Mukesh Kapoor vs Shri Munna Lal and Others

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/-.

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;

(iii) Fracture of right thigh bone; and (iv) Head injuries.

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.

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 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.

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 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.

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 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.

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/-.

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 and Ors. v. Gopal Krishan and 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 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.

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.