Delhi High Court
Savitri Devi (Deceased) Thr Her ... vs Moti Ram & Ors (Tata Aig General Ins ... on 21 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 21, 2018
+ MAC.APP. 408/2017
SAVITRI DEVI (DECEASED) THR HER LRS ..... Appellant
Through: Mr. V.V. Gautam and Mr. Prashant
Dubey, Advocates
versus
MOTI RAM & ORS (TATA AIG GENERAL INS CO LTD)
..... Respondents
Through: Mr. Navneet Goel, Advocate for
Mr. Sameer Nadwani, Advocate
for respondent-Insurer
+ MAC.APP. 415/2017
MADHU ..... Appellant
Through: Mr. V.V. Gautam and Mr. Prashant
Dubey, Advocates
versus
MOTI RAM & ORS (TATA AIG GENERAL INS CO LTD)
..... Respondents
Through: Mr. Navneet Goel, Advocate for
Mr. Sameer Nadwani, Advocate
for respondent-Insurer
+ MAC.APP. 418/2017
LATIKA SHARMA ..... Appellant
Through: Mr. V.V. Gautam and Mr. Prashant
Dubey, Advocates
versus
MAC.APP. 408/2017 Page 1 of 11
MAC.APP. 415/2017
MAC.APP. 418/2017
MOTI RAM & ORS (TATA AIG GENERAL INS CO LTD)
..... Respondents
Through: Mr. Navneet Goel, Advocate for
Mr. Sameer Nadwani, Advocate
for respondent-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above-captioned three appeals pertain to one vehicular
accident, which took place on 23rd October, 2004 and so, with the consent
of learned counsel for the parties, these appeals have been heard together
and are being decided by this common judgment.
2. The above-captioned first appeal is by the legal heirs of a
housewife-Savitri aged 68 years, who had sustained grievous injuries in
this accident and after about four years, she had otherwise died on 4th
February, 2008. The Motor Accident Claims Tribunal (hereinafter
referred to as „the Tribunal‟) has granted compensation of ₹1,06,385/-
with interest @ 9% per annum.
3. The above-captioned second appeal pertains to a 42 years old
housewife-Madhu, w/o of Narender Sharma, who was grievously injured
and had sustained 48% permanent disability in relation to her left ankle
and knee. The Tribunal has assessed the functional disability of injured-
Madhu at 25% and has awarded compensation of ₹3,26,961/- with
interest @ 9% per annum to her.
4. The above-captioned third appeal relates to an 18 years old
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MAC.APP. 418/2017
student-Latika, D/o Narender Sharma, who was grievously injured in this
vehicular accident and due to the injuries sustained by her in this
accident, she had entailed loss of income for a period of four months. The
Tribunal has granted compensation of ₹91,412/- with interest @ 9% per
annum to her. In these appeals, the Tribunal has found that the deceased
and injured persons were travelling in the insured car and the negligence
was of the driver of the offending vehicle, i.e. Jeep, which was not
insured and so, the liability to pay the awarded compensation has been
put upon driver and owner of the offending vehicle i.e. Jeep.
5. The facts, as noticed in the impugned Award, are as under:-
"Brief facts of the case as revealed from the petition are
that on 23.10.2004, the petitioner/injured Smt. Savitri Devi
alongwith her other faimily was going in Indica Car bearing
registration No. DL-4C-M-8846 from Delhi to Khatoo Shamji
at District Sikar, Rajasthan, which car was driven by Sh.
Devender Kumar/R3 at the relevant time at a slow speed and
on the correct side of the road. When at about 8:30 pm, they
reached between Khatoo Shamji and Reengus Road and were
only about 3-4 km. Away from Khatoo Shamji, suddenly a
jeep bearing registration No. RJ-14-3C-3831 (hereinafter
referred to as the "offending vehicle") which at the relevant
time was driven by Sh. Moti Ram/R1 in a rash, negligent and
also zig zag manner came from the front side and it struck
against their Indica Car due to which the petitioner including
various other persons sitting in the said car sustained
injuries. Further, the petitioner was taken to CHC Reengus
hospital at Sikar where the doctors attended her vide IR No.
