Delhi High Court
Shama Parveen vs Shri Naresh Kumar & Ors. on 24 May, 2016
$~22 & 23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th May, 2016
+ MAC.APP.910/2013
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.
......Appellant
Through: Mr. Pankaj Seth, Adv.
versus
SHAMA PARVEEN & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Adv.
AND
+ MAC.APP.88/2014
SHAMA PARVEEN ...... Appellant
Through: Mr. S.N. Parashar, Adv.
Versus
SHRI NARESH KUMAR & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Shama Parveen (appellant in MAC Appeal No. 88/2014), aged about
26 years, was travelling in three wheeler scooter (TSR) with certain other
passengers when on account of negligent driving an accident occurred at
about 3 p.m. resulting in she sustaining injuries. It may be mentioned here
that she (claimant) had the medical condition of stiffness with deformity in
cervical spine since the age of 8. In the motor vehicular accident, which is
the subject matter of the present proceedings, she suffered injuries in the
right hand resulting in post traumatic amputation of the right index and
middle fingers at PIP joint level and right ring finger at DIP joint level. A
board of doctors of Deen Dayal Upadhyay Hospital eventually assessed
(Ex.PW2/1) her to be a case of permanent disability, the extent thereof
having been found to be 19% in relation to the right upper limb.
2. On her claim petition (Case No. 57/2011), instituted on 28.04.2006,
on the basis of accident information report (AIR) submitted by the
investigating police sharing the evidence gathered during the investigation
of the corresponding criminal case registered by it, the tribunal held inquiry
and, by judgment dated 02.05.2013 (which also governed another similarly
placed case) upheld the case of injuries having been sustained due to
negligent driving of the TSR. The said finding has since attained finality as
it was not challenged any further. The tribunal, by the said judgment,
awarded compensation in the sum of ` 7,57,812/- with interest @ 7.5% per
annum in her favour, having calculated it thus:-
Sr. No. Compensation under various heads Awarded by
this Court
1. Loss of Earning Capacity (Rs.6448 Rs.5,57,107/-
p. x 12 x 18 x 40/100)
2. Compensation towards medical Rs. 27,107/-
expenses
3. Pain and suffering Rs. 25,000/-
4. Special diet and conveyance Rs.10,000/-
5. Compensation towards loss income Rs.38,688/-
during treatment period
6. Loss of matrimonial prospect Rs.50,000/-
7. Compensation towards Rs.25,000/-
disfigurement
8. Compensation towards loss of Rs. 25,000/-
amenities of life
Total Rs.7,57,812/-
3. The insurance company (appellant in MAC Appeal No. 910/2013),
having been fastened with the liability, it having admittedly issued the third
party insurance policy in respect of the TSR for the period in question,
challenges the finding recorded by the tribunal holding the claimant to be
disabled to the extent of 40% for calculating the loss of earning capacity in
future. Per contra, the claimant, by her appeal (MAC Appeal No. 88/2014),
submits that the awards under the non-pecuniary heads of damages of pain
& suffering, loss of marriage prospects and compensation towards
disfigurement, as indeed the rate of interest, are on the lower side.
4. The tribunal assessed the disability to the extent of 40 % of working
capacity in the face of medical opinion to the effect that the disability on
account of amputation of the three fingers of the right hand was to the extent
of 19% in relation to the upper right limb. This assessment is based on
unguided estimates. The proper course instead would have been to seek
guidance from the first schedule of the Employees' Compensation Act,
1923. The entries at serial No. 27, 32 and 35 of the second part of the said
schedule apply. Thus calculated, the percentage of loss of earning capacity
in the case is found to be 30%.
5. The tribunal had notionally assessed the income of the claimant at `
6,448/- per month, it being the rate of minimum wages prevalent at that
point of time and applied the multiplier of 18. Since the claimant was 26
years old, the multiplier of 17 would be more appropriate. Therefore, the
loss of future income on account of disability is calculated as (6448 x 12 x
17 x 30 ÷ 100) ` 3,94,618/-.
6. Given the nature of injuries suffered, and their effect on the future of
the claimant, awards under the heads of pain & suffering, loss of marriage
prospects and compensation towards disfigurement are increased to `
50,000/-, ` 1,00,000/- and ` 50,000/- respectively. Thus, the total
compensation in the case comes to (3,94,618 + 27,017 + 50,000 + 10,000 +
38,688 + 1,00,000 + 50,000 + 25,000) ` 6,95,323/- rounded off to `
6,96,000/-.
7. Following the consistent view taken by this Court [see judgment dated
22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta
Devi & Ors.], the rate of interest is increased to 9% per annum from the date
of filing of the petition till realization.
8. The award is modified accordingly.
9. By order dated 09.10.2013 (in MAC Appeal No. 910/2013), the
insurance company had been directed to deposit the entire awarded amount
with upto date interest with the Registrar General and out of the same 70%
was released. The balance kept in fixed deposit receipt with UCO Bank,
Delhi High Court Branch for a period of six months to be renewed
periodically.
10. The Registrar General is directed to calculate the amount payable to
the claimants in terms of the modified award and release the same from out
of the deposit thus held. If excess has been deposited or released, the same
shall be refunded and if there is any short fall, the same shall be deposited
by the insurance company with the Registrar General within 30 days of
today, making it available to be released to the claimants.
11. The learned counsel for the insurance company submits that though
defence had been taken with respect to the absence of the driving license and
consequent breach of terms and conditions of the insurance policy, in
support of which evidence was also led by examining Ravi Kumar, Manager
of the insurance company (R3W1), the tribunal did not address the said
issue. The insurance company pleads that it was entitled to avoid the
liability and having deposited the compensation substantially under the
interim order, part of which has also been released to the third party
(claimant), it may be granted recovery rights.
12. It is noted that the driver and owner of the offending TSR (second and
third respondents in MAC Appeal No. 910/2013) had not put in any contest
before the tribunal inspite of notice and opportunity. The said parties (driver
and owner) were called by notices even on the appeal and yet they have
chosen to suffer the proceedings ex-parte.
13. R3W1 had testified before the tribunal on the basis of his affidavit
(Ex.R3W1/A), inter alia, proving copy of insurance policy (Ex.R3W1/4)
and also deposing that a notice under Order 12 Rule 8 of the Code of Civil
Procedure, 1908 (CPC) had been issued to the insured (third respondent)
vide Ex. R3W1/1, which was sent as per postal receipt (Ex.R3W1/2) calling
upon the said party to produce the copy of the driving license of the TSR
driver (second respondent). He also testified that inspite of service of
notice, no driving license was produced by the noticee/insured. This
evidence was not contested by the driver or owner (second and third
respondents in MAC Appeal No. 910/2013). No evidence was led to prove
that the driver was holding a valid or effective driving license at the relevant
point of time.
14. In above facts and circumstances, the prayer of the insurance
company for breach of terms and conditions of the insurance policy is
upheld. It is granted recovery rights against the owner and driver of the
offending vehicle for which it can initiate appropriate proceedings before the
tribunal.
15. The statutory deposit, if made, shall be refunded after it is confirmed
that the award has been satisfied.
16. Both appeals are disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 24, 2016
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