Full Text
HIGH COURT OF DELHI
Date of order: 24th July, 2024
50053/2018 THE NATIONAL INSURANCE CO LTD .....Appellant
Through: Mr. Pradeep Gaur, Mr. Amit Gaur
Through: Respondent no. 1 in person.
Mr. Rakesh Raushan, Advocate for R- 3.
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The present appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 challenging the award dated 16th February, 2018 (hereinafter as the ‘impugned award’) passed by the learned Motor Accidents Claims Tribunal, South District, Saket Courts, New Delhi (hereinafter as the ‘Tribunal’) in MAC No. 75690/16.
2. The brief facts of the case are that the respondent no. 1 suffered grievous injuries due to an accident caused by a truck bearing registration no. BR-11A-2043 (hereinafter as the ‘offending vehicle’), which was being driven by respondent no. 2 in a rash and negligent manner. An FIR bearing no. 436/09 under Sections 279/337 of Indian Penal Code, 1860 was also registered against the respondent no. 2 at PS Madhepur for causing grievous injuries to the respondent no. 1.
3. Accordingly, a claim petition bearing no. 75690/16 was filed by the respondent no. 1 under Sections 166 and 140 of Motor Vehicle Act, 1988 before the learned Tribunal, seeking compensation for the grievous injuries sustained by the respondent no. 1 due to the rash and negligent driving of the offending vehicle by respondent no. 2.
4. Pursuant to the completion of proceedings, the learned Tribunal passed the impugned award dated 16th February, 2018 in favor of the respondent no. 1, thereby holding that the respondent no. 2 was driving the offending vehicle in a rash and negligent manner, causing grievous injuries to the respondent no. 1 and awarded Rs. 8,17,100/- to be recoverable from the appellant along with an interest @ 9% per annum from the date of filing of the claim petition.
5. Aggrieved by the impugned award, the appellant filed the instant appeal before this Court, seeking reliefs sought therein.
6. Learned counsel appearing on behalf of the appellant submitted that the learned Tribunal has erroneously passed the impugned award by awarding excessive compensation to the respondent no. 1, as the same is unwarranted based on the evidence on record.
7. It is submitted that the learned Tribunal erred in considering 50% functional disability of the respondent no. 1, as there is enough evidence on record establishing that the respondent no. 1 was disabled prior to the accident and therefore, the compensation awarded under loss of future income is incorrect.
8. It is further submitted that the learned Tribunal failed in awarding medical expenses based on the reimbursement certificate of indoor patient, as the same does not amount to a medical bill, therefore, erroneously awarding medical expenses.
9. In view of the foregoing submissions, it is submitted that the instant appeal may be allowed, and the impugned award be modified.
10. Per contra, the respondent no. 1 appearing in person submitted that the learned Tribunal is correct in awarding the compensation, as the same is given as per the law.
11. It is submitted that the learned Tribunal rightly relied on the reimbursement certificate given by the hospital, as the same consists of the entirety of the expenses incurred by the respondent no. 1 during the treatment.
12. It is submitted that the learned Tribunal has correctly relied upon the disability certificates produced by the respondent no. 1, wherein it reflects that the respondent no. 1 has incurred 58% permanent disability, therefore the compensation under the loss of income is correct.
13. Therefore, in view of the submissions made above, it is submitted that instant appeal being devoid of any merit may be dismissed.
14. Heard both the parties and perused the records.
15. It is the case of the appellant that the award given by the learned Tribunal is excessive and exorbitant in nature, as it did not consider that the respondent no. 1 was a disabled person even before the accident has occured and has taken 50% as functional disability in computing the compensation, thereby awarding it incorrectly. Hence, it has been prayed to modify the impugned award.
16. In rival submissions, it is the contention of the respondent no. 1 that he sustained permanent disability due to the accident and that the learned Tribunal has rightly placed reliance on the disability certificates on record in determining 50% functional disability while computing the compensation. Hence, it is prayed to dismiss the instant appeal.
