* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ F.A.O. No.239 of 1996
% 24.05.2010
MUKESH KAPOOR ...... Appellant
Through: None.
Versus
SHRI MUNNA LAL & ORS. ......Respondents
Through: Ms. Prinka, proxy counsel for R-3.
Reserved on: 19th May, 2010
Pronounced on: May 24, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. The present appeal has been preferred by the injured who was awarded a
compensation of Rs.1,20,000/- by learned MAC Tribunal vide its order dated 22nd March,
1996. The appellant has assailed the order on two counts; one that the compensation
awarded to him was on lower side and second that the Tribunal wrongly held that the
liability of the insurance company/respondent No.3 was limited to Rs.50,000/-.
2. Brief facts relevant for the purpose of deciding this appeal are that the appellant
received injuries on 8th April, 1982 in an accident caused due to rash and negligent act of
driving of vehicle No.DLG-9261 by its driver, that is, respondent No.1. In the accident,
the appellant received following injuries :-
(i) Fracture of ring finger of right hand;
(ii) Fracture of both bones of left forearm;
F.A.O. No.239/1996 Page No.1 of 6
(iii) Fracture of right thigh bone; and
(iv) Head injuries.
3. The injured had claimed a compensation of Rs.4 lac. He had pleaded that he used
to earn Rs.2,000/- per month. He remained in hospital for some days. He had become
permanently disabled person after the accident and despite taking treatment, his knees
were not fully functional and he was having difficulty in doing physical work due to the
injuries. Despite treatment, he has developed a permanent limping and was not able to
run or walk fast. Due to fracture of his right finger, grip of his hand was always painful.
Due to injuries on his head, he remained in coma for about 15 days. He was first taken to
RML Hospital thereafter to a private nursing home. He remained in Rama Nursing Home
wherefrom he was taken to South Delhi for Cat-scanning. He was also treated at Tirath
Ram Shah Hospital for two weeks and he was operated by Dr. Chakraborty. A long rod
was put inside his fractured thigh. He was also treated by Dr. Tej Inder Pal Singh for 26
days. He remained under plaster due to fractures of parts of his body for four months. He
remained under intensive treatment for seven months after which he started walking with
the help of crutches. Despite all treatment even after filing of the claim petition and
during evidence, he was having difficulty in sitting while easing and he still had pain in
leg. He could not run or walk properly, could not exercise and could not pick up weight.
He was operated upon twice for fracture in leg.
4. The learned Tribunal observed that though the witness has stated that he took
treatment from different doctors but no record of medical treatment was produced on the
case file. The doctors who first treated him, i.e., when he was confined to bed had not
been examined. The accident had taken place in the year 1982. The appellant examined
doctor who treated him from the year 1985 onwards. No medical record of Tirath Ram
F.A.O. No.239/1996 Page No.2 of 6
Shah Hospital or RML Hospital or X-ray reports etc., were proved or produced by the
appellant. The appellant only produced some bills of the medicines purchased by him
and some certificates of private nursing homes (which were not proved). The appellant
produced bills only to the tune of Rs.1,900/- to Rs.2,000/-. The appellant also failed to
prove his income as alleged by him. The bank manager was examined as prosecution
witness who deposed that loan was raised by the appellant in the year 1980. The Tribunal
considering the entire evidence, observed that though there was some disability suffered
by the claimant due to accident, but the claimant had not disclosed the exact loss caused
to him due to injuries suffered by him. He claimed to have spent Rs.40,000/- on
treatment but without any bills. The Tribunal, therefore, awarded a sum of Rs.10,000/- to
the claimant towards expenses on medicines although bills of only Rs.2,000/- were
produced. The Tribunal awarded Rs.60,000/- to the claimant/appellant towards pains,
sufferings and disability, Rs.5,000/- towards diet and conveyance, Rs.15,000/- towards
loss of enjoyment of life, Rs.15,000/- for future prospects and another sum of Rs.15,000/-
towards miscellaneous expenses. The appellant had also claimed from the Tribunal a sum
of Rs.3,411.46 for damages to the scooter but the testimony of the appellant showed that
he had received insurance claim in respect of scooter from the insurance company with
whom the scooter was insured by him. So, this claim was denied.
