Delhi High Court
The New India Assurance Co Ltd vs Harak Singh Rawat & Ors. on 30 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 30, 2018
+ MAC. APP. 254/2013
THE NEW INDIA ASSURANCE CO LTD .....Appellant
Through: Mr. Pankaj Singh Thakur,
Advocate for Mr. Sameer Nandwani, Advocate
versus
HARAK SINGH RAWAT & ORS. .....Respondents
Through: Mr. Aditya Gaur and Mr. Parveen
Dutt, Advocates
+ MAC. APP. 1182/2013
HARAK SINGH RAWAT & ORS. .....Appellants
Through: Mr. Aditya Gaur and Mr. Parveen
Dutt, Advocates
Versus
THE NEW INDIA ASSURANCE CO LTD AND
ANR .....Respondents
Through: Mr. Pankaj Singh Thakur,
Advocate for Mr. Sameer Nandwani, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 21st November, 2012 grants compensation of
`3,56,100/- with interest @ 9% per annum to injured-Harak Singh, aged
39 years, on account of grievous injury suffered by him in a vehicular
accident, which took place on 4th September, 2004.
2. In the above captioned first appeal, Insurer pleads lack of
negligence of driver of Insured vehicle i.e. car in question and seeks
exoneration, whereas in the above captioned second appeal, enhancement
of compensation is sought by Injured.
3. Since both the appeals arise out of common impugned Award,
therefore, with the consent of learned counsel for the parties, these
appeals have been heard together and are being decided by this common
judgment.
4. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Briefly, the facts are that on 04.09.04, the
petitioner was coming from his office at Defence Colony to
his house on a 2-wheeler scooter bearing no. DL 3S Y
1553. At about 9.00 PM when he reached near Qutab
Hotel, a car make Honda City bearing no. CH 01 U 0227
being driven by respondent no. 1 at a high speed and in a
rash and negligent manner came from the opposite side
and hit on the right of his scooter. It thereafter collided
with a DTC bus bearing no. DL 1P B 1008 which was
behind the petitioner‟s scooter. The petitioner fell down
and sustained injuries. He was removed to Sita Ram
Bhartia Institute of Science and Research where his MLC
was prepared. He was thereafter, transferred to Indian
Spinal Injuries Centre. A case was registered vide FIR
446/04 at the police station Hauz Khas. The petitioner was
39 years of age. He used to work with AZ Datamal (Pvt.)
Ltd. and get salary of Rs. 12,000/- p.m. Respondent no. 3
was the owner of the Honda City car. Respondent no. 2
was the driver of the DTC bus which was owned by
respondent no. 4. Respondent no. 5 was the insurer of the
Honda City car."
5. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as "the Tribunal") has relied upon evidence of
injured and other documentary evidence on record. The breakup of
compensation awarded by the Tribunal is as under:-
Medical expenses ` 2,87,000/-
Pain and sufferings and ` 30,000/-
Enjoyment of Life
Special Diet, Conveyance & ₹ 19,000/-
Attendant
Loss of Income ₹ 20,100/-
Total ` 3,56,100/-
6. Learned counsel for Insurer assails impugned Award on the ground
that there was no negligence on the part of driver of insured car. To
submit so, it is pointed out that the initial version of the Injured is on the
fact that the accident in the question had taken place due to negligence of
the DTC bus driver. It is submitted that the charge-sheet has been filed
against the driver of the DTC bus and so, Insurer ought to be exonerated
from paying the awarded compensation. In the alternative, it is submitted
that at best it is the case of contributory negligence of DTC bus driver and
driver of the insured car. So, it is submitted that the impugned Award
deserves to be set aside qua Insurer.
7. On the contrary, learned counsel for Injured supports the impugned
Award and submits that the quantum of compensation granted is
inadequate and needs to be enhanced. Attention of this Court is drawn to
Salary Certificate (Ex. PW1/Q) to submit that on the day of the accident,
Injured was drawing salary of ₹12,000/- per month and the Tribunal has
erred in observing that no document regarding income of the Injured has
been placed on record. So, it is submitted that the compensation on
account of „loss of income‟ is required to be reassessed in light of the
aforesaid Salary Certificate. It is pointed out by learned counsel for
Injured that Injured had remained in hospital for twenty days and was
bed-ridden for about nine months and so, the compensation granted under
the "non pecuniary heads" ought to be suitably enhanced.
8. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that Injured (PW-1) in his cross-examination has
categorically deposed that the insured car was coming from the front side
at high speed and hit the right side of the scooter and the DTC bus was
behind injured's scooter. The injured has denied the suggestion that his
scooter was hit by the DTC bus. In view thereof, I find that no case for
grant of recovery rights to the insurer is made out.
9. In view of the evidence of injured (PW 1), the site plan of the spot
i.e. the place of accident (Ex. PW 1/B), I find that it is a case of head-on
collision and the negligence was of driver of insured vehicle. From the
evidence on record, plea of contributory negligence does not stand
substantiated. What has been said during the course of police
investigation, has not been put to the injured in the cross-examination and
so, on this ground no benefits accrues to the Insurer. The „Mechanical
Inspection Report‟ on record supports the findings returned by the
Tribunal on the negligence aspect.
10. As regards the "loss of income", I find that the Tribunal has erred
in not relying upon the Salary Certificate (Ex PW 1/Q) as this certificate
remains unchallenged in cross-examination of the injured. In the face of
the aforesaid Salary Certificate, the compensation payable on account of
"loss of income", is reassessed as under:-
₹12,000/- X 6 = ₹72,000/-
11. The compensation granted by the Tribunal under the head "pain
and sufferings & enjoyment of life" needs to be properly assessed as the
injured had remained bed ridden for a period of six months due to the
injury sustained in this accident. In face of evidence on record, the
compensation under head of "pain and suffering" granted to Injured is
enhanced from ₹30,000/- to ₹50,000/-. Accordingly, the compensation
payable to Injured is reassessed as under: -
Loss of Income `72,000/-
Medical expenses `2,87,000/-
Special diet etc. `19,000/-
Pain and suffering `50,000/-
Total `4,28,000/-
12. Consequentially, the compensation awarded by the Tribunal stands
enhanced from `3,56,100/- to `4,28,000/- with interest @ 9% per annum.
The enhanced compensation be deposited by Insurer with the Registrar
General of this Court within six weeks from today. The enhanced
compensation be disbursed in the manner as indicated in the impugned
Award. Statutory deposit, if any, be refunded to Insurer.
13. With aforesaid directions, both these appeals are accordingly
disposed of.
(SUNIL GAUR)
JUDGE
JULY 11, 2018
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