Delhi High Court
Tata Aig General Insurance Co Ltd vs Sangeeta Gupta And Ors (National ... on 2 August, 2017
$~16 & 17 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 2nd August, 2017
+ MAC.APP. 1095/2016
DR SANGEETA GUPTA ..... Appellant
Through: Mr. L.K.Singh, Advocate with
Mr. Raj Kumar &
Ms. Saira Parveen, Advs.
versus
TATA AIG GENERAL INSURANCE CO LTD & ORS
..... Respondent
Through: Ms. Vandana Kahlon, Adv.
with Mr. Rudra Kahlon, Adv.
for R-1.
Mr. Pankaj Seth, Adv. for NICL
+ MAC.APP. 61/2017 and CM APPL.1896/2017 (stay)
TATA AIG GENERAL INSURANCE CO LTD..... Appellant
Through: Ms. Vandana Kahlon, Adv.
with Mr. Rudra Kahlon, Adv.
for R-1.
versus
SANGEETA GUPTA AND ORS (NATIONAL INSURANCE
CO. LTD) ..... Respondents
Through: Mr. L.K.Singh, Advocate with
Mr. Raj Kumar &
Ms. Saira Parveen, Advs for
R-1.
Mr. Pankaj Seth, Adv. for NICL
MACA 1095/2016 & 61/2017 Page 1 of 11
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Dr. Sangeeta Gupta (the claimant), appellant in MAC
APP.1095/2016, then 32 years, a highly educated person having
attained the degree of Ph.D., working as Reader in Harsaran Dass
Dental Medical College, Ghaziabad with past experience of teaching
in the capacity of Lecturer in Bio-chemistry in the Institute of Higher
Learning, NIMS, Jaipur was travelling as a passenger of Maruti Van
bearing registration No.DL-2CE-0600 (hereinafter, "the Maruti Van")
with five students on 22.08.2003, at about 8:15 a.m., when the said
vehicle met with an accident with a Santro car bearing registration
No.UP-Z-001-9121 (hereinafter "the Santro car"). Due to the
collision, the Maruti van turned turtle and fell into a ditch on the
roadside resulting in all its occupants including she (the claimant)
suffering injuries, the injuries sustained by her primarily affecting the
head region.
2. The claimant had initially instituted accident claim case
before the Motor Accident Claims Tribunal at Meerut, U.P. on
12.08.2004 but, after some inquiry, it was returned by the said
Tribunal for it to be instituted afresh before the Tribunal at Delhi. She
brought her claim petition (MAC No.1161/2010) before the Tribunal
at Delhi on 04.10.2016 in which she impleaded Satish Kumar, one of
the respondents herein, he being the driver of the Santro car and M/s.
TATA AIG Insurance Company Limited (appellant in MAC
APP.61/2017) as respondents. She also impleaded Raj Rani, owner of
the Maruti van and M/s. National Insurance Company Limited (insurer
of the said vehicle), both being reflected in the array before the
tribunal as third and fourth respondents respectively, they being party
respondents to these appeals.
3. The claim case resulted in inquiry in the course of which
evidence was led by both sides. On the conclusion of the said inquiry,
the Tribunal, by its judgment dated 05.09.2016, upheld the case for
compensation on the principle of fault liability holding the driver of
the Santro car responsible. The Tribunal assessed the compensation in
the sum of Rs.13,24,473/- and directed the insurer of the Santro car
(appellant in MAC APP.61/2017) to pay the same with interest @
12%, from the date of filing of the petition till realization.
4. The compensation was computed by the tribunal under various
heads as under:-
Sl.No. Head Amount in (Rs.)
1. Compensation towards pain and suffering 80,000/-
2. Compensation towards medical bills 50,1113/-
3. Loss of earning capacity due to disability 7,83,360/-
4. Loss of earning for a period of 12 months 2,04,000/-
5. Attendant charges for 12 months 42,000/-
6. Special diet and conveyance 15,000/-
7. Compensation towards loss of amenities 50,000/-
and enjoyment
8. Compensation towards disfigurement 50,000/-
9. Compensation towards loss of marriage 50,000/-
prospects
Total 13,24,473/-
5. It may be mentioned here that the tribunal found, on the basis of
proof adduced to that effect, that the claimant had suffered disability
to the extent of 34%. It also found that she had suffered loss of
income for the period of treatment and consequent to the disability
factor, she was also held entitled to compensation for loss of earning
capacity in future, this having been calculated, with the multiplier of
16, on the basis of notional income to Rs.12,000/- per month.
