Delhi High Court
The New India Assurance Company ... vs Surinder Pal @ Surinder Kumar & ... on 6 December, 2017
$~R-656 & 657
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 06th December, 2017
+ MAC APPEAL 1187/2012 and CM 19216/2012
THE NEW INDIA ASSURANCE COMPANY
LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
versus
SURINDER PAL @ SURINDER KUMAR
& ORS. ..... Respondents
Through: None
+ MAC APPEAL 832/2013
SURINDER PAL @ SURINDER KUMAR ..... Appellant
Through: None
versus
THE NEW INDIA ASSURANCE COMPANY
LTD. ... Respondent
Through: Mr. Pankaj Seth, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent in MACA 1187/2012 (claimant) was
travelling as a passenger in three wheeler scooter bearing registration
no.DL-1RB-5604 on 10.10.1997 when it came to be involved in an
accident turning turtle resulting in he suffering injuries. The accident
claim case (suit no.227/2011/1998) was instituted with all promptitude
on 25.03.1998 on his behalf by his wife claiming herself to be the next
friend describing him to have been rendered mentally unstable at that
stage, the claim being on the averments that the TSR driver Ashok
Kumar had been negligent.
2. The tribunal's record reveals that there was utter neglect on the
part of the counsel representing the claimant in proper prosecution, the
petition being suffered to be dismissed in default on 12.07.2005. On
the basis of application later moved, it, however, stood revived. The
case took its own time in reaching a logical conclusion by the
judgment dated 07.08.2012 whereby the case that the accident had
occurred due to negligent driving of the TSR was accepted, this
primarily on the word of the claimant (PW-2), he having assumably
regained the capacity to depose and having testified on the strength of
his affidavit (Ex. P2).
3. The claimant was evaluated by a board of doctors of Safdarjung
Hospital, which issued disability certificate (Ex. PW2/A) affirming
that he is a permanently disabled person due to post head injury right
hemiparesis, the said physical impairment having been taken as 40%
in relation to the right upper and lower limbs. The claimant had stated
that he was earning his livelihood as a grocer before the accident. The
tribunal took his permanent disability as total (100%) and by the
impugned judgment dated 07.08.2012 awarded compensation in the
sum of Rs.6,64,338/- adding the element of interest at the rate of 9%
pa.. calculating the award thus :-
Treatment expenses Rs.322/-
Pain and suffering Rs.1,00,000/-
Diet and conveyance Rs.1,25,000/-
Attendant's charges Rs.42,816/-
Loss of income Rs.23,400/-
Disability & Loss of amenities Rs.3,97,800/-
Total Rs.6,89,338/-
Less interim award Rs.25,000/-
Balance amount payable Rs.6,64,338/-
4. The insurer came up with the appeal (MACA 1187/2012) taking
objection to the finding on the issue of connection between the
accident and the disability suffered. It also took exception to the
assessment of functional disability submitting that the awards under
various heads are excessive.
5. Per contra, the claimant by his appeal (MACA 832/2013) has
sought enhancement of the compensation.
6. Both appeals were put in the list of 'Regulars', to come up on
their own turn, as per orders dated 13.07.2017 and 29.02.2016. When
they are called out for hearing, there is no appearance on behalf of the
claimant. The matter has been heard with the assistance of the counsel
for the insurer.
7. On first blush, it does appear to be a case with gap in the
evidence with regard to the injuries suffered in the accident and the
treatment undertaken. It also does appear that as per the record of the
corresponding police case, the first information report (FIR)
no.1037/1997 registered on 15.10.1997 was sought to be cancelled. It
was on the basis of a complaint lodged at the instance of the claimant
on 24.10.2005 that the said proceedings were revived, the said FIR
eventually having resulted in a charge-sheet being presented in the
court of the Metropolitan Magistrate on 02.01.2008 for prosecution of
the TSR driver for offences punishable under Sections 279, 338 of
Indian Penal Code, 1860.
8. It has, however, to be borne in mind that the injuries suffered
included in the head region. The police record shows that the claimant
when approached for taking of statement by the investigating police
officer was reported to be unfit for such purpose. The record would
confirm that he remained in mentally unstable condition due to the
disability as it also turns out form the fact that the accident claim case
had been filed on the basis of such facts in March 1998. It is the
neglect on the part of the counsel prosecuting the case for and on
behalf of the claimant, acting through his next friend, and also
possibly on the part of the investigating police that the entire chain of
documents could not be gathered and preserved as evidence.
9. Be that as it may, the evidence led particularly through official
witnesses of Safdarjung Hospital (PW-3), Ram Manohar Lohia
Hospital (PW-6) and Institute of Human Behaviour and Allied
Sciences (PW-7) does help in completing the picture to the extent
possible and bringing out the fact that throughout the period of inquiry
before the tribunal, the claimant had been under intensive treatment
for the head injuries suffered. The connection between the said
injuries and the condition on the basis of which he has been found to
be rendered permanently disabled, thus stands established.
10. In the given facts and circumstances, having regard to the
condition to which the claimant was reduced, this court declines to
interfere with the finding on the issue of functional disability. The
award granted by the tribunal is found to be just and adequate. The
grievance in the appeal of the claimant that the expenditure on account
of treatment undertaken is deficient cannot be accepted as no proof in
this regard was adduced, the treatment apparently having been availed
primarily free of cost.
11. In above facts and circumstances, both appeals and the pending
application are dismissed.
12. By order dated 19.11.2012 on MACA 1187/2012, the insurance
company had been directed to deposit the entire awarded amount with
up-to-date interest and from out of such deposit, some amount was
directed to be released by orders dated 19.11.2012 and 24.05.2017.
The balance with accrued interest shall also be released to the
claimant.
13. The statutory amount shall be refunded to the insurer after proof
is shown of the award having been satisfied.
R.K.GAUBA, J.
DECEMBER 06, 2017
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