Delhi High Court
Dr. Gunda Neubauer vs Bhanwar Singh & Ors. on 15 July, 2010
Equivalent citations: 2011 AAC 241 (DEL), 2010 A I H C 3203 (2011) ACJ 2447, (2011) ACJ 2447
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: May, 25th , 2010
Date of Order: July 15, 2010
+ MAC Appeal 729/2007 & CM Appln. No.17303/2007
% 15.07.2010
Dr. Gunda Neubauer ...Appellant
Through: Mr. B.S. Randhawa, Advocate
Versus
Bhanwar Singh & Ors. ...Respondents
Through: Mr. Pankaj Seth, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. The present appeal has been preferred by the appellant assailing an award dated 8th August 2007 passed by learned Tribunal on the ground that the compensation awarded to the appellant was inadequate.
2. Brief facts relevant for the purpose of deciding the present appeal are that that appellant, a German national, had come to India as a tourist. She was traveling in a bus and was going to Mount Abu from Udaipur when the said bus met with an accident with a truck coming from opposite direction. In this accident, the appellant lost her arm on junction up one third and middle one third. She filed a claim petition under Section 166 of the Motor Vehicles Act and she was awarded compensation in following terms:
MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 1 Of 9
(i) Pain and sufferings: Rs.2,00,000/-
(ii) Medical bills: DM 1,14,367.08 (Rs.15,61,110.64)
(iii) Bill of private hospital: Rs.45,905/-
(iv) Attendant expenses : Rs.3,22,500/-
(v) Special diet and conveyance:Rs.25,000/-
(vi) Permanent disability: 2,03,508.50DM
(Applying the exchange rate
of 13.65 rupees) Rs.27,77,891.02
(vii) Loss of enjoyment & amenity:Rs.2,00,000/-
Total: Rs.53,32,406.66
3. By way of this appeal, the appellant has assailed the compensation awarded by the Tribunal on the ground that it was not in consonance with the provisions of Motor Vehicles Act. The Tribunal had not taken into consideration the future prospects of the appellant despite there being sufficient evidence on record to show that the appellant had a bright future growth prospects. The Tribunal arbitrarily restricted the damages of loss of earnings to 20% of her earning capacity instead of 70% of her earning capacity.
The Tribunal should have calculated loss of earning capacity in terms of Schedule-I Part- II of the Workmen Compensation Act. It is further submitted that the Tribunal wrongly deducted income tax and surcharge out of gross income for calculating the loss of income. The Tribunal should have calculated loss of income taking into account the gross income. The Tribunal wrongly applied conversion rate of 13.65 per Dutch Mark after calculating loss of income in Dutch Marks whereas the currency prevalent at the time of making award was EURO. The Tribunal also did not award amount for purchasing a special car by the appellant as after accident she could not drive ordinary car. The Tribunal did not award costs of petition in favour of the appellant and the Tribunal did not take into consideration that the appellant has to incur future expenses on an attendant.
MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 2 Of 9
4. It is settled law that the Court in case of accident has to award compensation for pecuniary losses and non-pecuniary losses. The pecuniary losses fall under following heads:
(i) Expenses incurred on treatment, including doctors fee, medicines, etc.
(ii) Expenses caused by any injury to loss of earning.
(iii) Expenses/loss otherwise due to accident.
The non-pecuniary loss falls under following heads:
(i) Pain and sufferings
(ii) Loss of amenities
(iii) Loss of expectation of life.
5. The Tribunal awarded a sum of Rs.2 lac towards pain and sufferings to the appellant because of the accident. The Tribunal, in paragraph 16 of the award, thought that the compensation awarded to a person must commensurate with the status of a person. I consider that the observation made by the Tribunal that the compensation for pain and suffering has to be in accordance with the status of a person is anti- Constitutional. The Constitution of India mandates that everybody is equal before law and the persons cannot be discriminated on the basis of colour of the skin, caste, creed or financial status. The pain and sufferings suffered by a poor man for same injury cannot be considered less than the pain and suffering of a rich man. The Court cannot award small amounts on account of pain and sufferings to the poor persons and hefty amounts for pain and sufferings for same injury to the rich person only because a person was rich. The value of each human life in the eyes of law has to be the same and the monetary value of the pain and suffering also to be same. If the Courts award more compensation to foreigners because of the colour of skin or because of the richness and award less compensation to Indians because they are poor, that amounts to travesty of MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 3 Of 9 justice, and contrary to the Constitution. Pain and sufferings from injuries do not increase or decrease because of colour of the skin or because of affluence of a person.
