MAC APP. 629/2010. Case: Oriental Insurance Co. Ltd. Vs Mamta Kumari & Ors. High Court of Delhi (India)
| Case Number | MAC APP. 629/2010 |
| Counsel | For Appellant: Ms. Manjusha Wadhwa, Adv. and For Respondents Mr. Vijay Wadhwa, Adv. and Mr. Ranvir Vats, Adv. |
| Judges | Mr. G. P. Mittal, J. |
| Issue | Code of Civil Procedure, 1908 - Rule 33; Motor Vehicles Act, 1988 - Sections 149(2), 149(2)(a)(i)(ii), 149(2)(a)(ii), 158, 166 |
| Judgement Date | September 06, 2012 |
| Court | High Court of Delhi (India) |
Judgment:
G.P. Mittal, J.
1. This Appeal is directed against a judgment dated 23.07.2010 passed by the Motor Accident Claims Tribunal (Claims Tribunal) whereby a compensation of `10,27,636/- was awarded in favour of Mamta Kumari, the First Respondent for having suffered injuries in a motor vehicle accident which occurred on 02.06.2008. As per the averments made in the Claim Petition on 02.06.2008 at about 10:30 pm the First Respondent along with other persons was proceeding to Baba Vadbhag Singh Mandir, Mairi, Una (H.P.) for holy darshan in Tata Qualis No.DL-5C-B-4690. The Qualis was being driven by the Respondent Ravi Kant in a rash and negligent manner. On account of rash and negligent driving, the Qualis struck against a pavement, overturned and fell into a pit, as a result of which the occupants of Qualis including the First Respondent suffered injuries.
2. The injuries in the case of the First Respondent were very serious; she suffered severe head injuries (multiple haemorrhagic contusions), injuries on the face, fracture on left hand and abrasions all over her body. She was immediately removed to Civil Hospital, Roop Nagar (Punjab) which was close to the place of accident. Since adequate treatment was not available in the Civil Hospital, she was shifted to PGI Chandigarh on the same day. The First Respondent went into coma and was, therefore, admitted in NINS Brain and Spine Hospital, Sector 34, Chandigarh on 04.06.2008 where subclavian cannulation was done and she was put on ventilator. On 07.06.2008, tracheostomy was done; on 08.06.2008 the MRI taken revealed that there were multiple haemorrhagic contusions. She (the First Respondent) was again put on ventilator and was discharged on 11.07.2008 with advice to be on semi solid diet and to take physiotherapy as her left portion was still paralyzed. The First Respondent was issued a disability certificate Ex.P1/70( Ex.PW2/A) to the effect that she was a case of quadriparesis and her physical disability was 75% in respect of her whole body.
3. In the Claim Petition, it was averred that she was a student of B.Com. final year and could not pursue her studies on account of injuries suffered. During evidence, it was brought on record that she had completed her B.Com. final year. The First Respondent claimed that there was an expenditure of `3,50,000/- on her treatment; she had to take a special diet and physiotherapy; there was expenditure on conveyance; she had to engage an attendant and was unable to work at all on account of the permanent disability. The Claims Tribunal, as stated earlier, awarded a compensation of `10,27,636/-, which is tabulated hereunder:
| Sl.No. | Compensation under various heads | Awarded by the Claims Tribunal |
| 1. | Medicines and Medical Treatment | `2,25,507/- |
| 2. | Loss of Earning Capacity due to Disability | ` 6,72,129/- |
| 3. | Pain and Suffering | ` 50,000/- |
| 4. | Loss of Marriage Prospects | ` 50,000/- |
| 5. | Conveyance, Special Diet and Attendant | ` 30,000/- |
| Total | ` 10,27,636/- |
4. The finding on negligence is not challenged by the Appellant Insurance Company. The driver and the owner of Tata Qualis have not filed any Appeal, thus the finding on negligence has attained finality.
