Delhi High Court
Iffco Tokio General Insurance Co ... vs Rakesh Kohli & Ors on 12 September, 2017
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th September, 2017
+ MAC.APP. 750/2016
IFFCO TOKIO GENERAL INSURANCE CO LTD
..... Appellant
Through: Ms. Harsh Lata, Advocate for
Ms. Shantha Devi Raman,
Advocate
versus
RAKESH KOHLI & ORS ..... Respondents
Through: Mr. S.N. Parashar, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent (claimant) was riding on motorcycle
bearing registration No.DL-10SA-9036 with his brother Govind from
Bawana to Rohini on 13.05.2011 when, in the area of police picket
close to Khera Khurd Canal, it was involved in a collision with car
make Hyundai bearing registration No.DL-8CN-6016 (the car),
coming from the opposite direction. As a result of the collision he fell
down and suffered injuries. Accident claim case (Suit No.260/2011)
was instituted by him to seek compensation under Section 166 of the
Motor Vehicles Act, 1988 on 21.09.2011, in which driver, owner and
insurer of the car respectively were impleaded as party respondents,
the last (insurer) now being the appellant before this court, the said
driver and owner of the car having been shown in the array of appeal
as second and third respondents. The Tribunal held inquiry and on the
basis of evidence led, by judgment dated 19.05.2016, upheld the claim
for compensation on the principle of fault liability holding the car
driver responsible for the accident. It awarded compensation in the
total sum of Rs.10,22,000/- (rounded off figure), calculating it thus:-
Sl.No. Head Amount in (Rs.)
1. Medical expenses 8,331/-
2. Loss of earnings during treatment 38,532/-
3. Loss of future earnings 6,55,044/-
4. Special diet 25,000/-
5. Conveyance 25,000/-
6. Pain and suffering 1,00,000/-
7. Loss of enjoyment of life 1,50,000/-
8. Cost of proceedings 20,000/-
Total 10,21,907/-
2. The liability to pay the said amount of compensation has been
fastened by the tribunal on the insurer with interest @ nine per cent
(9%) per annum.
3. The insurer, by the appeal at hand, has argued that the claimant
was guilty of contributory negligence in as much as the evidence
would show that the accident had occurred when both the vehicles
colliding head-on. This plea must be rejected for the simple reason
that there cannot be a thumb rule that in case of two vehicles colliding
head-on, the driver of each is responsible for contributory negligence.
In order to bring home the case of contributory negligence, the
evidence must show that there was culpable omission in taking proper
care also on the part of the driver who alleges the other person to be
responsible. In the present case, during the cross-examination of the
claimant, who appeared as PW-1 there was not even a remote
suggestion given to him that his motorcycle was moving in the wrong
lane. In these circumstances, the plea must be rejected.
4. The next contention urged by the insurer is that though the
claimant had proved that he had suffered multiple fractures including
fracture in the spinal column, his disability as certified by the board of
doctors (Ex.PW-1/4), of Dr. Baba Saheb Ambedkar Hospital of Govt.
of NCT of Delhi, could not have been treated as equivalent to
functional disability. Reliance is placed on the decision of the
Supreme Court in Raj Kumar vs. Ajay Kumar & Anr., (2011) 1 SCC
343, the grievance being that the tribunal has not taken into
consideration the nature of avocation so as to reach the conclusion that
the claimant had suffered functional disability to the extent of fifty per
cent (50%), same as the medical opinion about the disability in
relation to the upper and lower limbs.
5. The argument to above effect is wholly misplaced and indicates
the insurer has not properly appreciated the reasons set out by the
tribunal in the impugned judgment. Though it must be conceded that
the articulation by the tribunal on this aspect could and should have
been more elaborate, it cannot be ignored that the disability certificate
shows the claimant is a case of "cervical spine injury with left side
hemiparesis" the disability being 50% permanent in relation to the
both upper and lower limbs. With paralysis of half side of the body,
keeping in view the nature of avocation (supervisor in a factory where
he was employed at the relevant point of time), the assessment of the
tribunal that functional disability was 50% appears to be fair and,
therefore, does not call for any interference.
6. The tribunal has added Rs.20,000/- as costs of proceedings
within its judicial discretion. Reliance on decision of this Court in
ICICI Lombard General Insurance Company Limited vs. Kanti Devi &
Ors., MAC APP.645/2012, decided on 30.07.2012 concerning
"counsel fee" is misplaced.
7. The appeal is, thus, dismissed with costs of Rs.25,000/-. The
statutory amount deposited by the appellant insurance company shall
stand forfeited as costs to be remitted to the Delhi High Court Legal
Services Committee as costs awarded in its favour.
8. The insurer had been directed by order dated 14.09.2016 to
deposit the entire awarded amount with interest with the UCO Bank,
Delhi High Court and out of such deposit fifty per cent (50%) was
allowed to be released to the claimant in terms of order dated
19.04.2017. The balance kept in fixed deposit shall also now be
released to the claimant in terms of the impugned judgment.
9. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 12, 2017/vk
