Delhi High Court
Amit Kumar & Ors. vs United India Insurance Company ... on 5 December, 2017
$~R-639 & 639A (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 5th December, 2017
+ MAC APPEAL 1144/2012 and CM No.18466/2012
UNITED INDIA INSURANCE COMPANY LIMITED
..... Appellant
Through: Mr. Priyadarsi Acharya, Advocate
versus
AMIT KUMAR & ORS. ..... Respondents
Through: Mr. O. P. Mannie, Advocate for R-1
+ MAC APPEAL 571/2013
AMIT KUMAR & ORS. ..... Appellants
Through: Mr. O. P. Mannie, Advocate
versus
UNITED INDIA INSURANCE COMPANY LIMITED
..... Respondent
Through: Mr. Priyadarsi Acharya, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By judgment dated 30.05.2012, the motor accident claim
tribunal decided the accident claim case (MACT 744/10/7) which had
been instituted on 31.08.2007 seeking compensation under sections
166 and 140 of the Motor Vehicles Act, 1988 for injuries statedly
suffered by Amit Kumar, the claimant (respondent no.1 in MAC
APP.1144/2002 and appellant in MAC APP.571/2013). By the said
judgment, the Tribunal, inter alia, held the claimant to have suffered
functional disability to the extent of 90%. It granted compensation in
total of Rs.24,33,400/- with direction to the insurer to pay the said
amount with interest @ 9% per annum, it concededly being the insurer
which had issued the insurance policy covering third party risk in
respect of motor cycle bearing registration no.DL8 ST 8447, the
accident statedly having been caused due to its negligent driving.
2. The insurer came up with MAC APP.1144/2012 against the
assessment of functional disability by the tribunal for awarding
compensation, besides challenging directions for payment of „lawyers
fee and out of pocket expenses‟.
3. Per contra, the claimant filed cross-objections (CM
No.6981/2013) which was registered as an independent appeal vide
order dated 03.05.2013. The appeal (MAC APP.571/2013) seeks
enhancement of compensation
4. Having heard learned counsel on both sides, this Court finds
that the procedure adopted by the tribunal was wholly vitiated, which
defect must result in the impugned judgment being set aside and the
claim case being remanded to the tribunal for further appropriate
proceedings. The reasons may be set out hereinafter.
5. The claim case was instituted initially on 31.08.2007 for and on
behalf of the claimant by his father describing himself to be his natural
guardian stating that he (the claimant) was a person of unsound mind.
As per averments in the claim petition, the mental incapacity had
arisen due to the injuries suffered in the accident. The tribunal
proceeded with the matter accordingly and after serving notices and
upon completion of pleadings, put the case to inquiry by framing
issues on 19.05.2010.
6. The claimant at such stage was present with his counsel Mr. R
K Jain. The tribunal noted the background wherein he had been
described as a person of unsound mind, not in a position to file the
petition or depose in the court or by affidavit. Against this backdrop,
the tribunal decided to call for a confirmation from the hospital where
treatment had been taken to satisfy itself as to whether the claimant
had since become fit, his mental condition being rendered stable.
Subsequent proceedings would not show further opinion having been
obtained from medical authorities. No call has been taken by the
tribunal to the state of mental incapacity (or otherwise) of the claimant
to prosecute the case on his own behalf. It is noted that on
19.04.2011, an amended petition came on record it bearing the date
26.08.2010 wherein reference to the mental incapacity or need for
prosecution of the case through a next friend (natural guardian/ father)
was omitted, giving an impression that he (the claimant) intended to
prosecute the case on his own. The corresponding proceedings
recorded on 19.04.2011, however, do not account for any such
amended petition being permitted or judicial notice thereof taken. The
case thereafter proceeded further in the course of which six witnesses
came to be examined for and on behalf of the claimant, he having
examined himself (as PW-3) on the strength of his affidavit (PW3/4).
7. Two disability certificates came on record during the course of
above noted proceedings, the first (Ex.PW5/A) bearing date
22.09.2008 issued by board of doctors of Hindu Rao Hospital and, the
second (Ex.PW-6/1), bearing date 13.10.2011 issued by board of
doctors of Dr. Ram Manohar Lohia Hospital, New Delhi. The second
certificate indicates that in opinion of the medical board the claimant
suffers from mental illness, diagnosis being of "dementia due to brain
damage".
8. Crucially, the father or natural guardian have not appeared
before the tribunal. This backdrop is of prime concern. There is
nothing to show as to how the evidence of PW-3 (claimant) could
have been accepted or acted upon if he is a case of dementia for which
reason he would not have the mental capacity to prosecute the case on
his own. It is quite clear that the tribunal has given a total go-bye to
the basic precautions that must be borne in mind while dealing with
such cases as at hand. This casual approach cannot be approved of.
9. In the foregoing facts and circumstances, this Court is left with
no option but to set aside the impugned judgment and remand the
matter back to the tribunal for holding fresh inquiry. Before
proceeding further, the tribunal shall have proper evaluation done as to
the mental capacity (or otherwise) of the claimant and, if so required
in light of such evaluation, first call upon the natural guardian(s) to act
as next friend and in case of any default or negligence on his (or her)
part, to proceed to appoint next friend and hold further proceedings in
accordance with law.
10. The parties are directed to appear before the tribunal on 7 th
February, 2018.
11. By order dated 02.11.2012 in MAC APP.1144/2012, the
insurance company had been directed to deposit 50% of the awarded
amount (excluding the counsel fee and out of pocket expenses) and
out of such amount deposited, Rs.2,50,000/- was permitted to be
released to the claimant. By subsequent order dated 19.01.2016,
another sum of Rs.2.5 lacs was allowed to be released to the claimant.
The balance deposited amount having been put in the form of fixed
deposit is lying in bank along with accrued interest with statutory
deposit which shall presently be refunded to the insurance company.
The amount already released to the claimant shall be liable to be
adjusted or be subject to suitable directions to be passed by the
tribunal at the time of fresh adjudication.
12. Both the appeals are disposed of in above terms.
R.K.GAUBA, J.
DECEMBER 05, 2017
sm