6. Although the Tribunal observed that it has to be guided by the precedents but the Tribunal seems to have been guided more by the fact that the claimant in this case was a foreign national and was having different status than that of an Indian citizen. Otherwise I find no reason why the Tribunal would have granted Rs.2 lac to the appellant on account of pain and sufferings in case of amputation of an arm while the precedents show that the amount awarded in other similar cases where an Indian had suffered injuries were much less. In Harbhagwant Singh v Haryana Roadways 2006 ACJ 1367 an amount of Rs. 20,000/- was awarded for pain and suffering in case of amputation of right arm. The injured in that case was aged 39 years and was a Joint Director in C.R.P.F. In Tarloki Nath v Kirtan Singh & Ors 2002 ACJ 58, the injured had suffered multiple injuries and 100% permanent disability of right arm and hand. He was aged 35 years. The Tribunal had awarded a sum of Rs.40,000/- for disability and loss of earnings and Rs.15,000/- for medical treatment out of the total compensation of Rs.80,000/-. This amount was enhanced by the High Court and the total compensation given was Rs.1,50,000/-, whereas in the case in hand, the compensation awarded by the Tribunal only on account of pain and suffering is Rs.2 lac. In Royal Sundaram Alliance General Insurance Company Limited v P. Ayyakahnn (2009) 5 MLJ 707 the amount awarded by the High Court for pain and suffering in case of amputation of thumb and two/three fingers and for all other injuries all over the body of the injured was Rs.30,000/-. In Oriental Insurance Company v R.Swaminathan & Ors. 2006 ACJ 1398 it was a case of amputation of right hand and other injuries and the Tribunal awarded a sum of Rs.1 lac against pain and sufferings. The High Court reduced it to Rs.30,000/-. The Supreme Court considered that Rs.1 lac for pain and suffering was not just. Thus, in none of the above cases, the amount awarded for pain and suffering had been as high as in this MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 4 Of 9 case. Pain and sufferings cannot be weighed in terms of money neither money can reduce pain and suffering. Therefore, the compensation for pain and suffering is only a payment of compensation in the nature of solace and this solace cannot be more for a rich man who already has enough money and affluence and less for the poor who needs more money and facilities and amenities and every single rupee helps him. But, in this country, the poor is always looked upon as a non-entity. Grant of less compensation to the poor, even for pain and sufferings than to the rich persons is clearly contrary to the mandate of the Constitution. I also find that status of a person or nationality cannot be a ground for payment of more compensation on account of pain and sufferings. The solace to be awarded in all cases for similar injuries, ought to be same. Changing of solace from person to person must not be there and the solace must not change with the colour of the skin, status or affluence. The Tribunal in this case awarded much more amount than that should have been awarded and the appeal on this count must fail.
7. The injured in this case before starting a tour had obtained Overseas Medical Insurance Policy, which is normally obtained by all tourists traveling from India to other countries or traveling from other countries to India. This Overseas Medical Insurance Policy is mandatory in many countries in case of all tourists and has to be obtained so that if any untoward thing happens in a foreign nation, the tourist is not stranded and does not become a burden on the other country and the insurance company pays the medical bills. The appellant in the present case was also contributing to German Health Insurance Funds and was paying monthly subscription towards it in Germany. The Tribunal awarded payment for entire medical bills placed by her on record without deducting the amount which she received under the Overseas Medical Insurance Policy and from German Health Insurance Germany. The learned Tribunal observed that while awarding expenses of medical bills, no amount, which the injured had received under the insurance policy against same very bills should be deducted and the entire bills of MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 5 Of 9 medical treatment must be awarded under the Motor Vehicle Act. I consider that this approach of learned Tribunal is contrary to the basic jurisprudence of awarding compensation in motor accident claims. The basic jurisprudence of awarding compensation in motor accident claims is that the person who got injured must be compensated on account of loss suffered by him or her and the compensation must not be a windfall. If the injured, a tourist as in the present case, had come to India, with an Overseas Medi-claim Insurance Policy, the amount of medical bills paid under Overseas Medical Insurance Policy cannot be again to the injured by the Tribunal as that would amount to a windfall. In the present case, admittedly money spent by the injured on her treatment was reimbursed to her under Overseas Medical Insurance Policy and under health insurance held by her in Germany. Granting of same amount again amounted to awarding something for which she was not entitled to. She got some treatment in Germany and she got entire expenses incurred by her on her treatment from German Health Insurance Company since she was a contributory to German Health Insurance Funds. The Tribunal awarded the entire claim regarding her treatment again, despite the fact that she had received the entire amount incurred by her from insurance companies observing that if no accident had taken place, the insurance company of the insurer would have paid her the amount on the maturity of the scheme of the insurance company. This presumption (paragraph 41 of the Award) made by the learned Tribunal is without any basis and contrary to insurance