17. Therefore, the limited question for adjudication before this Court is whether the learned Tribunal erred in passing the impugned award against the appellant, by granting excessive compensation.
18. At this stage, it is apposite for this Court to peruse the findings recorded by the learned Tribunal in its impugned award, the relevant portion of which is as under –
11. Medical Bills: The petitioner has filed on record medical bill of Rs. 98,000/-. I therefore, award Rs. 98,000/- to the petitioner towards medical bills.
12. Pain &Sufferings and Enjoyment of Life: As per the discharge summary of AIIMS Hospital the petitioner was diagnosed with "Non-union fracture distal 1/3rd of right tibia +ILN with broken distal locking screw insitu". He remained hospitalised in AIIMS hospital from 01.02.10 to 16.02.10. He was operated. He has suffered 58% physical impairment in relation to his Right Lower Limb. Looking into the injuries and the disability suffered by tine petitioner, I award him Rs. 1,00,000/- towards pain and sufferings and enjoyment of life.
13. Special Diet. Conveyance & Attendant charges: The petitioner has not filed on record any bill pertaining to special diet, conveyance and attendant charges. However, looking into the injuries and disability of the petitioner I award him Rs. 10,000/- towards special diet, Rs. 10,000/- conveyance and Rs. 15,000/- towards attendant charges. So, the total award under this head comes to Rs. 35,000/-. Awarded accordingly.
14. Loss of Income/Future Income: The petitioner has stated that at the time of accident he was a student of LLB Part-1. He further stated that he has done M.A., B.Ed, and LL.B. He is a practicing lawyer at Saket Courts complex. During crossexamination he admitted that he was a student at the time of accident and was not earning any amount. The petitioner has filed on record documents pertaining to his educational qualification. The petitioner has completed his LLB. in the year
2013. Therefore, this Court has no option but to take minimum wages of a 'Graduate' which on the date of accident were Rs. 4,713/-. The petitioner has suffered 58% permanent disability in relation to his Right Lower Limb. He has filed on record a letter issued by Saket Bar Association in which It is stated that the petitioner is enrolled with Bar Council of Delhi and Is a Member of Saket Bar Association. It is further stated in the said certificate that he has been continuously practicing as an Advocate at District Courts, Saket, New Delhi. He has also filed on record his l-Card Issued by Bar Council of Delhi. Therefore, it is established on record that the petitioner is a practicing lawyer, at Saket Courts Complex, New Delhi. The work of lawyer is such that he has to move very frequently for his day to day work. Sometimes he also has to stand for a longtime for addressing arguments in cases. The disability of the petitioner would definitely affect his working and future prospects. It was held in the case of "Mohan Soni Vs. Ram Avtar Tomar &Ors. I(2012) ACC 1 (SC)" that in the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. Reference was also made of the case "Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343". Thus, I take functional disability of the petitioner as 50%. As per the educational certificate, his date of birth is 05.02.1987. The accident took place on 11.11.2009. Therefore, he was 22 years of age at the time of accident. Taking a multiplier of „18‟, the future loss of income comes to Rs. 4,713 X 12 X 18 X 50% = Rs. 5,09,004/- which is rounded off to Rs. 5,09,100/-. I therefore, award Rs. 5,09,100/- to the petitioner towards loss of income/future Income.
15. Loss of Amenities: Due to the permanent disability, the petitioner would not be able to participate in the normal activities of his dally life to pursue his talents, recreation interest, hobbles and evocations. The Injuries would also have an affect on his social life. I therefore, award Rs. 75,000/- to the petitioner towards loss of amenities.
16. Thus, the total compensation awarded in favour of the petitioner is assessed as under:
19. Upon perusal of the impugned order, it is made out that the learned Tribunal had placed reliance on the principle of preponderance of probabilities and evidence on record, while holding that the respondent no. 2 is liable for the rash and negligent driving of the offending vehicle with a high speed. Accordingly, the learned Tribunal deemed it appropriate to grant compensation award of Rs. 8,17,100/- to the respondent no. 1, which is to be recoverable from the appellant with an interest @ 9% from the date of filing of claim petition.
