Delhi High Court
Shreya Goel vs Mukesh Kumar & Ors. on 31 July, 2017
$~R-15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31st July, 2017
+ MAC APPEAL No. 48/2009
SHREYA GOEL ..... Appellant
Through: Mr. Rakesh Tiku, Sr. Adv. with
Ms. Arpan Wadhawan, Adv.
versus
MUKESH KUMAR & ORS. ..... Respondents
Through: Mr. P. Acharya, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant (claimant) then 9 years old, was travelling in
motor vehicle make Indica bearing registration no. DL 7C A 2877,
driven by her father Rakesh Goel, on 01.06.2002, with certain other
persons, when it met with an accident involving another motor
vehicle, it being a jeep bearing registration no. HR 02 H 9914, which
was admittedly insured against third party risk covering the period in
question with the third respondent (insurer). A number of claim
petitions were filed including for and on behalf of the appellant (it
being MACT 211/04/03) instituted on 14.07.2003. All the said claim
petitions were clubbed together and inquiry held by the motor accident
claims Tribunal (Tribunal), it culminating into judgment dated
01.10.2008, returning a finding that the accident had occurred on
account of negligent driving of both the vehicles, the responsibility
being equally apportioned.
2. The Tribunal upheld the claim of compensation for and on
behalf of the appellant and assessed it in lumpsum amount of Rs. 6
lakhs but considering the "blameworthiness" of the driver, directed the
amount of Rs. 3 lakhs only to be paid, this with interest @ 7.5% per
annum, the responsibility to pay having been fastened on the insurer.
3. The present appeal was filed questioning the method of
calculation of compensation by the Tribunal and seeking
enhancement. It has been pointed out that the claimant had suffered
extensive injuries including grievous ones which required prolonged
treatment and surgical procedures, the injuries having resulted in loss
of some teeth as also disfigurement which has necessitated continued
treatment inclusive for plastic surgery. It was pointed out that the
Tribunal did not embark upon the necessary exercise of making the
assessment for compensation on account of loss of studies which
resulted in the academic career and gainful employment of the
appellant being pushed back by a year.
4. During the pendency of the appeal, on application being moved
to such effect, the appellant was allowed opportunity to lead additional
evidence. In exercise of the said right, she examined herself (AW-1).
In addition, she has also examined Mr. Dharnandra N. Gonageri
(AW-2) an official of Sri Dharmasthala Manjunatheshwara, College of
Medical Sciences & Hospital, Manjushri Nagar, Sattur, Dharwad -
110009 where she had undergone surgical procedure for removal of
the scar. The respondents have not led any evidence in rebuttal.
5. Having heard the learned senior counsel for the appellant and
the counsel appearing for the third respondent and having perused the
record, including the evidence led before the Tribunal, this Court finds
that the Tribunal fell in error by not undertaking a proper exercise of
making an assessment of the loss incurred by the appellant or in
construing the effect the injuries suffered by her have had on her life.
The evidence on record shows that, as a result of the accident, the
bones in the forehead and root of the nose had got fractured. Initial
management was conservative treatment but as a result of the internal
damage the appellant developed pyogenic meningitis and septicemia
(CR 692527) and this required treatment as indoor patient sometime in
July, 2002. The diagnostic procedures undertaken around that time
showed fracture of right ethmoid, right maxillary sinus and floor of the
right orbit besides cortical break in the cribriform plate on the right
side with herniation of brain parenchyma into ethmoid cells (Ex.PW-
1/27). The said damage was repaired surgically. The treatment
continued in Indraprastha Apollo Hospital, the appellant having
developed post traumatic faciomaxillary bone deformities (Ex.PW-
1/32) for which there was a medical advice for re-constructive surgical
corrections. The assessment made at that stage (14.11.2003) was that
surgical procedure would be in three stages, each such procedure
likely to require expenditure in the sum of Rs. 1.5 lakhs, the total
expenditure being in the region of 4.5 to 5 lakhs.
6. While the appeal remain pending, the evidence shows, the
appellant was taken by her parents for the necessary surgical
intervention, this resulting in expenditure computed at Rs. 1,99,869
(Ex.AW-1/1 to Ex.AW-1/5, collectively). The evidence adduced
before the Tribunal about the prolonged surgical procedures requiring
corrections for the deformity, which is quite palpable, required to be
factored in while making the award on account of medical
expenditure. In this view, this Court is of the opinion that the award
made by the Tribunal requires modification. Medical expenditure
assessed in the total sum of Rs. 5 lakhs deserves to be added, this
taking care of expenditure already incurred as well as to be incurred in
future follow up treatment.
7. The tribunal noted that the accident had occurred on
01.06.2002. The appellant at that point of time was 9 years old. The
medical treatment record that her studies would have been pushed
back by at least a year, as is claimed. She is present in Court and, on
being asked, fairly conceded that she had completed her graduation in
2014, having attained the degree of Bachelor of Arts in political
science. Thereafter, she went on to pursue a diploma course in Public
Relations and Corporate Communication and having successfully
completed the said course, is now gainfully employed. Be that as it
may, it is clear from the chronology of events that her settlement in
gainful employment has suffered from delay. Therefore, the loss of
income corresponding to one year, on the minimum wages available to
a graduate during that period, would be the correct benchmark for
added compensation under that head. This is computed as (10218 x
12) Rs. 1,22,616/-.
8. The non-pecuniary damages under the components of pain &
suffering and loss of amenities of life (and disfigurement) on one hand
and towards loss of marriage prospects deserve to be added. Having
regard to the nature of injuries suffered, amount of Rs. 1 lakh each
under the heads of loss of amenities of life (and disfigurement) and
loss of marriage prospects and Rs. 1,50,000/- towards pain and
suffering are added. The total compensation in the case, thus, comes to
(5,00,000+1,22,616 + 1,50,000 + 1,00,000+ 1,00,000) Rs. 9,72,616/-
rounded off to Rs. 9,73,000/-.
9. Having regard to the fact that the claimant was a passenger in
the car, her claim cannot be affected by the element of contributory
negligence, even if it was on part of her father. Therefore, the
direction of the tribunal for deduction on that account to the extent of
fifty per cent (50%) is set aside.
10. 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 increased to 9% per
annum from the date of filing of the petition till realization.
11. The award is modified accordingly.
12. The third respondent insurance company shall satisfy the award
by requisite deposit with the tribunal within 30 days.
R.K.GAUBA, J.
JULY 31, 2017/nk