6. The insurer of the Santro car has come up in appeal (MAC
APP.61/2017) questioning the impugned judgment primarily on the
subject of computation of compensation but also raising the issue that
the Maruti van driver was responsible for the accident, in that it is he
who had taken a sudden turn, through a cut in the central divider,
thereby coming in the path of the Santro car which was moving in
exercise of its right of way.
7. The contention of the insurer of the Santro car on the issue of
negligence has to be appreciated in the light of evidence led by both
sides. It is clear from the deposition of the claimant (PW-1), as indeed
of the driver of the Santro car (R1W1), that both vehicles had
approached the scene from different directions on the road which was
divided into two carriage-ways, each side meant for movement of the
traffic in the opposite directions. The accident occurred when the
Maruti van had taken a U-turn, through a cut in the central verge, in an
attempt to merge into the traffic moving on the other side. The
evidence of PW-1 clearly shows that the Santro car had come at fast
and uncontrolled speed. Though R1W1, in the course of his testimony,
would claim that he was moving at a speed of 40-50 kms per hour, he
conceded during his cross-examination that when the Maruti van was
taking a turn, having emerged from the cut in the central verge, he was
unable to avoid the collision even though he had applied brakes "very
hard". The negligence on the part of Santro car driver is writ large in
this admission. Moving on a busy road, where he admits there were
many vehicles in motion at the relevant point of time, knowing fully
well the presence of the cut in the central verge, it was his
responsibility to ensure that there was no collision with any other
vehicle on the road, such collision easily avoidable by keeping the
speed of the vehicle under proper check.
8. In above facts and circumstances, this court is not inclined to
disturb the finding returned by the tribunal placing the responsibility
for the collision on the Santro car driver.
9. The evidence adduced before the tribunal clearly shows that the
claimant had suffered head injury which resulted in prolonged
treatment. She remained in coma during in-door treatment in
Sarvodaya Hospital, Ghaziabad from where, under medical advice,
she was shifted to AIIMS for surgery. She underwent surgery in
Department of Neurosurgery, AIIMS. This was followed by another
operation on 02.10.2003. She remained confined to bed till March,
2004 when she was able to move around, though with support of the
family members.
10. On her request, by order dated 16.09.2015, the claimant was
referred to Medical Superintendent of GTB hospital of the Govt. of
NCT of Delhi for evaluation of her medical condition. Pursuant to the
said directions, she was examined by doctors of Neurosurgery
Department of GTB hospital from where she was referred for
neuropsychological assessment in IQ by the Institute of Human
Behaviour and Allied Sciences (IHBAS) and, on the basis of advice
received, the medical board of the GTB hospital of the Govt. of NCT
of Delhi issued a disability certificate dated 27.04.2016 stating that she
suffers from mental disability to the extent of 34%, such condition
being permanent. The disability certificate is available (at page 821) in
the tribunal‟s record. The disability is described by the claimant as
loss of memory. This indeed has had an impact on her capacity to
continue as an academician in the subject in which she had been
qualified and engaged till date of the accident.
11. It was pointed out during the course of arguments by the
counsel for the insurer of Santro car, that during the inquiry before the
tribunal at Meerut, U.P., by her evidence (recorded on 11.05.2005),
the claimant had deposed that she had been working in Harsaran Dass
Dental Medical College, Ghaziabad since 2002, her initial
appointment being to the post of senior lecturer at a salary of
Rs.14,000/- per month, she having been later promoted to the level of
Reader where she was still continuing at the time of such deposition.
A copy of the said statement before the tribunal at Meerut recorded on
11.05.2005 has been submitted as Annexure „D‟ (to the MAC APP.
61/2017). It was further pointed out by the counsel for the insurer of
the Santro car that the claimant, having filed the accident claim case
afresh before the tribunal at Delhi, had submitted her affidavit
(Ex.PW1/1), sworn on 13.04.2009, on the basis of which she testified
on 23.02.2011 when she was subjected to cross-examination. Copies
of the affidavit, and the statement recorded in the tribunal, have been
submitted with appeal (MAC APP.61/2017) as Annexure „F‟ and „H‟
respectively.
12. The counsel for insurer (appellant) pointed out that even on
23.02.2011 the claimant had continued to be in employment of the
same college and, thus, argued that there has been no loss of
employment. His argument is that since the claimant did not suffer
any loss of job, there could not have been any compensation awarded
on account of loss of income as has been included in the award, it
being under the head of loss of earning for the period of twelve
months. He also submitted that since the claimant had actually been
promoted from the post of lecturer to the post of Reader, after the
accident, there cannot be a finding returned that she had suffered
financially or would suffer loss of earning capacity due to disability.