20. While computing the compensation award, the learned Tribunal has placed reliance on the documents placed on record such as the reimbursement certificate, disability certificates, degree certificates etc. for determining the medical expenses, incurrence of functional disability, minimum wages of graduate etc., in order to arrive at a just and reasonable compensation.
21. While awarding the compensation under the non-pecuniary heads such as pain & suffering; loss of amenities; conveyance and special diet, the learned Tribunal has predominantly relied on the circumstantial difficulties endured by the respondent no. 1 due to his permanent disability.
22. In order to determine whether the compensation awarded by the learned Tribunal was reasonable, this Court deems it appropriate to address the issue of disability of the respondent no. 1 in detail.
23. At this juncture, it is pertinent to refer the testimony of the respondent no. 1/PW-1, wherein it was stated that the respondent no. 1 was visiting an agricultural fare organized by the government and as he reached the gate of the stadium, the offending vehicle being driven in a very high speed hit the respondent no. 1, causing him grievous injuries. It was also stated that the respondent no. 1 was taken to the Sadar Hospital, Madhepura for first-aid treatment and was later shifted to AIIMS, Delhi for better treatment of his injuries. In his cross examination, with respect to the disability incurred, PW-1 admitted that he has previously met with an accident in the year 2007 wherein a rod was inserted in his right leg. It was also admitted that the respondent no. 1 got his disability reassessed in the year 2013 at Pt. Madan Mohan Malviya Hospital. Therefore, it is the case of the respondent no. 1 that he sustained grievous injuries due to the offending vehicle being driven in a rash and negligent manner and that he incurred permanent disability due to the accident caused.
24. In light of this, it is imperative for this Court to analyse the medical documents and disability certificates placed on record such as the Discharge Certificate of the AIIMS, Delhi, disability certificates granted in the years 2002, 2013 and 2017, wherein permanent disability of 65%, 42% and 58% were recorded.
25. Upon perusal of the aforementioned documents and certificates, this Court observed that in the Discharge Summary, it was recorded that the pain in the right leg has been experienced by the respondent no. 1 since past 2 years from the date of the discharge summary. Moreover, with of multiple disability certificates placed on record which also include certificate prior to the accident, this Court referred the matter to the Medical Superintendent, AIIMS, New Delhi vide order dated 1st November, 2023 and directed to constitute a Board of Doctors, to physically examine the respondent no. 1 and ascertain his permanent disability and opine whether the same has been caused by polio or by the motor vehicle accident. Accordingly, AIIMS submitted the report dated 2nd July, 2024 stating that the respondent no. 1, had a permanent disability of 65%, however, the current disability has been determined as 78% temporary disability, which is inclusive of pre-existing disability as well as post-accident injury.
26. The object of awarding the compensation to the claimant must be based on the principle of just and reasonableness, ensuring that the claimant is put back into their earlier position. The said principle has been discussed by the Hon’ble Supreme Court in the case of The Divisional Controller, KSRTC vs. Mahadeva Shetty and Ors., 2003 INSC 357, wherein it was observed that the intent of granting compensation is to put the claimant back into the position prior to the accident. The relevant portion of the judgement is reproduced hereunder –
27. Therefore, the aim of awarding compensation to the victim/ claimant is to ensure that they are placed in a similar position as they were before the occurrence of the accident and that the Courts need to award just and reasonable compensation in light of the facts and circumstances.
