VEENA KHURANA & ORS vs AMAN VERMA & ANR
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 10 January 2024
Judgment pronounced on : 27 February 2024
+ MAC. APP. 240/2015, CM APPL. 43238/2023
VEENA KHURANA & ORS. ….. Appellants
Through: Ms. Kamaljot Kaur, Adv.
versus
AMAN VERMA & ANR. ….. Respondents
Through: None.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T
1. This judgment shall decide the present appeal filed by the
appellants/claimants/petitioners under Section 1731 of the Motor
Vehicles Act, 19882 assailing the Impugned Order dated 31.10.2014
passed by the learned Motor Accident Claims Tribunal3, Tis Hazari
Courts, Delhi, whereby the compensation petition of the appellants
was allowed and the appellants/claimants were awarded an amount of
1 173. Appeals. – (1) Subject to the provisions of sub-section (2), any person aggrieved by an
award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to
the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award
shall be entertained by the High Court, unless he has deposited with it twenty-five thousand rupees
or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High
Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of
ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring
the appeal in time.
2 Act.
3 Tribunal
Rs. 9,24,104/- in Compensation Petition No. 62/2012 titled as Smt.
Veena Khurana & Ors. vs. Aman Verma & Anr.
FACTUAL BACKGROUND:
2. Briefly stated, it was the case of the appellant / claimant that on
13.08.2011, Sh. Gopal Krishan Khurana (deceased herein), aged 65
years as on the date of the accident, at about 01:35 pm was riding his
scooter. As the deceased approached Budhela Mandir, C Block, the
offending vehicle, bearing No. DL 9C3 3284 (Wagon R Car) and
driven by the Respondent No. 1 in a rash and negligent manner,
collided with the deceased”s scooter from behind. This collision
caused the deceased to fall from his scooter, resulting in severe
injuries. The offending vehicle was owned by the Respondent No. 2
and was not insured.
3. The appellant No. 2, who is the son of the deceased, took the
deceased from the site of the accident to Mata Channan Devi Hospital,
where he was subsequently admitted in the Intensive Care Unit (ICU).
The deceased was in the Hospital from 13.08.2011 to 27.08.2011. The
deceased succumbed to his multiple severe injuries on 27.08.2011.
PROCEEDINGS BEFORE THE LEARNED MACT AND
IMPUGNED ORDER:
4. The applicants/claimants filed the compensation petition before
the learned Tribunal on 12.01.2012. During the course of proceedings
before the learned Tribunal, based on the pleadings and documents
filed, following issues were framed on 19.07.2012: –
1. Whether the deceased Sh. Gopal Krishan Khurana suffered
fatal injuries in an accident that tool place on 13/08/2011 at about
13:35 hours involving Wagon R bearing No. DL-9CE-3284 driven
by the Respondent No.1, and owned by the Respondent o. 2? OPP
2.Whether the petitioner/petitioners is entitled for compensation? If
so, to what amount and from whom?
3. Relief.
5. The respondents were proceeded ex parte, as the respondents
stopped participating in the proceedings before the learned Tribunal.
The offending vehicle was not insured. The learned Tribunal
examined the Petitioner No. 2 as PW-1 and Dr. Shifali Bhasin as PW-
2. During cross-examination, Dr. Shifali Bhasin, in her deposition as
PW-2, deposed that the hospital had charged a sum of Rs. 5,65,892.00
out of which Rs. 1,65,200.00 was paid by Medi Claim Insurer TPA.
As per PW-2, the remaining amount of Rs. 4,00,692/- was paid by the
deceased”s family. The PW-2 during the course of the cross-
examination proved the death certificate (Ex. PW2/2) and the original
medical bills (Ex. PW1/2). The germane observations have been
reproduced under:
I have brought the summoned record i.e., bills pertaining to the
patient namely Sh. G. K. Khurana who was treated in our hospital.
The bill already Ex. PW-l/3 dated 28/08/11 is correct. The said bill
was issued for sum of Rs. 5,65,892. 03 p.
Out of the said amount, a sum of Rs. 1,65,200/- was paid by Medi
Claim Insurer TPA. Accordingly, the patient himself paid a lump
sum of Rs. 4,00,692/-. This is the final bill. Later on the patient
was admitted in this hospital and we did not charge anything from
him. The detail of the final bill are contained in Ex. PW-2/1. The
bills are correct. (Original record, seen, matched and
returned).
The discharge summary issued by our hospital is already Ex.
PWl/2. Later the patient expired in our hospital. I am filing the
photocopy of death summary prepared by Dr. K. K. Trehan and Dr.
