Delhi High Court
Nanak Chand & Anr vs Deepak Jain & Ors on 10 March, 2016
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 10th March, 2016
+ MAC.APP. 489/2010
NANAK CHAND & ANR ..... Appellants
Through: None.
versus
DEEPAK JAIN & ORS ..... Respondents
Through: Mr. Rajat Brar, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Both the appellants had suffered injuries in a motor vehicular accident
that had occurred on 05.04.2006 in the area of police station Tuglak Road
near Khan Market, New Delhi, when the scooter bearing registration no.DL-
4SAD-9364 (the scooter) on which they were travelling, was hit by a Honda
city car bearing registration no.HR-26AA-4689 (the car), the latter
admittedly insured against third party risk with third respondent (insurer).
The scooter was driven by the second appellant with the first appellant
(father of the former) travelling on the pillion. The car was statedly driven
by the first respondent and owned by the second respondent. It was alleged
that the accident had occurred due to rash/negligent driving of the car by the
first respondent.
2. The appellants brought two separate claim petitions under Sections
166 & 140 of the Motor Vehicles Act, 1988 (the MV Act) which were
registered as suit no.632/2006 & 625/2006 respectively. Both the petitions
were decided by the motor accident claims tribunal (the tribunal) by a
common judgment dated 11.12.2009. The tribunal awarded compensation
in the sum of `1,01,799/- to the first appellant and in the sum of `23,004/- to
the second appellant. In both the cases, interest at the rate of seven percent
(7%) from the date of filing of the petition till realization of the petition
(12.09.2006) was also granted.
3. This appeal has been filed by the two claimants jointly against the
award on their respective petitions registered as separate claim cases.
Strictly speaking, this was not proper, as separate appeals were required to
be filed. But, having regard to the fact that appeal was entertained in 2010
and has remained on board ever since, it will not be proper to now ask for it
to be split up into two separate appeals. The registry must take care in
future.
4. It is noticed that appeal having been filed, the appellants have not
shown due diligence to prosecute it effectively. Adjournment was taken by
the counsel on their behalf on the last date through proxy. It was noted in
the order dated 16.12.2015 that neither the counsel nor the appellant have
been appearing for the last several dates of hearing. No adverse order was
passed but the appellants were directed to remain present today. Neither the
appellants nor their counsel have appeared even today inspite of the said
order.
5. There is no reason to defer the hearing yet again or to dismiss it in
default only to await an application for restoration coming up on its close
heels. The case has to attain finality.
6. Having heard the counsel for the insurer and having gone through the
grounds of appeal, this court finds substance only with regard to the
grievance respecting the rate of interest levied.
7. In the case of first appellant, the tribunal considered the evidence
adduced and computed compensation in the following manner:-
"Petitioner in his evidence, deposed that petitioner remained
admitted in Dr. RML hospital and discharged on 23.4.2006 and
proved discharge report as Ex.PW4/4 and deposed that he was
treated there for wounds and fracture of left leg. He has also brought
on record various prescription slips which are Ex.PW4/5 (in nine
pages) which shows that he had continued to take treatment on
number of visits. He has also placed on record medical bills as
Ex.PW4/6 (in 26 pages). He has also placed on record fare/petrol
bills as Ex.PWl/7 (in 17 pages). He is entitled firstly on account of
pain, shock and sufferings . Keeping in view more than 15 days
confinement in the hospital due to fracture of leg and other wounds. I
allow him Rs.20,000/- for pain and sufferings. I allow amount of bills
Ex.PW4/6 which comes to Rs. 16799/-.I also award Rs.5000/- on
account of conveyance, special diet and physio care. Petitioner
deposed that he was having construction company and his annual
income was Rs.l,30,000/-per annum though he has produced income
tax return for the year 2005- 2006. He has claimed expenses for one
year for treatment. There is no evidence of definite loss suffered by
him. However, some loss on account that he has not been able to
attend his business can be assumed. Keeping in view that he was
attending OPD and such injuries generally take time to recover, loss
of business can be assumed. I allow him sum of Rs.60,000/- lor loss of
business.
Keeping in view above findings, petitioner is entitled for the
following amount as compensation;
a On account of medical bills : Rs.16,799/-
b On account of pain and suffering : Rs.20,000/-
c On account of lOwSS of business : Rs.60,000/-
b On account of conveyance
special diet and physio care : Rs. 5,000/-
__________
Total : Rs.1,01,799/-
Petitioner is also entitled for the interest @ 7% per annum from the
date of petition till realization."
8. The tribunal has taken note of the income tax (ITR) and the evidence
led to the effect that his income was `1,30,000/- per annum for the year
2005-2006. No evidence was led to show that the said appellant was unable
to work for gain for a period of one year due to the injuries. In these
circumstances, the tribunal made a fair assessment and granted `60,000/-
towards loss of income. There is no evidence to show that the said claimant
had suffered permanent disability so as to the granted any compensation
towards the loss of future income. The medical bills as produced were
accepted in entirety and the compensation towards medical expenses granted
accordingly. The award under non-pecuniary heads of damages in the
given facts and circumstances is also found to be just and proper.
9. In the case of the second appellant, the tribunal considered evidence
and computed compensation as under:-
"Petitioner Mam Raj also tendered his affidavit and examined
himself as PW1. His evidence shows that he has brought on record
various papers of treatment after the accident and he was admitted in
Dr. RML hospital from 5.6.2006 and discharged on same day. He
suffered injuries on same leg where he earlier suffered injuries and he
was operated in AIIMS and therefore, he again took treatment from
there though he claimed that he had spent Rs.1,00,000/- for treatment
but he has not brought any document in support of that. Though, he
has placed on record, treatment papers. Keeping in view his long
treatment due to injuries suffered in accident, he is allowed
Rs.20,000/- for pain, shock and sufferings. He has proved medical
bills as Ex.PW1/6 (Colly) amounting to Rs.3004/-. I award him
Rs.3004/- on account of medical bills. Total compensation comes to
Rs.23004/- alongwith interest @ 7% per annum from the date of filing
of petition till realization.
10. In the opinion of this court, the tribunal has made an appropriate
assessment of the compensation awardable on the evidence adduced. The
reasoning set out and the conclusions reached as above cannot be faulted.
11. Whilst there is no case made out for compensation to be enhanced,
following the consistent view taken by this court, rate of interest is increased
to nine percent per annum from the date of filing of the petition till
realization (see judgment dated 22.02.2016 in MAC.APP. 165/2011
Oriental Insurance Co Ltd v. Sangeeta Devi & Ors.).
12. With above modification in the two awards, the appeal is disposed of.
13. The insurance company is directed to deposit the amount payable in
terms of the increase in the interest with the tribunal within 30 days of this
judgment whereupon the same shall be released to the respective claimant.
14. The statutory deposit, if made, shall be refunded.
15. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 10, 2016
ssc