28. The extent of liability of a negligent person has been further discussed by the High Court of Gujarat in the case of Popatlal Parsottamdas Shah vs. The Gujarat State Road Transport Corporation and Ors., MANU/GJ/0241/1981, wherein it specifically dealt with the pre and post injuries sustained due to the accidents. The relevant paragraph has been reproduced as follows – “10. Another aspect we mention it because it has a direct bearing on the decision of this case-is that the Defendant (wrong-doer) is entitled, as the saying goes, to take the Plaintiff "as he finds him"; that may be to his advantage or disadvantage. Therefore, if it is proved that prior to the accident the claimant was not a fit or-able-bodied man but had some pre-existing disability or weakness which had caused his "devaluation", in the sense that it had produced a general reduction or his capacity to do things, to earn money and to enjoy life, that would be a relevant factor in assessment of damages when he claims them after suffering the accidentinjury. The tortfeasor would be responsible for the additional devaluation caused to him, he would only have to pay for the additional loss to the claimant by reason of the accidentinjury…”
29. It has been observed by the Gujarat High Court, in the aforesaid judgment, that the extent of liability of the negligent person is only pertaining to the wrongdoer’s act of negligence and therefore, he is responsible to compensate the loss caused due to the very negligent act, now adverting to the merits of instant appeal.
30. Upon perusal of the report dated 2nd July, 2024 filed by the medical board, it is observed that the respondent no. 1 was already suffering 65% permanent disability prior to the accident and is currently suffering 78% temporary disability, which is inclusive of the pre-existing disability as well as the disability incurred in the motor vehicle accident. The nature of the disability has also been reduced from permanent to temporary.
31. Upon perusal of the principles laid down in The Divisional Controller, KSRTC vs. Mahadeva Shetty and Ors.(supra), this Court is of the opinion that the compensation awarded to the respondent no. 1 must be so awarded that the respondent no. 1 is placed back to the position prior to the accident. The learned Tribunal has erred in considering 58% permanent disability and 50% functional disability, not knowing that the respondent NO. 1 was disabled even prior to the accident.
32. Moreover, this Court, placing reliance on the observations given in the case of Popatlal Parsottamdas Shah vs. The Gujarat State Road Transport Corporation and Ors (supra), herein calculates the disability incurred by the respondent no. 1 after the accident so as to determine a just and reasonable compensation.
33. Therefore, considering the AIIMS report dated 2nd July, 2024, it has been calculated that there is an increase of 20% disability (temporary) in respondent no. 1 due to the occurrence of accident [(78-65)/65 x 100 = 20%]. In other words, the respondent no. 1 has incurred 20% temporary disability due to the accident, which is independent of his pre-existing disability. Accordingly, for the convenience of computing the compensation, this Court takes the value of 20% as functional disability. The new compensation accorded under the head of loss of future income is Rs. 2,03,601.60 [Rs. 4713 (income per month) x 12 (months) x 18 (multiplier) x 20% (functional disability)]
34. In view of the above, the total compensation payable to the respondent no. 1 by the appellant is re-determined as under: S.NO.
PARTICULARS AMOUNTS
1. Medical Expenses Rs.98,000/-
2. Pain & Suffering & Enjoyment of Life Rs. 1,00,000/-
3. Special Diet, Conveyance & Attendant Rs. 35,000/-
4. Loss of future income Rs. 2,03,601.60/-
5. Loss of Amenities Rs.75,000/- TOTAL Rs. 5,11,602/- (round off)
35. Considering the observations made hereinabove, this Court deems it appropriate to modify the impugned award passed by the learned Tribunal, whereby the compensation under the head of loss of future income is computed incorrectly. Accordingly, the total compensation awarded to the respondent no. 1 is calculated as Rs. 5,11,602/-.
36. In view of the foregoing discussions of facts and law, the impugned award dated 16th February, 2018 passed by the learned Motor Accidents Claims Tribunal, South District, Saket Courts, New Delhi in MAC NO. 75690/16 is modified as per the aforesaid reasons. The instant appeal stands partly allowed.
37. The appellant is directed to pay the compensation amount of Rs. 5,11,602/-, to the appellant within thirty days of receipt of this order, after deducting the amount already paid/deposited.
38. Accordingly, the instant appeal is disposed of along with the pending applications, if any.
39. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J JULY 24, 2024 rk/sm/av