S.K. Sethi, which is Ex. PW-2/2 (original death summary seen,
matched and returned)
xxxxxxxx by respondents NO. 1
The witness is put to the respondent no.l, who has refused to
cross examine. The opportunity to cross examine stands closed.
xxxxxxx by Sh. A. K. Dubey, Ld. Counsel for respondent no.2
It is correct that I am not concerned with the billing department of
my hospital. It is further correct that I do not know about the
charges taken by the hospital for the particulars of either test or
medicine etc.
6. The learned Tribunal, in regard to the Issue No.1, decided in
favour of the appellants and against the respondents. The Tribunal
held that after going through all the documents filed by the petitioner
as well as the Detailed Accident Report (DAR) filed by the police, it
stands clear that the respondent No. 1 was driving the vehicle in a rash
and negligent manner.
7. In regard to the Issue No. 2, the tribunal awarded the
compensation to the tune of Rs. 9,24,104/- with interest at the rate of
9% per annum including the interim award. It is the case of the
appellants, the learned tribunal while calculating the award, did not
consider the medical expenses which were incurred by the appellants
during the deceased”s treatment. The relevant observations have been
reproduced below:
26. The said categorization of expenses incurred upon family
members and savings made by deceased is not required where the
deceased had left L.Rs who were all dependent upon him, because
in such an eventuality, finally the savings of the deceased shall also
fall to the share of the dependents beside the pecuniary loss
suffered by them and therefore it becomes futile exercise to assess
savings of the deceased. Therefore, in view of aforesaid discussed
law, it can be said that the deceased might have been spending
1/3′” of income on himself and 1/3′” of income on his wife and
1/3′” would have been saved by him. The saved 1/3′” in this case
can be well treated as a loss to the estate for both the dependent
wife as well as non-dependent son.
27. Accordingly, I hereby deduct 1/3′” of the amount from
income of the deceased towards his personal and living
expenses in terms of the judgment of Hon’ble Supreme Court
of India in case of Saria Verma Vs. DTC decided on 15.4.2009
in C.A. No. 3483/08. It is pertinent to mention that the
petitioner No. 1 (wife of the deceased) and petitioner No.2 are
dependents and petitioners No. 3 & 4 are non-dependent
daughters. The deduction would have been to the extent of
l/3rd of the income towards the personal expenses of the
deceased in terms of Sarla Verma Judgment(supra) as the
deceased had left behind two dependents. Therefore, after
deducting one-third towards personal expenses, the loss of
dependency annually comes out to be Rs. 2,36,731/- – Rs. 78,910. 3
p.= Rs. 1,57,820. 7 p. Now, after capitalizing the annual loss of
income with number of years purchase i.e multiplier of 5 as
mentioned the judgment of Hon’ble Supreme Court in Sarla
Verma’s case, the total loss of dependency comes out to (Rs.
1,57,820. 7 p. X 5) =Rs. 7,89,103.5 p.. rounded off to Rs.
7,89,104/-.
28. In terms of the judgment of Hon’ble Supreme Court of India in
“Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563″
wherein the Hon’ble Apex Court has granted Rs. 25000/- towards
funeral charges, Rs. 1,00,000/- towards loss of consortium,
accordingly, I award Rs. 1,00,000/- towards loss of consortium;
Rs. 25,000/- towards funeral charges. I also award Rs. 10,000/-
towards loss of estate. Therefore, in total, I hereby award a sum of
Rs. 9,24,104/- in favour of the petitioners and against the
respondents.
8. The learned Tribunal apportioned the liability on respondents
No. 1 & 2 to pay the compensation jointly and severally to the
appellants.
9. The impugned order has been assailed inter alia on the grounds
that the learned Tribunal restricted the compensation to Rs. 9,24,104/-
and did not consider the medical expenses incurred during the
treatment of the deceased, and for pain and suffering undergone by the
deceased. The applicants/petitioners contend that the compensation
awarded was not suitable and the interest rate of 9% was contrary to
the current economy.
ANALYSIS & DECISION:
10. I have given my thoughtful consideration to the submissions
advanced by the learned counsels for the rival parties at the Bar. I
have meticulously perused the record of the present case.
11. At the outset, the observations made by the learned Tribunal in
paragraph (16) referred above cannot be sustained in law. The
testimony of PW-2 that injured was treated in Hospital and bill for a
sum of Rs. 5,65,892.03 Paisa was paid as per Bill Ex.PW-1/3 dated
28.08.2011. It was also brought out that a sum of Rs. 1,65,200/- was
paid by Mediclaim Insurer, and therefore, Rs. 4,00,692/- as per bill fill
Ex.PW-2/1 was paid by the appellant-claimant. There was no reason
to deny the reimbursement of such claim to the appellant-claimant.
