Delhi High Court
New India Assurance Co. Ltd. vs Gunmati & Ors. on 28 November, 2017
$~R-581
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th November, 2017
+ MAC.APP. 932/2012
NEW INDIA ASSURANCE CO. LTD.
..... Appellant
Through: Mr. Priyadarshi Acharya, Advocate
Versus
GUNMATI & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent (claimant), then aged 51 years, suffered
injuries in a motor vehicular accident that occurred on 11.12.2010,
upon being hit by a car bearing registration No.DL-5CD-3614 driven
in a negligent manner. She instituted accident claim case (MACT
No.272/2011) on 17.02.2011, seeking compensation. The tribunal held
inquiry and, by judgment dated 10.04.2012, returned a finding that the
accident had occurred due to negligence of the car driver Shyam
Singh, the second respondent in the appeal. The tribunal awarded
compensation in the total sum of Rs.2,28,909/- and directed the
appellant to pay the same with interest, it admittedly being the insurer
of the car against third party risk for the period in question. The
amount was calculated thus:-
Sl. Heads Amount
No. (in Rs.)
1. Medical expenses 16,409/-
2. Future medical treatment expenses 60,000/-
3. Physiotherapy expenses 25,000/-
4. Special diet 10,000/-
5. Conveyance charges 10,000/-
6. Notional income 7,500/-
7. Pain, suffering, inconvenience frustration, 1,00,000/-
hardship and trauma
Total 2,28,909/-
2. The insurer, by the appeal at hand, submits that there was
negligence on the part of the claimant herself as she was crossing the
road from a place where there was no zebra crossing or any traffic
light to cross the road. The insurer also questions inclusion of
Rs.60,000/- towards future medical treatment expenses and
Rs.1,00,000/- on account of pain and suffering, inconvenience,
frustration, hardship and trauma and further takes exception to
Rs.20,000/- added as counsel fee and Rs.2,000/- as out of pocket
expenses for the counsel, the burden of which has been placed on the
insurer.
3. Having heard the facts and circumstances of the case, all the
above contentions are found to be devoid of any substance. It is noted
that the evidence led before the tribunal clearly showed that the prime
reason for the accident was rash driving of the car. No effort was made
during the inquiry to bring home any contributory negligence on the
part of the claimant.
4. The injuries included "fracture of right inferior ischiopubic
ramus and fracture ischial bone" (page 119 of the tribunal's record).
Keeping in view the nature of the injuries suffered at the age of 51
years by the claimant, the awards as noted above cannot be said to be
excessive.
5. There is, however, merit in the plea about the counsel fee and
out of pocket expenses. The same being not justified, the directions in
the impugned judgment to that effect is set aside.
6. The appeal stands disposed of in above terms.
7. By order dated 27.08.2012, the insurance company had been
directed to deposit seventy five per cent (75%) of the awarded amount
excluding counsel fee and out of pocket expenses. By subsequent
order dated 26.05.2014 it was, however, noted that the awarded
amount had already been realised by the tribunal by attachment.
Therefore, the amount deposited by the insurance company was
allowed to be refunded.
8. The claimant would have the liberty to enforce of the award, if
there is any deficiency, by appropriate proceedings before the tribunal.
9. The statutory deposit shall be refunded to the insurer only after
proof of award having been satisfied is shown.
R.K.GAUBA, J.
NOVEMBER 28, 2017/vk