304-C and after first aid, she was referred to SMS Hospital at
Jaipur, where she remained admitted from 24.10.2004 to
28.10.2004 and even thereafter, she was referred for further
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MAC.APP. 418/2017
treatment to Maharaja Agarsain Hospital, Delhi where she
remained under treatment from 28.10.2004 to 01.11.2004."
6. The Tribunal has relied upon the evidence of Claimants, Injured
persons and other evidence on record to render the impugned Awards.
The breakup of the compensation granted by the Tribunal to legal heirs of
deceased-Savitri is as under: -
Sl. Compensation under various Award amount
No. heads
1. Pain and suffering Rs. 30,000/-
2. Special diet Rs. 5,000/-
3. Conveyance Charges Rs. 5,000/-
4. Attendant Charges Rs. 15,000/-
5. Medical Bills Rs. 51,385/-
6. Loss of Income Nil.
Total Rs. 1,06,385/-
7. The breakup of the compensation granted by the Tribunal to
injured-Madhu is as under: -
Sl. Compensation under various Award Amount
No. heads
1. Loss of Income Rs. 28,940/-
2. Loss of future earning Rs. 1,21,548/-
capacity
3. Pain and suffering Rs. 50,000/-
4. Loss of enjoyment of Rs. 40,000/-
amenities of life
5. Conveyance and special diet Rs. 10,000/-
6. Medical expenses Rs. 66,473/-
7. Attendant charges Rs. 10,000/-
Total Rs. 3,26,961/-
8. The breakup of the compensation granted by the Tribunal to
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MAC.APP. 418/2017
injured-Latika is as under: -
Sl. Compensation under various Award amount
No. heads
1. Pain and suffering Rs. 30,000/-
2. Special diet Rs. 5,000/-
3. Conveyance Charges Rs. 5,000/-
4. Attendant Charges Rs. 20,000/-
5. Medical Bills Rs. 19,836/-
6. Loss of Income Rs. 11,576/-
Total Rs. 91,412 /-
9. In these appeals, Claimants/Injured persons are aggrieved by
impugned Awards, which put the liability on the driver and owner of the
offending vehicle, i.e. Jeep, to pay the awarded compensation. It is
submitted that the deceased and injured persons were third party and so,
Insurer of the insured vehicle is liable to pay the awarded compensation.
Reliance is placed by learned counsel for Claimants/Injured persons upon
an unreported decision of a coordinate Bench of this Court in MAC. APP.
133/2008 titled United India Insurance Co. Ltd. Vs. Alka Mangla & Ors.
rendered on 29th February, 2008. It is further submitted that though Smt.
Savitri had died on 4th February, 2008, but she had died to the injuries
sustained by her in this accident and so, compensation awarded to her is
inadequate. Reliance is also placed upon Supreme Court's decision in
Arun Kumar Agrawal and Another v. National Insurance Company Ltd.
and Others, (2010) 9 SCC 218 to submit that the notional income of
deceased ought to have been made the basis and compensation should
have been determined by applying appropriate multiplier. It is submitted
that „attendant charges‟ of ₹15,000/- granted by the Tribunal to Smt.
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Savitri is inadequate and it needs to be enhanced to ₹96,000/-. Reliance
is placed upon Supreme Court's decision in Kavita Vs. Deepak and
Others, (2012) 8 SCC 604 to seek compensation of ₹3 lacs each under the
head of „pain and suffering‟ and „loss of amenities of life‟. It is submitted
that the „medical expenses‟ incurred on treatment of Smt. Savitri was ₹10
lacs, but the Tribunal has erred in granting „medical expenses‟ of
₹51,000/- only.
10. In the case of Injured-Madhu, it is submitted that in view of
Supreme Court's decision in Arun Kumar (Supra), compensation granted
by the Tribunal on account of disability suffered by Injured-Madhu ought
to have been assessed by taking her notional income to be ₹36,000/- per
annum and multiplier of 15 ought to have been applied. Reliance is
placed upon Supreme Court's decision in Kavita (supra) to seek
„attendant charges‟ of ₹2,000/- per month and while taking her life
expectancy to be 55 years, it is claimed that „attendant charges‟ payable
to Injured-Madhu come to ₹6,50,000/-. To seek compensation of ₹3 lacs
each under the head of „pain and suffering‟ and „loss of amenities of life‟,
reliance is again placed upon Supreme Court's decision in Kavita (supra).
