Delhi High Court
New India Assurance Co Ltd vs Jitender Kumar & Ors on 11 March, 2016
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th March, 2016
+ MAC.APP. 863/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Adv.
versus
JITENDER KUMAR & ORS ..... Respondents
Through: Mr. S. K. Pandey, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first respondent (the claimant) had suffered grievous injuries
(fracture of Tibbia and Fibula bones of the left leg) in a motor vehicular
accident that occurred at 01:25 PM on 18.06.2009 when the motorcycle
bearing registration no.DL-7SV-5009 (the motorcycle) driven by him was
statedly hit by a JCB crane bearing registration no.HR-63A-7889 (the
offending vehicle) driven in a negligent manner by the second respondent.
The offending vehicle, owned by the third respondent, was admittedly
insured against third party risk with the appellant/insurance company (the
insurer). On a claim petition under Sections 166 & 140 of the Motor
Vehicles Act, 1988 (the MV Act) brought by the claimant before the motor
accident claims tribunal (the tribunal), where it was registered as MACT
no.104/10/2009, the matter was inquired into and on that basis an award of
`2,30,000/- with interest at the rate of nine percent (9%) per annum from the
date of filing of the petition (14.10.2009) till payment was granted in
addition to `25,000/- towards lawyers charges.
2. The tribunal computed the damages as under:-
"Pecuniary damages (Special damages):
a) Medical expenses- Rs. 1,10,000/-
b) Special diet expenses- Rs. 10,000/-
c) Conveyance charges- Rs. 10,000/-
Non-pecuniary damages (General damages)
d) Pain, suffering, mental shock
and trauma - Rs.1,00,000/-
Total Rs.2,30,000/-"
3. The insurance company which has been burdened with the liability to
pay, has questioned the award mainly on the grounds that the medical
expenses having been reimbursed, there was no occasion for the said amount
to be again directed to be included in the compensation and further that the
award on account of pain, suffering, mental shock and trauma in the sum of
`1,00,000/- is on the higher side. The insurance company also submits that
the evidence showed that there was negligence on the part of the claimant
himself as, during the cross-examination, he had admitted that the JCB
machine was stationary on the side of the road. The insurance company is
further aggrieved on account of direction for payment of lawyer's charges.
4. During the course of hearing, learned counsel for the
appellant/insurance company submitted that there is an admission that the
claimant while driving the motorcycle had hit the JCB machine, which was
stationary on the left side of the road, from behind. On being called upon to
show from record as to on what basis it is being submitted that the
motorcycle had hit the other vehicle "from behind", the counsel shifted
stand and stated that she only wanted to say that the JCB machine was
stationary on the left side. But, on being reminded that aside from the said
submission, she had also argued that the motorcycle had hit the JCB
machine "from behind", she regretted having made such argument. Such
irresponsible and factually incorrect submissions cannot be countenanced.
5. At the hearing, the learned counsel for the claimant argued that the
accident had occurred when both the vehicles were moving in as much as
respondents (driver and owner) in their joint written statement had stated
that the collision occurred when the motorcycle had tried to overtake the
JCB machine (offending vehicle). He submitted that he concedes that there
was no occasion for lawyer's charges to be granted and further that non-
pecuniary damages on account of pain & suffering etc. are indeed on the
higher side. On the medical expenses, he submitted that the tribunal had
gone through the evidence and awarded the compensation in the sum of
`1,10,000/- found incurred towards medical expenses on the basis of the
documents duly proved.
6. Having heard both sides, this court finds no substance in the
submission of the insurance company about negligence on the part of the
claimant. The driver and owner of the offending vehicle have admitted in
their pleadings that both the vehicles were in motion. The claimant has
proved through his evidence that the negligence was on the part of the driver
of the offending vehicle. The finding of the tribunal on this subject
affirming the case of the claimant does not call for interference only on the
stray sentence occurring in the cross-examination that JCB machine was
"standing" on the side of the road. It was not clarified by any further
enquiry as to whether JCB machine was stationary at the time of the
collision or before the motorcycle had approached the place of occurrence.
7. Indeed, during his cross-examination, the claimant had conceded that
the medical expenses incurred by him for treatment were taken care of by
his employer. Thus, he did not spend any amount of money on medical
treatment. Therefore, the award of `1,10,000/- on that account is not
justified. In the given facts and circumstances, where the injuries had not
resulted in any disability, general damages in the sum of `1,00,000/- are
found to be on the higher side. The amount is reduced to `50,000/-. Thus,
total compensation payable in the case is worked out at `70,000/-. It is
reduced accordingly.
8. The direction with regard to the lawyer's charges was uncalled for
and, therefore, set aside.
9. By order dated 08.08.2012, the insurance company had been directed
to deposit 75% of the awarded amount with UCO Bank, Delhi High Court
branch. It was directed to be held in FDR for a period of six months to be
renewed periodically. The Registrar General shall now calculate the amount
payable as per award modified above and release the same to the claimant
forthwith, refunding the excess with statutory deposit, if made, to the
insurance company.
10. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 11, 2016
ssc
