Delhi High Court
Baby Mahima Taneja vs National Insurance Co. Ltd. on 26 May, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 26.05.2016
+ MAC.APP. 421/2007
BABY MAHIMA TANEJA ..... Appellant
Through: Mr. Vipul Srivastav and Mr. R. Vats,
Advocates
versus
NATIONAL INSURANCE CO. LTD. ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appellant, then aged 7 years, was travelling with other members
of her family on a motor cycle on 13.05.2005 when there was a collision
involving a motor vehicle described as tempo bearing registration no.DL-
1LE-3439 (offending vehicle), admittedly insured against third party risk for
the period in question with the second respondent herein (insurer). Accident
claim cases, including on behalf of the appellant (suit no.72/2006), were
filed which were clubbed and subjected to inquiry leading to judgment dated
27.02.2007 of the Motor Accident Claims Tribunal (tribunal), upholding the
case that the accident had occurred resulting in injuries due to negligent
driving of the offending vehicle.
2. In the case of the appellant, the tribunal awarded compensation in the
sum of ₹3,96,563/- with interest at the rate of 6% p.a. from the date of
institution of the case (which is 28.11.2005) till realization. The said
amount was inclusive of ₹1,36,563/- towards medical expenses, ₹1 Lakh
towards future medical expenses, ₹50,000/- towards pain and suffering,
₹20,000/- towards special diet, ₹10,000/- towards conveyance expenses,
₹10,000/- towards loss of amenities during the period of recuperation and
₹50,000/- as lump-sum compensation towards disability besides ₹20,000/-
towards loss of marriage prospects.
3. The claimant has come up with this appeal, inter alia, submitting that
the award towards medical expenses, as granted by the tribunal, was
inadequate. The claimant also seeks enhancement of the award towards loss
of amenities pointing out that the disability suffered by her is permanent in
nature.
4. During the pendency of the appeal, it was submitted on behalf of the
appellant that the entire medical expenses could not be proved before the
tribunal and that post the decision on the claim petition by the tribunal,
further expenditure had been incurred. Certain bills and receipts were
submitted on record and the insurance company was called upon to verify.
By order dated 03.12.2015, the insurance company was directed to make
further payment of ₹1,73,445/- towards medical expenses subsequently
incurred. It is fairly conceded by the counsel for the claimant / appellant
that the insurer has complied with the said direction and the amount of
₹1,73,445/- towards subsequent medical expenditure has since been paid /
received.
5. The appeal is pressed for enhancement of the award on account of
future medical expenses increase in the award under the head of loss of
amenities and disability, and compensation for discomfort of parents
besides the rate of interest.
6. On the request of the appellant, she was allowed to lead further
evidence, availing which she has examined herself as AW-1, also examining
Dr. R.S. Vashishta (AW-2). The evidence of both the said witnesses
collectively shows that as a result of the injuries suffered, the right foot and
ankle of the claimant has become severely deformed, crooked and short.
Though she has undergone a number of reconstructive surgeries for repair of
the said defects, the deformity has been resurfacing due to growth by age.
AW-2 has advised two further surgical procedures for de-bulking of the flap
and lengthening of the hind foot. It appears, medical advice had been
received in 2014 for surgical procedures but the same could not availed by
the appellant since she was pre-occupied with her end of school
examination. AW-2 has now given a fresh advice and assessment for the
expenditure required in the sum of ₹3,50,000/- to ₹4,00,000/-, besides which
there would be need for further post-operative medical expenditure in the
range of ₹30,000/- to ₹40,000/- which procedures are expected to bring
normalcy not more than 70- 80%.
7. It is noted that the tribunal had included in the award ₹1 Lakh towards
future medical expenses. Having regard to the evidence of AW-2, an
amount of ₹3,50,000/- is added towards future medical expenses.
8. Reliance is placed by the claimant on Master Mallikarjun Vs.
Divisional Manager, the National Insurance Co. Ltd., & Anr., (2014) 14
SCC 396 and Kumari Kiran Vs. Sajjan Singh & Ors. (2015) 1 SCC 539.
This court had the occasion to deal with another similarly placed case -
MACA 345/2011, National Insurance Company Ltd. Vs. Baby Heena &
Ors., decided on 14.03.2016. Having regard to the view taken in the
aforementioned cases, the permanent disability of the claimant having been
assessed to the extent of 20%, an amount of ₹3 Lakh deserve to be awarded
on account of disability; this, in addition to the actual expenditure of
treatment and besides the compensation for discomfort, inconvenience and
loss of earnings to the parents during the period of treatment.
9. Following the view taken in the aforementioned cases, compensation
on account of disability is increased from ₹50,000/- as awarded by the
tribunal to ₹3 Lakh and an amount of ₹25,000/- is added as compensation
for discomfort, inconvenience and loss of earnings to the parents during the
period of treatment.
10. Having regard to the nature of injuries and their permanent effect on
the quality of life of the claimant, loss of amenities of life is to be taken care
of not only for the period of recuperation but also for the entire remaining
life. In these circumstances, the award under the said head is increased to
₹50,000/-.
11. In the result, the compensation stands increased by (₹3,50,000/- +
₹ 2,50,000/- + ₹ 40,000/- + ₹25,000/-) ₹6,65,000/-.
12. Following the consistent view taken by this Court, the rate of interest
is increased to 9% 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.].
13. Needless to add, while computing the payment required to be made,
the amounts already paid and received shall be suitably adjusted.
14. The award is modified accordingly. The insurer is directed to pay the
effect of the enhanced award, inclusive on account of increased rate of
interest, by requisite deposit with the tribunal within 30 days whereupon it
shall be released to the claimant in the form of four equally divided fixed
deposit receipts in her name in a nationalized bank of her choice for a period
of 10 years. As and when the claimant requires immediate finance for
purposes of her further treatment, or education, or settlement in life, she will
have the liberty to approach the tribunal for pre-mature release from such
fixed deposits to the extent necessary.
15. The appeal is disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 26, 2016
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