The New India Assurance Company Limited v. Neena Goyal & Ors.

CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- FAO No.1376 of 1994 - 2 - Present: Mr. D.K. Dogra, Advocate, and Mr. Pradeep Bedi, Advocate, for the appellant in FAO Nos.1376 and 1377 of 1994 and in Civil Revision No.2749 of 1994 and for respondent No.3 in FAO No.1199 of 1994. Mr. N.K.Khosla, Advocate, for the National Insurance Company. Mr. Arun Jindal, Advocate, for respondent No.1 in Civil Revision No.2749 of 1994 and in FAO No.1377 of 1994 and for the appellant in FAO No.1199 of 1994. ----

1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

2. 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. (Oral)

1. The learned counsel states that the apportionment of liability as 20:80 between him and the driver of the maruti van was not proper. The Tribunal has held that the particular road in which the accident had taken place, was a broad road and it had taken place on a rainy wet day. He had reasoned that even the driver of the maruti car should have exercised caution for the road was slippery. Even applying brakes could not save a collision if it was driven rashly or at high speed. It therefore split the liability in equal measure but loaded the negligence factor to the driver of the maruti van and stuck the liability of the maruti car driver at relatively a lower percentage of 20. The finding of contributory negligence by the Tribunal appears well reasoned and I make no interference in the manner in which the liability has been apportioned.

2. The Insurance Company is in appeal and in revision relating to award of compensation for injuries to passengers in a private car while the driver owner of the private car is himself on appeal seeking for FAO No.1376 of 1994 - 3 - enhancement of compensation in FAO No.1199 of 1994.

3. The contention of the learned counsel appearing on behalf of the Insurance Company is that although the policy was a comprehensive policy that covered the risk for injuries to passengers in a car. The claim could not have been prosecuted by all the claimants without making the insured owner as a party. The claimants were wife and children of the owner-cum-insured and, therefore, the insurer shall not be made answerable for 20% of the claim which was apportioned to the negligence of the driver of the maruti car. It is a fundamental precept of law of insurance that the insurer only indemnifies the insured and the insured shall be made as a party. There shall be a lawful action against the negligence of the husband and the parent of the respective claimants for the benefit under a policy is to cover the risk of all passengers. Normally I would have felt constrained to hold that in the absence of the owner, the insurer could not have made liable at all. However, I still do not want to hold up the technical plea against the claimants for 20% against the insurer only on the ground that the owner/insured was very much a party to the connected proceedings prosecuting his own claim for damages against the other offending vehicle which was a maruti van and also suffered a partially abatement of claim to the extent of 20% for his negligence attributed to him. I also do not want to interfere with the award passed making the appellant insurer liable for 20% only for the reason that the amounts awarded are minimal and they would not require to be upset at this length of time after more than 15 years. The award of the Tribunal in so far as it cast the liability on the Insurance Company FAO No.1376 of 1994 - 4 - even without impleading the insured was definitely not tenable but more than stating that the claim petitions were not appropriately drafted, I rest the position there without upsetting the awards passed against the claimants.

4. As regards the appeal for enhancement by the driver owner of the maruti car, the claimant was a lawyer by profession and who was reported to have been seriously injured requiring his hospitalization in Sangrur first, later transported to Bathinda and still later to Delhi for better clinical management. It has come through evidence that he was undergoing treatment from December 1990 till February 1991. He had head injury on the right temporal and right zygomatic regions, communited compound fracture of the shaft of right femur (underneath the swelling on the right thigh); fracture of the 5th metacarpal of left hand (with respect to the complaint of pain in the right hand), lacerated wound of the dorsal aspect of right hand, on little finger. There has been evidence also by the doctor treating the claimant to say that his left hand had been put on POP and the right thigh bone had been put under traction. Evidently, he had undergone a long period of hospitalization and suffered an enormous pain. The doctor while ascertaining compensation under the various heads provided for pain and suffering to the tune of Rs.12,000/-. Having regard to the several fractures which he had suffered and the traction that had been applied to relieve him from the pain, I would increase it by another Rs.13,000/- to round for the claim for pain and suffering as Rs.25,000/-. The Tribunal has awarded expenses for medicines, hospitalization etc. at Rs.20,000/-. The FAO No.1376 of 1994 - 5 - contention of the learned counsel appearing on behalf of the claimant is that the Tribunal has not provided for transportation, attendant charges and special dietary expenses. As a matter of fact, the Tribunal has referred to all these heads of claims as well and going by the evidence relating to medical expenses, it had proof for Rs.16,820/- for treatment at Delhi and it had through bills produced through witnesses Ex. PW-5 to PW-7 to the tune of about Rs.10,000/-. Dr. Amrit Gupta had given evidence that all the injured would have spent Rs.10,000/- towards medicines. This was taken by the Tribunal as expenditure for all other persons as well and granted only Rs.20,000/- as compensation. For medical expenses, Rs.20,000/- would have been appropriate but still the Tribunal was stating that it included special diet, hospital, attendant and conveyance charges, the Tribunal was definitely making a mistake in not taking note of the hospitalization and treatment at three different places and the transportation charges that would have been incurred for going from one place to another which was at least 100 kms. from each place. Two months hospitalization would have required attendants in the hospital also. I would therefore add another Rs.15,000/- over Rs.20,000/- already awarded, to make it Rs.35,000/-. Apart from this, the Tribunal has awarded Rs.64,000/- for future loss of income. Loss of income has been arrived at on the basis of assessment of disability which was assessed at 20%. 20% disability was a functional disability of a restriction in movements. To a busy practitioner at law who may have requirement to go from one Court to another or to undertake travel from Court at one place to the Court at another place, the inconvenience must FAO No.1376 of 1994 - 6 - have been enormous and the petitioner could have also suffered some loss of income. I would assign to the loss of income an estimation of about Rs.25,000/- and the loss due to the disability at another Rs.50,000/-. In all, I would round it to Rs.75,000/- while the Tribunal has awarded Rs.64,000/-, that would mean an additional Rs.11,000/- payable under the said head. The additional claim shall therefore be Rs.39,000/- and out of this amount, 20% has to be deducted as constituting to share the liability for causing the accident. After deducting the said amount, the amount that would become payable would be Rs.33,200/- with interest in addition to the amount which was payable. This amount shall come only out of the National Insurance Company which was the insurer for the maruti van and it is arrayed as the 4th respondent in the appeal filed by the claimants-appellant in FAO No.1199 of 1994.

5. The appeals in revision filed by the Insurance Company are dismissed. The appeal filed by the claimant for enhancement will obtain an increase in compensation to Rs.33,200/- with interest at 7.5% from the date of the award of the Tribunal till the date of the payment. There shall be however no directions as to costs.

03.08.2010 sanjeev (K.KANNAN) JUDGE