5. In the appeal, it is submitted by the appellant that the compensation against
suffering and pain should have been awarded as Rs.1 lac. The appellant was treated by
different doctors about whom the appellant had given testimony. The appellant had given
testimony about the difficulties being faced by him even after the accident. The Tribunal
ought to have awarded a sum of Rs.1 lac for loss of amenities of life and loss suffered due
to disability. It is also submitted that the Tribunal wrongly came to the conclusion that
F.A.O. No.239/1996 Page No.3 of 6
the liability of insurance company was limited. It is submitted by counsel for the
appellant that after the accident, the life of appellant had become miserable as the
appellant was not able to walk or run properly nor he was able to use Indian commode
and not able to lift weight.
6. Looking at the injuries suffered as enumerated in paragraph No.2 above and the
fact that the injured had to remain confined to bed for at least eight months and could
walk on his legs again only with the help of crutches after that, I consider that the plea
taken by the appellant that he should have been given at least Rs.1 lac for pain and
suffering was justified. I, therefore, modify the award of the Tribunal regarding
compensation for pain and suffering from Rs.60,000/- to Rs.1 lac. The Tribunal awarded
Rs.10,000/- for expenses on medicines. I consider this was a very paltry sum. Looking
into the fact that the appellant had undergone two operations on his thigh, his one arm
was fractured, he had received injuries in the head and was in coma for 15 days, he also
had to go for physiotherapy to make himself mobilized after being confined to bed for
eight months, I consider that Rs.30,000/- would have been a reasonable amount for
expenses on his treatment despite the fact that the appellant had not preserved the bills of
all expenses. However, it is an undisputed fact that the appellant suffered above injuries
and had remained confined to bed for a long time. The amount of Rs.5,000/- for diet and
conveyance was inadequate even in the year 1982, looking at the fact that the appellant
suffered multiple injuries and had to take treatment at different places and hospital, I
consider Rs.15,000/- would have been the proper amount for special diet and conveyance.
The appellant has been granted Rs.15,000/- for loss of enjoyment of life. I consider that
this amount is also too insignificant looking at the fact that the appellant has lost capacity
to run, walk fast and lost proper grip of one hand and could not use Indian toilet and
F.A.O. No.239/1996 Page No.4 of 6
could not squat. Running, playing and enjoying with children, able to sit on the floor and
squat in the garden are such enjoyments of life which are necessary to keep one lively and
if they are lost forever, I consider Rs.15,000/- was too meager. I consider Rs.50,000/-
should have been the proper compensation for this. On other counts, I do not find any
infirmity in the award. The award of the Tribunal is, therefore, modified accordingly and
the total compensation payable to the claimant would be Rs.2,25,000/- [Rs.30,000/- +
Rs.1,00,000/- + Rs.15,000/- + Rs.50,000/- + Rs.15,000/- + Rs.15,000/-]. The claimant
shall be entitled to simple interest @ 7 per cent per annum on this amount from the date
of filing of petition till realization.
7. Next issue raised by the appellant is about the liability of insurance company
being unlimited. The insurance company had contested this issue and argued that its
liability was limited only to Rs.50,000/-.
8. A perusal of trial court record would show that the owner had paid a premium of
Rs.240/- on 29th March, 1982 for covering public risk in addition to this Rs.16/- were paid
for driver and conductor. Although it is stated in the insurance policy that the limit of
company’s liability in respect of any claim or series of claim was Rs.50,000/-, but in view
of the fact that the insurance company had not charged the premium fixed by the
Advisory Board for limited liability of Rs.50,000/-, i.e., ‘Act Only Liability’ but it
charged premium for public risk, I consider that this clause in the insurance policy was
contrary to the contract between the parties and contrary to tariff regulations. This court
had considered such a clause in F.A.O. No. 257 of 1991 titled Neeta Trehan & Ors. Vs.
Gopal Krishan & Ors., decided on 17th May, 2010 and observed that where the premium
charged by the insurance company from the insured was Rs.240/- instead of Rs.200/-,
which is the premium for limited liability, the liability of insurance company was
F.A.O. No.239/1996 Page No.5 of 6
unlimited. I, therefore, hold that liability of insurance company in this case was
unlimited. The Tribunal wrongly came to the conclusion that liability of insurance
company was limited to Rs.50,000/-. The entire award amount was payable to the
claimant by the insurance company only.
9. The appeal of the appellant is allowed in above terms. The insurance company
shall deposit this enhanced compensation with the Tribunal within 60 days and the
Tribunal shall disburse this amount to the injured forthwith.
SHIV NARAYAN DHINGRA J.
MAY 24, 2010
‘AA’
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