It is further submitted that the „medical expenses‟ incurred on treatment
of Injured-Madhu was ₹10 lacs, but the Tribunal has erred in granting
„medical expenses‟ of ₹66,473/- only. It is next submitted that no
compensation under the head of „recurring medical expenses‟ has been
granted by the Tribunal and so, enhancement of compensation granted to
injured-Madhu sought is to the tune of ₹26 lacs odd.
11. In case of Injured-Latika, it is submitted that she was bedridden for
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a period of about one year, but the Tribunal has erred in assessing her
„loss of income‟ only for a period of four months. It is further submitted
that the Tribunal has erred in not granting any compensation under the
head of „loss of future prospects‟ as she was a bright student, aspiring to
be a Model and so, compensation of ₹5 lacs under the head of „loss of
future prospects‟ is sought. Reliance is also placed upon Supreme Court's
decision in Kavita (supra) to seek compensation of ₹3 lacs under the head
of „pain and suffering‟. It is submitted that the „medical expenses‟
incurred on treatment of Injured-Latika was ₹2.5 lacs, but the Tribunal
has erred in granting „medical expenses‟ of ₹19,000/- odd. It is also
submitted that towards „special diet‟, ₹1.5 lacs ought to have been
granted whereas ₹5,000/- only has been awarded by the Tribunal to her. It
is submitted that due to the injuries suffered by Injured-Latika in this
accident, she has suffered „loss of marriage prospects‟ and so,
compensation of ₹2.5 lacs ought to have been granted under this head,
whereas no compensation has been granted by the Tribunal under this
head.
12. On the contrary, learned counsel for Insurer supports the impugned
Awards and submits that the compensation granted by the Tribunal is just
and proper and these appeals deserve to be dismissed.
13. Upon hearing and on perusal of impugned Awards, evidence on
record and the decisions cited, I find that the Tribunal has rightly
concluded that the negligence was of driver of the offending vehicle, i.e.
Jeep and not of the driver of the insured vehicle, i.e. Indica. Reliance
placed by Claimants' counsel upon decision in Alka Mangla (supra) is
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out of context as the findings in the instant case, on negligence aspect are
unassailable. Since the negligence was of the driver of the offending
vehicle and was not of the driver of the insured vehicle, therefore,
liability cannot be fastened upon the Insurer to pay the awarded
compensation. It is matter on record that Savitri had died after about four
years of this accident and there is no basis to conclude that she died due
to injuries suffered by her in this accident. Therefore, the Tribunal has
rightly assessed the compensation payable to the legal heirs of deceased-
Savitri due to the injuries sustained by her in this accident. It is also
matter of record that deceased-Savitri had not sustained any disability due
to injury caused to her in this accident and so, the Tribunal has rightly not
granted any compensation to her under the head of „loss of amenities of
life‟. In light of the evidence led, the compensation granted to the legal
heirs of deceased-Savitri under the head of „special diet, conveyance
charges, attendant charges and medical bills‟ is found to be adequate and
is thus maintained. Reliance placed by Claimants' counsel upon Supreme
Court's decision in Arun Kumar (supra) and Kavita (supra) is misplaced
as the quantum of compensation under the head of „pain and suffering‟
granted in the said decisions is in altogether different facts. In the instant
case, the compensation of ₹50,000/- granted to the legal heirs of
deceased-Savitri under the head of „pain and suffering‟ is found to be
adequate and is thus maintained. In the considered opinion of this Court,
no case for enhancement of compensation or to shift the liability upon the
Insurer of the insured vehicle is made out.
