Bajaj Allianz General Insurance ... vs Vinod Kumar Aggarwal & Ors
2014 Latest Caselaw 1014 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%              Judgment delivered on: 24th February, 2014


+      MAC.APP. 796/2011

BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. ..... Appellant
                  Represented by: Mr. Rajat Brar, Adv.

               Versus


VINOD KUMAR AGGARWAL & ORS                      ..... Respondents
                Represented by: Mr. Nitinjya Chaudhary, Adv. for
                R1.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal is directed against the impugned award dated 31.05.2011, whereby ld. Tribunal has awarded compensation for a sum of Rs.30,80,047/- with interest @ 7.5% per annum from the date of filing of the petition till realization of the amount.

2. Ld. Counsel appearing on behalf of the appellant submits that Ld. Tribunal has erred in considering the actual income of the injured as Rs.1,80,911/-, whereas in the said income, rental income of Rs.67,200/- and Rs.5,711/-as income from other sources was also included. However, the Ld. Tribunal has not deducted the same while granting the compensation.

3. Ld. Counsel appearing on behalf of the respondent no. 1 / injured does not dispute to the arguments advanced by the counsel of the appellant and submits that Ld. Tribunal ought to have deducted the rental income and income from other sources from his income while assessing the compensation.

4. In view of above, the actual income of the injured comes to Rs.1,08,000/-.

5. Ld. Counsel for the appellant further submits that the appellant issued notice under Order XII Rule 8 CPC to respondent nos. 2 & 3 to produce the driving licence of the offending vehicle, however, there was no response from their side. Accordingly, they were proceeded ex-parte before the Ld. Tribunal. Moreover, the police had filed a challan for the offences under Section 3/181 of the Motor Vehicles Act, 1948.

6. Ld. Counsel further submits that despite the above facts, the ld. Tribunal had erred in not granting any recovery right against respondent nos. 2 & 3.

7. On perusal of the record and impugned award, it is established that respondent nos. 2 & 3 neither filed their written statement nor produced the driving licence and were proceeded ex-parte before the Ld. Tribunal. The appellant has proved that notice under Order XII Rule 8 CPC was issued to respondent nos. 2 & 3 and the same is Ex.R3W1/3 and the postal receipt of the same is Ex.R3W1/4. Even in the appeal, respondent nos. 2 & 3 have been served by way of publication.

8. In view of above, the appellant is entitled for the recovery right against respondent no. 2 & 3 jointly and severally.

9. On the other hand, Ld. Counsel appearing on behalf of the respondent no. 1 / injured submits that though he has not filed a cross-appeal, however, this Court has jurisdiction to see whether the just and fair compensation has been awarded in this case. He submitted that the injured was 51 years of age at the time of accident and received 100% disability and the same has been considered by the Ld. Tribunal as functional disability. Despite that, Ld. Tribunal has failed to add future prospects in the actual income of the injured.

10. To strengthen his arguments, Ld. Counsel for the respondent no. 1 / injured has relied upon a case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563, wherein the Full Bench of the Apex Court has held as under:

"12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter."

11. This Court finds force in the submission of the Ld. Counsel for respondent no.1. Therefore, keeping in view the dictum of Rajesh & Ors.

(Supra), to grant just compensation, I add 15% of his actual income towards future prospects.

12. Accordingly, the compensation amount comes as under:

      Sl.    Heads of             Compensation         Compensation
      No.    compensation         granted by the       granted by this
                                  Ld. Tribunal.        court.
        i. Loss of income on Rs.19,90,021/-            Rs.13,66,200/-
            account of disability
       ii. Expenses           for Rs.5,97,184/-        Rs.5,97,184/-
            Medicines        and
            treatment
       iii. Conveyance and diet Rs.25,000/-            Rs.25,000/-
            charges
       iv. Loss of income on Rs.67,842/-               Rs.67,842/-
            account of leaves
        v. Loss of amenities Rs.1,50,000/-             Rs.1,50,000/-
            and expectation of
            life
       vi. For convenience and Rs.50,000/-             Rs.50,000/-
            hardship
      vii. Compensation for Rs.1,50,000/-              Rs.1,50,000/-
            pain and suffering
      viii. For future care and Rs.50,000/-            Rs.50,000/-
            attendant
                   Total          Rs.30,80,047/-       Rs.24,56,226/-

Resultantly, the award is assessed at Rs. 24,56,226/-

13. Hence, the reduced compensation comes to Rs.6,23,821/- (Rs.30,80,047 - Rs.24,56,226).

14. Statutory amount with excess amount, if any, with proportionate interest be released in favour of the appellant and balance compensation amount, if any, be released in favour of the respondent no. 1 / injured.

15. In view of the above, the appeal is disposed of.

CM.No.16534/2011 With the disposal of the instant appeal itself, instant application has become infructuous and disposed of as such.

SURESH KAIT, J

FEBRUARY 24, 2014 Jg/sb