Delhi High Court
Iffco Tokio General Insurance Co. ... vs Arjun & Ors. on 4 January, 2018
$~R-706, R-706A
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 4th January, 2018
+ MAC APPEAL No. 1/2013
IFFCO TOKIO GENERAL INSURANCE
CO. LTD. ..... Appellant
Through: Mr. Shoumik Mazumdar, Adv.
versus
ARJUN & ORS. ..... Respondents
Through: Mr. O.P. Mannie & Mr. Manish
Maini, Advs. for R-1.
+ MAC APPEAL No. 223/2016
ARJUN & ORS. ..... Appellants
Through: Mr. O.P. Mannie & Mr. Manish
Maini, Advs.
versus
IFFCO TOKIO GENERAL INSURANCE
CO. LTD. ..... Respondent
Through: Mr. Shoumik Mazumdar, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Arjun (the claimant), then aged 28 years, self-employed as a
tailor, suffered injuries in motor vehicular accident that took place on
27.06.2008, due to negligent driving of motor vehicle described as
Mahindra Champion bearing registration no. DL 1LH 8594 of Smt.
Kanti (the registered owner) by Ashok Kumar (the driver) engaged by
her for such purposes, the said vehicle admittedly being insured
against third party risk for the period in question with Iffco Tokio
General Insurance Company Ltd. (insurer). He instituted accident
claim case (MACT 124/10/08) on 24.07.2008. The tribunal after
inquiry, by judgment dated 13.07.2012, accepted the said case,
holding that the accident had occurred resulting in injuries being
suffered by the claimant, rendering him permanently disabled due to
negligent driving of the said vehicle. It awarded compensation in the
total sum of Rs. 9,69,415/-, directing the insurer to pay with interest @
12 % per annum, calculating it thus:
S.No. Heads Compensation
Pecuniary damages (special
damages)
a) Medical expenses Rs. 1,08,203/-
b) Loss of future income etc. Rs. 2,90,624/-
c) Special diet Rs. 50,000/-
d) Conveyance Rs. 25,000/-
e) Loss of income for six months Rs. 45,588/-
Non-pecuniary damages (general
damages)
f) Pain & sufferings & trauma Rs. 1,50,000/-
g) Loss of amenities & enjoyment Rs. 1,50,000/-
of life
h) Loss of deformity & Rs. 1,50,000/-
inconvenience
Total Rs. 9,69,415/-
2. It may be mentioned here that the insurer while contesting had
raised the defence that there was breach of terms and conditions of the
insurance policy for the reason the driver was not holding a valid or
effective driving licence. It led evidence by examining Abhishek
Kujur (R3W1), its legal executive. The tribunal, however, was not
satisfied with the said evidence and declined to grant exoneration or
recovery rights to the insurer. By the impugned judgment, the tribunal
further directed the insurer to pay Rs. 25,000/- as lawyers' charges and
Rs. 3,000/- as out of pocket expenses to the counsel for the claimant.
3. The insurer questions the above-mentioned award by its appeal
(MAC Appeal No. 1/2013) on the grounds that the non-pecuniary
damages awarded are excessive, the interest levied at 12% is unjust
and the directions for payment of lawyers' charges and out of pocket
expenses were uncalled for. It also reiterates its plea that there was
breach of terms and conditions of the insurance policy on which
account it should have been exonerated.
4. Per contra, the claimant by his appeal (MAC Appeal No.
223/2016) seeks enhanced compensation on the ground that his
functional disability has been wrongly taken as 25% only, which,
given the condition to which he has been reduced, should have been
treated as 50% as affirmed by the disability certificate (Ex.PW-3/A)
issued by board of doctors of Dr. Baba Saheb Ambedkar Hospital of
the Govt. of NCT of Delhi, one of the members of such board (PW-3)
having come in the witness box to prove the necessary facts.
5. The evidence led by the claimant would show that the injuries
suffered by him included multiple fractures in the left lower limb
besides fracture of the left clavicle bone and head injuries. He
underwent prolonged treatment which included surgical procedures
and skin grafting. He not only suffered loss of toes in the left foot but
also restricted movement of the said part of the body, the after-effect
whereof is that he is rendered a case of post traumatic hemiparesis,
such condition having been evaluated by the board of doctors (Ex.PW-
3/A) to be to the extent of 50%. Given this medical opinion, and the
fact that the claimant was earning his livelihood prior to the date of the
accident as a private tailor, it is correct on the part of the claimant to
contend that his functional disability has been under-assessed. In the
opinion of this Court, such condition will have to be treated as
functional disability to the extent of 50% (fifty per cent) which would
mean there has to be an increase in the compensation on account of
loss of future income to the extent of Rs. 2,90,624/-.
6. Given the above facts, the general damages awarded by the
tribunal cannot be said to be excessive. In these circumstances, the
compensation is enhanced to (9,69,415 + 2,90,624) Rs. 12,60,039/-,
rounded off to Rs. 12,61,000/- (Rupees Twelve Lakhs Sixty One
Thousand only). Ordered accordingly.
7. The tribunal has not set out any special reasons why the interest
at the rate of 12% should have been levied. Such rate is undoubtedly
higher than the ordinary.
8. Following the consistent view taken by this Court, the rate of
interest is reduced to 9% (nine per cent) per annum from the date of
filing of the petition till realization. [see judgment dated 22.02.2016
in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi
& Ors.].
9. There being no justification for such inclusion. The directions
for payment of lawyers' charges and out of pocket expenses to the
counsel for the claimant are set aside.
10. The evidence of R3W1 shows that the driver of the offending
vehicle had made available copy of his driving licence. It is clear
from the testimony of said witness examined by the insurer that the
corresponding records of the concerned transport authority at Mathura
having been shifted to its office at Agra, verification of the said
document could not be made. In these circumstances, this Court finds
no good reason why the insurer should succeed in its plea about the
breach of terms and conditions of the insurance policy. It was its
obligation to call for the necessary witness from the concerned office
to prove the requisite facts. The plea is, thus, rejected.
11. By order dated 04.01.2013 in MAC Appeal No. 1/2013, the
insurer had been directed to deposit the entire awarded amount with
upto date interest with UCO Bank, Delhi High Court Branch within
the period specified. By order dated 08.04.2013, 70% of the said
awarded amount was permitted to be released to the claimant. Since
the award has been increased but the rate of interest has been reduced,
the registry will calculate the amount payable to the claimant under
the modified award and release the balance payable to him from out of
the remainder in deposit, refunding excess, if any, to the insurer.
Conversely, if the deposit is deficient, the insurer will be obliged to
pay the remainder of its liability by requisite deposit with the tribunal
within 30 days.
12. The statutory amount, however, shall be refunded to the insurer
after proof is shown of the award having been satisfied.
13. Both the appeals are disposed of in above terms.
R.K.GAUBA, J.
JANUARY 04, 2018
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