14. In case of Injured-Madhu, I find that she had sustained 48%
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permanent disability in relation to left ankle and knee. In light of the
evidence on record, I find that the Tribunal has rightly assessed her
Functional Disability at 25% in relation to whole body. Injured-Madhu
was aged 42 years on the day of the accident and she claims to be earning
₹5,000/- per month by doing tailoring work. However, no evidence in
this regard was led and the Tribunal has assessed her income on
minimum wages payable to an unskilled worker. Since Injured-Madhu
was a housewife, therefore, in view of Supreme Court's decision in
Jitendra Khimshankar Trivedi & Ors. v. Kasam Daud Kumbhar & Ors.,
(2015) 4 SCC 237, her income has to be assessed at ₹3,000/- per month
on notional basis. Injured-Madhu was aged 42 years and so, the Tribunal
has rightly applied the multiplier of 14. In view of Supreme Court's
Constitution Bench decision in National Insurance Company Ltd. Vs.
Pranay Sethi & ors., (2017) 16 SCC 680, addition of 25% towards „future
prospects‟ has to be made. Accordingly, compensation payable to
Injured-Madhu under the head of „loss of earning capacity‟ is reassessed
as under: -
₹3,000/- X 12 X 125/100 X 14 X 25/100 =₹1,57,500/-
15. In light of the evidence led by Injured-Madhu, compensation under
the „non-pecuniary heads‟ and „medical expenses‟ as well as „attendant
charges‟ granted by the Tribunal is found to be adequate and is
accordingly maintained. In view thereof, the compensation payable to
Injured-Madhu is reassessed as under: -
Sl. Compensation under various Award Amount
No. heads
1. Loss of Income Rs. 28,940/-
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MAC.APP. 418/2017
2. Loss of future earning capacity Rs. 1,57,500/-
3. Pain and suffering Rs. 50,000/-
4. Loss of enjoyment of amenities Rs. 40,000/-
of life
5. Conveyance and special diet Rs. 10,000/-
6. Medical expenses Rs. 66,473/-
7. Attendant charges Rs. 10,000/-
Total Rs. 3,62,913/-
16. In case of Injured-Latika, aged 18 years, I find that she was a
student and was pursuing graduation and so, the Tribunal has erred in
assessing her income on the basis of minimum wages of an unskilled
worker. Although Injured-Latika has claimed that she was earning
₹4,000/- per month by giving tuition, but there is no tangible evidence in
support of this assertion. Injured-Latika has not suffered any permanent
disability. There is no basis to conclude that Injured-Latika had any
qualification/potential to become a Model and so, the „future prospects‟
of Injured-Latika cannot be gauged. Since Injured-Latika was pursuing
graduation, therefore, her income ought to be assessed on minimum
wages payable to a matriculate, which, at the relevant time, were
₹3342.90/- per month, rounded off to ₹3343/- per month. The Tribunal
has assessed the „loss of income‟ for a period of four months on the basis
of the evidence led. The „loss of income‟ is accordingly reassessed as
under: -
₹3343/- X 4 = ₹13,372/-
17. There is nothing on record to conclude that due to injuries suffered
by Injured-Latika, she had suffered any disfiguration and so, the Tribunal
has rightly not granted any compensation under this head. In the
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considered opinion of this Court, the compensation granted to Injured-
Latika under the „non pecuniary heads‟ is just and proper and so, no case
for enhancement of compensation under the head of „pain and suffering‟,
etc., is made out. Even the compensation under the heads of „special
diet‟, „attendant charges‟, etc. appears to be justified and is thus
maintained. The compensation payable to Injured-Latika is reassessed as
under: -
Sl. Compensation under various Award amount
No. heads
1. Pain and suffering ₹30,000/-
2. Special diet ₹5,000/-
3. Conveyance Charges ₹5,000/-
4. Attendant Charges ₹20,000/-
5. Medical Bills ₹19,836/-
6. Loss of Income ₹13,372/-
Total ₹93,208/-
18. Consequentially, the compensation granted to the legal heirs of
deceased-Savitri is maintained. However, compensation granted to
Injured-Madhu by the Tribunal is enhanced from ₹3,26,961/- to
₹3,62,913/- and compensation granted to Injured-Latika is also enhanced
from ₹91,412/- to ₹93,208/-.
19. With aforesaid modifications in the impugned Awards, the above
captioned three appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 21, 2018
v
MAC.APP. 415/2017
MAC.APP. 418/2017