Reference in this connection can be had to decision Sidram v. The
Divisional Manager, United India Insurance Co. Ltd.4 wherein the
Hon’ble Supreme Court reiterated the proposition of law as under:
4 Civil Appeal No. 8510 of 2022 decided on 16.11.2022
(30) The principle consistently followed by this Court in
assessing motor vehicle compensation claims, is to place the victim
in as near a position as she or he was in before the accident, with
other compensatory directions for loss of amenities and other
payments. These general principles have been stated and reiterated
in several decisions. [Govind Yadav v. New India Insurance Co.
Ltd., (2011) 10 SCC 683 : (2012) 3 SCC (Civ) 1082 : (2012) 1
SCC (Cri) 82 : (2012) 1 SCC (L&S) 422] ]
(32) This Court has emphasised time and again that just
compensation should include all elements that would go to place
the victim in as near a position as she or he was in, before the
occurrence of the accident. Whilst no amount of money or other
material compensation can erase the trauma, pain and suffering that
a victim undergoes after a serious accident, (or replace the loss of a
loved one), monetary compensation is the manner known to law,
whereby society assures some measure of restitution to those who
survive, and the victims who have to face their lives.
(36) Yet later and in near past, in an accident case, which tragically
left in its wake a young girl in a life-long state of paraplegia, this
Court in Kajal v. Jagdish Chand (2020) 4 SCC 413 : (2020) 3
SCC (Civ) 27 : (2020) 2 SCC (Cri) 577] , reiterated that in addition
to loss of earnings, compensation for future prospects too could be
factored in, and observed that : (SCC pp. 421-24, paras 14-17 &
20)
14. In Concord of India Insurance Co. Ltd. v. Nirmala
Devi [Concord of India Insurance Co. Ltd. v. Nirmala Devi, (1979)
4 SCC 365 : 1979 SCC (Cri) 996] , this Court held : (SCC p. 366,
para 2)
2.
the determination of the quantum must be liberal, not
niggardly since the law values life and limb in a free country in
generous scales.”
15. In R.D. Hattangadi v. Pest Control (India) (P) Ltd. [R.D.
Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551 :
1995 SCC (Cri) 250] , dealing with the different heads of
compensation in injury cases this Court held thus : (SCC p. 556,
para 9)
9. Broadly speaking while fixing the amount of compensation
payable to a victim of an accident, the damages have to be assessed
separately as pecuniary damages and special damages. Pecuniary
damages are those which the victim has actually incurred and
which are capable of being calculated in terms of money; whereas
non-pecuniary damages are those which are incapable of being
assessed by arithmetical calculations. In order to appreciate two
concepts pecuniary damages may include expenses incurred by the
claimant : (i) medical attendance; (ii) loss of earning of profit up to
the date of trial; (iii) other material loss. So far as non-pecuniary
damages are concerned, they may include : (i) damages for mental
and physical shock, pain and suffering, already suffered or likely to
be suffered in the future; (ii) damages to compensate for the loss of
amenities of life which may include a variety of matters i.e. on
account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life i.e. on account of
injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life.”
16. In Raj Kumar v. Ajay Kumar [Raj Kumar v. Ajay Kumar,
(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri)
1161] , this Court laid down the heads under which compensation
is to be awarded for personal injuries : (SCC p. 348, para 6)
6. The heads under which compensation is awarded in
personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of
the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be awarded
only under Heads (i), (ii)(a) and (iv). It is only in serious cases of
injury, where there is specific medical evidence corroborating the
evidence of the claimant, that compensation will be granted under
any of the Heads (ii) (b), (iii), (v) and (vi) relating to loss of future
earnings on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects of marriage)
and loss of expectation of life.”
17. In K. Suresh v. New India Assurance Co. Ltd. [K.
Suresh v. New India Assurance Co. Ltd., (2012) 12 SCC 274 :
(2013) 2 SCC (Civ) 279 : (2013) 4 SCC (Cri) 638] this Court held
as follows : (SCC p. 276, para 2)
2.
There cannot be actual compensation for anguish of the
heart or for mental tribulations. The quintessentiality lies in the
pragmatic computation of the loss sustained which has to be in the
realm of realistic approximation. Therefore, Section 168 of the
Motor Vehicles Act, 1988 (for brevity the Act) stipulates that
there should be grant of just compensation. Thus, it becomes a
challenge for a court of law to determine just compensation
which is neither a bonanza nor a windfall, and simultaneously,
should not be a pittance.”
12. In view of the foregoing discussion, the appellant-claimant is
also made entitled to an additional compensation of Rs. 4,00,692/-
over and above Rs.9,24,104/- awarded by the learned Tribunal and
thereby awarding total compensation of Rs. 13,24,796/- with interest
@ 9% including interim award from the date of filing of the petition
till realization.
13. All interim orders stand vacated.
14. The appeal stands disposed of accordingly.
15. The pending application also stands disposed of.
DHARMESH SHARMA, J.
FEBRUARY 27, 2024
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