appeal under
Section 166 of the MV Act, submitted on 21.4.2010 that though the
tribunal had noted at one stage in the impugned judgment that certain
amount on account of medical expenses had been reimbursed under the
medical insurance policy, the said money already received was not
deducted when the award was passed. Pursuant to the liberty granted,
by the said order, the appellant insurance company moved an
application under Section 151 and 152 of the Code of Civil Procedure,
1908 (CPC) before the tribunal seeking correction. The said application
was, however, dismissed by order dated 1.5.2010.
4. The order dated 01-05-2010 whereby the request of the insurance
company for correction in the above nature was repelled by the tribunal
is extracted in application moved under Section 151 CPC read with
Order 41 Rule 5 CPC for stay of the execution and may be quoted in
extenso:-
File put up today with an application filed by insurance
company under Section 152 CPC for correction of award
dated 9.3.2010 by pointing out that in Para 15 and 16 of the
award at Page 9 it has been mentioned that petitioner has
proved the bill as Ex.PW2/12 which is of the gross amount of
` 2,53,594/- out of which hospital gave discount of ` 25,651/-
and with respect to the balance amount the father of the
injured paid ` 82,500/- from family health plan insurance and
the net bill of ` 145,443/- was paid by the father of the
injured. The other medical bills of the amount of ` 35,134/-
were also proved on record. This court had allowed the
medical charges for the amount of ` 2,63,077/- by adding the
amount of ` 2,27,943/- plus 35,134/-. It has been submitted
that amount of ` 1,45,443/- which was actually paid by the
father alongwith amount of ` 35,134/- totaling ` 1,80,577/-
should have been awarded to the petitioner and awarding of `
2,63,077/-is a mathematical mistake. Therefore, Para 16 has
been asked to be amended accordingly alongwith necessary
correction made in Para 26 on Page 13 and in Para 28 where
the total compensation has been calculated. The amount
awarded to the petitioner on account of medical charges as
mentioned in Para 16 of the award does not need any
interference. The insurance company cannot be given benefit
of the amount of ` 82,500/- received by the father of the
injured from family health insurance plan. Accordingly this
amount of ` 82,500/- alongwith ` 1,45,443/- actually paid by
the father of the injured comes to ` 2,27,943/- which
alongwith the amount of ` 35,134/-incurred on account of
medical bills makes the amount of ` 2,63,077/- which has
been awarded to the petitioner. There is no mathematical
mistake or any other mistake in calculation which needs
correction. Application is dismissed. File be consigned to
record room."
5. The learned counsel for the appellant submitted that the impugned
award needs to be corrected to the extent thereby medical expenses in
the sum of ` 2,63,077/-were awarded and that the learned tribunal was
further in error by granting ` 50,000/- as damages for the leave of
absence taken by the parents during the treatment of the claimant, on the
ground that there was no corresponding loss of salary.
6. Inspite of due notice, the respondents have not been appearing
over the last several dates of hearing. The appeal was filed in 2010 and
there was no reason why it should be deferred yet again.
7. Having heard the learned counsel for the appellant (insurance
company), this Court finds substance in the appeal to the extent the
deduction of ` 82,500/-, already reimbursed to the father of the claimant
under the health insurance plans, was not allowed. Since the amount of
` 82,500/- was not incurred by the claimant or his family, the same
cannot be claimed yet again under the cover of compensation. The said
amount will have to be deducted.
8. But there is no merit in the contention with regard to the salary for
the period of leave of absence of the parents. The father of the claimant
was working as Manager in National Dairy Development Board while
the mother was working as a teacher in DAV Public School. The leave
is a privilege of an employee on account of services rendered. The
leave account is a valuable asset and it is available for personal needs as
and when they arise. The fact that the parents were constrained to avail
the leave of absence is for the reasons of the injuries suffered and, thus,
the erosion of leave account needs to be suitably compensated.
Therefore, the objection to this effect must be repelled.
9. No other ground was pressed.
10. In the result, the appeal is partly allowed. The amount of `
82,500/- is deducted and, therefore, the claimant is held entitled to
compensation of ` 7,71,077/-, rounded off to ` 7,72,000/-. It shall carry
interest at the rate determined by the tribunal in the impugned judgment.
Needless to add, the claimant will have to refund the excess amount in
terms of these directions.
11. The statutory amount, if deposited, shall be refunded.
12. The appeal is disposed of in the above terms.
13. Lower court record be returned.
R.K. GAUBA
(JUDGE)
FEBRUARY 02, 2016/nk