13. On the other hand, it was argued on behalf of the claimant that
what is sought by the claimant was not compensation on account of
loss of employment but compensation for the period of absence from
duty for which there would be no salary received. It was also argued
that given the nature of the injuries suffered and the effect it has had
on the mental faculties of the claimant, the functional disability would
undoubtedly affect her future capability to earn for which appropriate
award deserves to be added, as has been rightly so done by the
tribunal.
14. It is noted that though the claimant admitted at the time of her
deposition before the tribunal on 23.02.2011 that she had continued to
be in the same job in which she was employed at the time of accident,
it is clear that, notwithstanding the change of the post she held earlier,
she has not earned any incremental progressive rise in income. Her
income virtually remained frozen since 2003 at the same level it was
at least till 2011 when her statement was recorded. This, in the given
facts and circumstances, must be construed as attributable to the fact
of mental faculties having been adversely affected due to the injuries
suffered in the head region. The testimony of the claimant, as PW-1,
about she not having been able to resume duties for three years due to
the injuries suffered and the consequent hospitalization or on account
of medical treatment has remained unimpeached. In these
circumstances, the loss of income during the period of treatment
should have been compensated equivalent to the salary she was
drawing for a period of thirty six (36) months rather than restricted to
twelve months as factored in by the tribunal.
15. This court accepts the submissions of the insurer of the Santro
car that since the claimant had continued to be in the same job, the
loss of earning capacity due to disability could not have been pegged
to the date of the accident. Such loss would accrue at the time when
she would reach the age of superannuation which, in absence of any
formal proof to the contrary, may be assumed to be the age of 60
years. But, for such purposes, the notional income which the claimant
would reach by such age will have to be computed and then the
multiplier of 9 applied for fair assessment.
16. It is noted that the tribunal assessed the income of the claimant
at Rs.12,000/- per month without any basis. It appears this was done
on the wrong assumption that her salary was reflected by the
certificate (Ex.PW-4/4) which was issued on 28.02.2004. The
evidence of the claimant that she was earning Rs.14,000/- per month
at the relevant point of time could not have been ignored. Therefore,
the loss of income during the period of treatment is calculated as
(14,000/- x 36) Rs.5,04,000/-. This would mean an increase in the
loss of earning by (5,04,000/- minus 2,04,000/-) Rs.3,00,000/-.
17. By factoring in element of fifty percent (50%) of future
prospects, the income of Rs.14,000/- per month accruing in August,
2003 would turn out to be (14,000/- x 150/100) Rs.21,000/- as the
notional income at the age of 60 years. Taking into account the 34%
functional disability, and applying the multiplier of 9, the loss of
future income is calculated as (21,000/- x 34/100 x 12 x 9)
Rs.7,71,120/-. Since the tribunal has awarded Rs.7,83,360/- under this
head, the award would need to be reduced by Rs.12,240/-.
18. Having regard to the nature of injuries suffered and the deep
impact they would have on her future not only in the career but in
personal life, the non-pecuniary heads of damages are found to be
inadequate. The compensation on account of pain and suffering, loss
of enjoyment of amenities of life, as indeed towards loss of marriage
prospects are, therefore, increased to Rs.1,00,000/- each. This would
mean the net further increase of (3,00,000/- - 1,80,000/-) Rs.
1,20,000/-. The gross effect of the above modifications would be that
the award deserves to be increased by (3,00,000/- + 1,20,000/- -
12,240/-) Rs.4,07,760/-.
19. The award is, thus, increased to (13,24,473/- + 4,07,760/-)
Rs.17,32,233/-, rounded off to Rs.17,33,000/-.
20. 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 reduced to 9% per
annum from the date of filing of the petition till realization.
21. The execution of the award was stayed by order dated
01.03.2017 (in MCA APP.61/2017) on the condition that the entire
awarded amount with interest be deposited with the tribunal. By order
dated 19.05.2017, forty percent (40%) of the said amount was released
to the claimant. The balance lying in deposit shall also now be
released.
22. The appellant (in MAC APP.61/2017) shall satisfy the enhanced
portion of the award by requisite deposit with corresponding interest
with the tribunal within thirty days, whereupon it shall be released to
the claimant.
23. The statutory amount be refunded to the insurance company.
24. Both the appeals stand disposed of in above terms.
R.K.GAUBA, J.
AUGUST 02, 2017
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