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Civil Appeal Nos. 5370-5372 of 2013 (Arising out of SLP (C) Nos. 5649-51 of 2012). Case: Rekha Jain Vs National Insurance Company Ltd. and Ors.. Supreme Court (India)

Judgment Cited authorities 1 Cited in 8 Precedent Map Related
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Case NumberCivil Appeal Nos. 5370-5372 of 2013 (Arising out of SLP (C) Nos. 5649-51 of 2012)
CounselFor Appellant: Sukumar Pattjoshi, Sr. Adv., S.K. Dubey and Sibo Sankar Mishra, Advs. and For Respondents: S.L. Gupta, Ram Ashray and Shyam Sunder Gupta, Advs.
JudgesG.S. Singhvi and V. Gopala Gowda, JJ.
IssueMotor Vehicles Act, 1988 - Sections 149(2), 170
Citation2013 ACJ 2161, 2013 (5) AWC 4353 SC, JT 2013 (11) SC 42, 2013 (4) LW 314, 2013 (6) MLJ 477, 2013 (4) MPLJ 546, 2013 (9) SCALE 752, 2013 (8) SCC 389, 2014 (1) WBLR (SC) 347
Judgement DateAugust 01, 2013
CourtSupreme Court (India)

Judgment:

V. Gopala Gowda, J.

  1. Leave is granted by this Court vide order dated 02.07.2013 after condoning the delay in filing the special leave petitions.

  2. These appeals are directed against the judgment, award and orders dated 24.2.2011 passed in MACA No. 580 of 2007, MACA No. 846 of 2007 and dated 10/03/2011 in MC No. 386 of 2011 in MACA No. 580 of 2007 of the High Court of Orissa at Cuttack allowing the appeal of the Insurance Company and dismissing the appeal of the Appellant by which she has prayed to set aside the impugned judgment, award and order and has further prayed for enhancement of compensation by award of just and reasonable compensation allowing the appeals urging various facts and legal contentions.

  3. The necessary brief facts for the purpose of appreciating the rival factual and legal contentions urged in these appeals are stated as under:

    On 17.08.2001 the Appellant was driving a Maruti Car bearing Regn. No. OR 15 D-9005 by which she was going along with her mother Grace Jain from Sambalpur towards Cuttack when the accident occurred. A truck bearing Regn. No. MP 23 D-0096 coming from the opposite direction from Cuttack towards Sambalpur hit the car which resulted in the instantaneous death of the mother of the Appellant and the Appellant received grievous injuries to her body. She was admitted to the VSS Medical College Hospital, Burla, Sambalpur and subsequently, she had undergone treatment at different Nursing Homes both at Cuttack and in the State of Kerala.

  4. On account of the accident, grievous injuries were sustained by the Appellant on the right side of her face which left permanent scars and caused disfiguration of her face and other parts of her body including her leg. She underwent a number of surgeries due to grievous injuries sustained by her. She underwent treatment from 18.08.2001 to 10.10.2001 at Kalinga Hospital and later on, in different Nursing Homes/hospitals. The District Medical Board issued a certificate dated 24.02.2006 to the Appellant certifying that she is suffering from 30% permanent disability. The Appellant has approached the Motor Accident Claims Tribunal (for short 'MACT') at Sambalpur by filing a claim petition No. 119 of 2002 with a request to award just and reasonable compensation.

  5. The Respondents herein, the owner of the vehicle and the insurer were impleaded and after service of summons on them they filed their statement of objections disputing the claim of the Appellant. The owner of the vehicle has admitted the accident and has also stated that the motor vehicle involved in the accident is covered by the insurance policy which was valid up to 30.11.2001. He has further categorically stated that the driver who drove that truck had a valid licence. The Respondent Insurance Company in its statement of objections denied its liability on the ground that the accident did not take place on account of rash and negligent driving of the driver who drove the offending vehicle, but was due to a motor cyclist who came in front of the truck on account of which the accident took place. It had further denied the various claims of the Appellant.

