Delhi High Court
New India Assurance Company vs Ratan Haldar & Ors on 4 July, 2017
$~5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 4th July, 2017
+ MAC.APP. 246/2016
NEW INDIA ASSURANCE COMPANY ..... Appellant
Through: Mr. Ravinder Singh &
Ms. Raveesha Gupta,
Advocates.
versus
RATAN HALDAR & ORS ..... Respondents
Through: Mr. Rajesh Dwivedi, Advocate
+ MAC.APP. 382/2016
RATAN HALDAR ..... Appellant
Through: Mr. Rajesh Dwivedi, Advocate
versus
NEW INDIA ASSURANCE CO LTD & ORS ..... Respondents
Through: Mr. Ravinder Singh &
Ms. Raveesha Gupta,
Advocates.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Both these appeals arise out of judgment dated 19.02.2016 of
motor accident claims tribunal (tribunal) on the file of accident claim
case registered as MAC No. 432/2016, it having been instituted by
Ratan Haldar, appellant in MAC Appeal No. 382/2016, seeking
compensation for injuries suffered in motor vehicular accident that
statedly occurred on 28.02.2010 at about 8.30. p.m., involving rash
driving of rural transport vehicle (RTV) No. DL IVA 2947, it being
covered by an insurance policy against third party risk issued by New
India Assurance Company (insurer), appellant in MAC Appeal No.
246/2016.
2. The contention of the claimant before the tribunal was that the
RTV was driven by Pankaj Kumar (second respondent in the claim
petition) in a rash manner it having struck against the claimant, he
suffering injuries which have rendered him permanently disabled. The
RTV is stated to be registered in the name of Hirdesh (first respondent
before the tribunal). The issue of negligence or rash driving on the
part of the RTV driver was decided in favour of the claimant and the
same is not challenged by any appeal including by the insurer. The
said finding, thus, is taken as having attained finality.
3. The tribunal by the impugned judgment dated 19.02.2016
awarded compensation in the sum of Rs. 13,41,712/- and directed the
insurer to pay the same with interest @ 12 % per annum. In arriving
at the said amount of compensation, the tribunal added the future loss
of income on the basis of conclusion that the claimant had suffered
permanent functional disability to the extent of 100%, this, in contrast,
to the disability certificate (Ex.PW-3/A) indicating the assessment by
a board of doctors to be 75% permanent disability in relation to whole
body. The tribunal also added Rs.50,000/- as compensation to take
care of the needs for future treatment.
4. The insurance company has come up with MAC Appeal No.
246/2016 questioning the assessment of functional disability to the
extent of 100% and the addition of Rs. 50,000/- towards future
treatment, submitting it had no basis and also expressing grievance as
to the rate of interest terming it as unduly high.
5. The claimant, on the other hand, by MAC Appeal No.
382/2016, has come up to seek enhancement of compensation stating
that he has not been awarded adequate attendant charges and that the
award towards future treatment is also on the lower side.
6. The prime issue of concern is the extent of disability. The
learned tribunal, by observations in para 18 and 19, has computed the
functional disability to be 100%, this on the basis of observation of the
petitioner having appeared with the support of his sons telling the
tribunal that he was unable to work or attend even the call of nature
without support, the fingers of his hands having been rendered
"completely immobile" and he being bed ridden, which, in the opinion
of the tribunal, has rendered him in "quadriplegic stage".
7. On perusal of the tribunal's record, this Court finds that the
observations recorded by the tribunal have actually no basis.
8. In his evidence as PW-1 on the strength of his affidavit
(Ex.PW-1/A), the claimant only referred to the disability certificate
stating that he had suffered disability to the extent of 75% in relation
to whole body. There was no claim that this assessment was
inadequate. Even while deposing orally, the claimant did not testify
that he was unable to get back to any gainful work in the aftermath of
the injuries suffered.
9. The disability certificate (Ex.PW-1/5) was issued by board of
doctors of Lal Bahadur Shastri Hospital, Govt. of NCT of Delhi,
Khichripur on 24.02.2012. It indicates that the board comprised of
four doctors two of whom were ortho-specialists. In the name of
evidence to prove the said disability certificate, however, the claimant
relied on the evidence of Dr. Sanjay Kumar (PW-3) an eye specialist.
The said doctor (PW-3) in his testimony conceded that he was not an
orthopedic specialist, his specialization being "eyes", there being no
injury suffered in that part of the body. PW-3 was categorical in
admitting that he was unable to tell the basis of calculation of
disability that had been certified he having concededly signed the
certificate only because he was a member of the board.
10. The above state of evidence clearly shows that Tribunal had not
secured proper evidence to reach appropriate conclusion as to the
nature of disability suffered by the appellant or its effect on
functionality of the claimant to continue to earn his livelihood.
11. Faced with the above fact-situation, the learned counsel for the
appellant fairly conceded that the contention of the insurance company
on the basis of available record would have to be accepted. He,
however, accepted that he may be given one more opportunity to lead
appropriate evidence. The counsel for the insurance company
submitted that she leaves the matter to the Court.
12. Having regard to the above fact-situation, it would be proper
that the claimant is given one more opportunity to prove the extent of
disability and its effect on his capacity to earn his livelihood. Thus,
the impugned judgment is set aside, the matter is remitted to the
Tribunal for affording additional opportunity to the claimant for
further evidence only on the above aspect. Needless to add, the
insurance company will be entitled to lead evidence in rebuttal, if any.
After such opportunity has been afforded, the Tribunal shall re-
consider the question of compensation including respecting the areas
concerning which the insurer and the claimant have raised grievances
before this Court. While taking fresh decision, the Tribunal will not
feel bound by the decision earlier taken by it on any of the heads of
damages - pecuniary or non-pecuniary. It must, however, bear in mind
the relevant law on the subject.
13. The parties are directed to appear before the tribunal for further
proceedings in accordance with law on 4th August, 2017.
14. The tribunal's record shall be returned forthwith with copy of
this judgment.
15. By order dated 22.03.2016, the insurance company had been
directed to deposit the entire amount in terms of the impugned
judgment of the tribunal with interest calculated at 9% per annum with
the tribunal within a period of 30 days. Upon such deposit being
made, the tribunal was allowed to release 40% of the awarded amount
in terms of the impugned judgment, the balance having been kept in
an interest bearing fixed deposit initially for a period of one year with
provision for renewal from time to time. The said order has since been
complied with. The amount already received by the claimant shall be
suitably adjusted in terms of the fresh award passed hereinafter by the
tribunal. The balance amount shall be presently refunded to the
insurance company.
16. The statutory deposit, if made, shall also be refunded.
17. The appeals are disposed of in above terms.
R.K.GAUBA, J.
JULY 04, 2017/nk