contract. No Overseas Insurance Policy provides that in case the tourist does not need the medical treatment abroad, the premium amount would be returned. In fact no insurance company returns the premium to the tourist, when he or she does not make a claim under the policy. This presumption made by the Tribunal was thus without basis. The learned Tribunal also observed that payment of compensation in motor accident cases was a statutory liability of the insurance company under Motor Vehicles Act, irrespective of the fact whether the amount spent on treatment on treatment was received by the injured from other sources MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 6 Of 9 or not. I consider that this presumption is also without any basis. This presumption is neither supported by law nor by facts. The compensation means the amount spent on treatment should be reimbursed. The compensation does not mean that if the injured had not spent any amount and the insurance company of the injured (Medical Insurance Companies in this case) spent the amount, still the injured should be compensated. The Tribunal placed reliance on Helen C. Rebello vs. Maharashtra State Road Transport Corporation 1(1991) SCC 90 wherein the Supreme Court has observed that amount received under LIC or under other social security like provident fund cannot be deducted out of compensation. Placing reliance on this judgment by the Tribunal was misplaced. In case of death, the amount awarded under Motor Vehicles Act cannot be reduced by provident fund and other social securities which are paid to the Lrs of the deceased because these social securities are in the nature of deferred earnings of the deceased. The deceased contributed to the provident funds during his lifetime out of his own earnings. His past earnings cannot be deducted at the time of making award for compensation because of death in an accident. Similarly, LIC also is a separate contract under which a person or his nominees or Lrs because of payment of regular premium, get the amount from the insurance company. LIC Policy is considered an investment. Under Motor Vehicles Act, the dependency of the dependents of the deceased is determined and the loss of dependency is awarded and other payments received by Lrs can not be deducted. The Tribunal in this case relied upon death cases in order to observe that the amount received by the injured from Overseas Medical Insurance Policy and under German Health Scheme was not liable to be deducted. I consider that this conclusion arrived at by the learned Tribunal was contrary to law. The payments under LIC, provident fund and payments under other social securities schemes cannot be equated with payment under Overseas Medical Insurance Policy and payment under German Health Scheme whereunder the insurance company pays the medical bills and bears medical expenses resulting from the injuries received by the injured. The double MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 7 Of 9 payments of these claims, one under Overseas Medical Insurance Policy and the other German Health Scheme is nothing but a windfall for the injured and I consider that the learned Tribunal wrongly awarded huge amount of Rs.15,61,110.64 and Rs.45,905.00 to the injured. In my view, the appellant should have been thankful to the Tribunal for awarding these amounts, contrary to law, and to the respondent insurance company which did not prefer an appeal against the award on these counts.
8. The learned Tribunal awarded compensation on account of loss of income considering the age of the injured as 48 years, the income of the injured as proved by her and taking her disability as 20%. Thus, the Tribunal awarded a sum of DM 2,03,508.50. The appellant had received a sum of DM30,000/- from her employer while she was removed from service. This amount was not taken into consideration while awarding loss of income. The Tribunal awarded another sum of Rs.2 lac because of continuous mental pain and agony which the appellant would have to undergo because of incompleteness of an individual on account of loss of her one limb and because of the difficulty in carrying out day-to-day work. Apart from that, the learned Tribunal awarded another amount of Rs.2 lac on account of loss of enjoyment of amenities of life. After awarding of an amount of Rs.2 lac towards incompleteness of awarding another amount of Rs.2 lac because of reduction in enjoyment of amenities of life was nothing but a windfall. The Tribunal awarded amounts as stated in paragraph 1 of this judgment above. Under no circumstances it can be said that the Tribunal awarded less amount.
9. It is contended by the learned counsel for the appellant that the Tribunal should not have taken the disability of the appellant as 20% and should have taken the disability as 70% in terms of Workmen Compensation Act. It is to be noted that the appellant was not a workman and she was not doing physical work before accident. She was a PhD in Agricultural Science. She is an intellectual and has to do intellectual labour instead of MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 8 Of 9 physical labour for earning. She was not dependent on her right arm for her intellectual work. She was dependent on her brain and I consider that an intellectual, who performs mental work cannot say that due to loss of one arm, she has suffered 70% loss of her earning capacity. In today's era of science and technology, a person can use computers and other gazettes without even using his hands. Similarly, future prospects of a person do not suffer in such a case. The Tribunal has in fact awarded much more compensation to the injured than what was due to her under law.
10. In view of above facts and circumstances and settled legal position, I find no force in this appeal. The appeal is hereby dismissed.
July 15, 2010 SHIV NARAYAN DHINGRA J. rd MAC Appeal 729/2007 Dr. Gunda Neubauer vs. Bhanwar Singh & Ors. Page 9 Of 9