  6. The case went for trial and on behalf of the Appellant, three witnesses were examined including the Appellant and documents were produced in justification of her claim. Both the owner and the Insurance Company have not adduced evidence in justification of their defence taken in their statement of objections. The Motor Accidents Claims Tribunal, on proper appraisal of evidence on record, has answered the contentious issues in favour of the Appellant holding that the accident took place on account of rash and negligent driving of the truck by its driver. It is further held by the Tribunal that the Appellant is entitled to compensation and awarded Rs. 23,51,726/- both under the heads of pecuniary and non-pecuniary damages with interest @ 6% per annum from the date of filing of the claim application i.e. 30.03.2002 till the date of payment. Aggrieved by the judgment and award of the Tribunal, both the Insurance Company and the Appellant filed appeals before the High Court of Orissa in Appeal No. 580 and MACA 846 of 2007 respectively. The appeal of the Insurance Company was allowed by reducing the compensation from 23,51,726/- to Rs. 14,00,000/- after finding fault with the Tribunal in awarding a sum of Rs. 17,51,726/- towards pecuniary damages by accepting the vouchers, hospital bills, receipts which have not been marked as exhibits in evidence on behalf of the Appellant. Though, the compensation awarded towards the pecuniary loss for the medical expenses, treatment charges and the purchase of medicines, supported by the documentary evidence, that is, bills, receipts, cash memos and vouchers, as per Exhs. 26-28 series worth Rs. 2,07,713/- and other documents cash memos, hospital bills and receipts etc. were marked as exhibits in the evidence, some of the hospital bills and receipts worth Rs. 5,72,000/-, though available on record, have not been marked as evidence to show that the Appellant had also incurred medical expenses amounting to Rs. 5,72,000/-. The Tribunal has taken into account all those documents on record as evidence by marking them as exhibits. However, only a sum of Rs. 7,77,000/- in total was awarded by the High Court towards pecuniary damages and Rs. 6,00,000/- towards non pecuniary damages under different heads which is rounded off in all at Rs. 14,00,000/- by modifying the judgment of the Tribunal. The Misc. case No. 386 of 2011 filed by the Appellant was considered and the High Court modified its earlier order vide its order dated 10.3.2011 directing the Insurance Company to deposit the amount with interest with the Registry of the High Court and out of the said amount, it has directed the Registry to keep 70% in the fixed deposit in the name of the Appellant in any of the Nationalized Bank for a period of five years and the balance amount be disbursed to the Appellant on proper identification. The appeal of the Appellant was dismissed in view of the fact that the appeal filed by the Insurance Company, MACA No. 580 of 2007 was allowed and the compensation awarded by the Tribunal was reduced. The same judgment is questioned by the Appellant in these civil appeals seeking for enhancement of compensation urging various grounds.

  7. The grounds urged in these appeals are that the High court has exceeded its jurisdiction in interfering with the finding of fact recorded by the Tribunal with regard to award of pecuniary damages towards medical expenses without proper appreciation of pleadings and evidence on record and has considerably reduced the amount under the heading of pecuniary damages from Rs. 17,51,726/- to Rs. 7,77,000/-. The correctness of the said impugned judgment and order is questioned before this Court contending that the same is not only erroneous but also suffers from error in law and therefore, the Appellant prayed for setting aside the same and award just and reasonable compensation in favour of the Appellant both under the heads of pecuniary and non-pecuniary damages by applying the law laid down by this Court.

  8. Further, it is contended by Mr. Sukumar Pattjoshi, learned Senior Counsel for the Appellant that the High Court has erroneously interfered with the impugned judgment and award of the Tribunal which is contrary to legal evidence on record and various judgments of this Court with regard to the claim and he also contended that the High Court has not awarded just and reasonable compensation to mitigate the hardship and restore the claimant's position financially as she was in before the accident.

  9. Further, the learned Senior Counsel submitted that the High Court was not justified in not enhancing the non pecuniary compensation though sufficient evidence was brought on record by the Appellant before the MACT to show that she was a celebrity in the sphere of modeling and acting who had a bright future ahead of her which was doomed by the accident which resulted in number of surgeries conducted on her body. The opportunity for the Appellant to act in the movies and T.V. serials is lost by her on account of the grievous injuries sustained by her. The Tribunal has referred the same in its judgment while awarding compensation under different headings of non- pecuniary damages, namely, suffering and future loss of earnings but it did not take into consideration the permanent partial disablement suffered by the Appellant which was assessed at 30% and disfigurement of her face due to accident and the fact that she is a celebrity acting in movies and TV serials and also in the field of modeling. Due to disfigurement of her face, she will be losing her future income as she will not get opportunities to act in the films and T.V. serials. Therefore, the learned Senior Counsel submits that both the Tribunal and the High Court were not justified in not awarding the just and reasonable compensation under the heading of future income. They have awarded only a meager amount of Rs. 2,00,000/- towards the loss of income during the period of medical treatment though she was unable to earn nearly for a period of four years as she was undergoing treatment. Also, the Tribunal did not award any amount for loss of future income but has awarded a sum of Rs. 1,00,000/- towards the pain and suffering without taking into consideration the fact that she has undergone treatment in various Nursing Homes/Hospitals for plastic surgery and other surgeries and physiotherapy. A paltry sum of Rs. 1,00,000/- was awarded for loss of income during the period of medical treatment of the Appellant. A sum of Rs. 2,00,000/- was awarded towards loss of amenities and pleasure of life. Therefore, she has filed the appeals requesting this Court to award just and reasonable compensation by appreciating the legal evidence on record.

  10. It is further urged that the High Court has failed to take into...

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