5. There is twin challenge to the impugned judgment. First, that the compensation awarded towards loss of earning capacity is on the higher side, and second that the Tata Sumo No.DL-5C-B-4690 was being used for hire and reward, yet instead of exonerating the Appellant Insurance Company of its liability to pay the compensation, it was made liable to pay the compensation with a right to recover the same from Respondents No.2 and 3.
6. The finding with regard to the breach in the terms of the policy reached by the Claims Tribunal and granting of recovery rights against Second and Third Respondent has also not been challenged by the owner and driver. (Respondents No.2 and 3).
7. During inquiry before the Claims Tribunal, the First Respondent examined Dr. Naresh Chandra (PW2), In-charge Orthopaedics, Guru Gobind Singh Government Hospital, Raghubir Nagar, Delhi. He proved the disability certificate Ex.PW1/70 declaring the First Respondent to be permanently disabled to the extent of 75% in relation to her whole body. He testified that due to this disability, the First Respondent would not be able to do normal work, to move, to sit and get up independently and climb the stairs without any assistance. The Claims Tribunal, apart from awarding compensation towards treatment on proof of actual bills, awarded a compensation of `50,000/- towards pain and suffering, `50,000/- towards loss of marriage prospects. No compensation was awarded towards disfigurement and loss of amenities in life. I was, prima facie, of the view that the compensation awarded was inadequate and niggardly keeping in view the injuries suffered and the condition of the First Respondent. Therefore, I directed the parties to address their argument as this appeared to be a case for enhancement of compensation.
8. It is urged by the learned counsel for the Appellant Insurance Company that the First Respondent has not filed any Cross-Objections or Cross-Appeal and, therefore, this Court is not empowered to enhance the compensation. It is urged that the compensation awarded towards loss of earning capacity to the extent of 100% is excessive as the First Respondent had suffered disability of only 75%. It is contended that the First Respondent was vacillating her stand in as much as that in the Claim Petition it was averred that she was a student of B.Com. final year at the time of the accident, whereas during evidence a case was set up that she has completed her graduation in commerce.
9. Before dealing with the quantum of compensation, I would first advert to the question whether there could be enhancement of compensation in a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (the Act) or in an Appeal filed by the driver/owner/Insurance Company without filing any Cross-Objections?
10. Section 166 of the Motor Vehicles Act, 1988 (the Act) enjoins payment of just compensation. In General Manager, Kerala Road Transport Corporation, Trivandrum v. Susamma Thomas & Ors., (1994) 2 SCC 176, the Supreme Court held as under: -
5......The determination of the quantum must answer what contemporary society "would deem to be a fair sum such as would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing". The amount awarded must not be niggardly since the law values life and limb in a free society in generous scales'. All this means that the sum awarded must be fair and reasonable by accepted legal standards.
11. In Rattan Lal Mehta v. Rajinder Kapoor & Anr., 1996 ACJ 372, a Division Bench of this Court speaking through the Hon'ble Chief Justice held that full and fair compensation has to be paid for pecuniary and non-pecuniary damages and not as a matter of solace. Non-pecuniary damages cannot be kept low because pecuniary damages are high. It was held that there should not be generally any discrimination between rich and poor victims for evaluating non-pecuniary damages. The Division Bench held that claims under different sub-heads can be altered but the compensation more than the amount claimed cannot be awarded. Para 24 of the report is extracted hereunder:
24. It is also now settled that though claimants might have estimated in the pleadings different sums under different sub-heads, it is still open to the Court to award higher under one sub-head or lower under another, than claimed, so long as the award does not exceed the total amount claimed. Such a principle was laid down in Bai Nanda v. Shivabhai Shankarbhai Patel 1966 ACJ 290 Gujarat), (in fact, that was a case of murder), Judgment was by J.B. Mehta and M.V. Shah, JJ. The adjustment was between claims towards loss to dependency and loss to the estate. The same principle was extended to claims in injuries cases in Babu Mansa v...
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