Delhi High Court
Reliance General Insurance Co. ... vs Anil Patel & Ors on 25 March, 2015
$-8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th March, 2015
+ MAC.APP. 974/2012
RELIANCE GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Mr.Pankaj Seth, Advocate with
Mr. Shoumik Mazumdar,
Advocate
versus
ANIL PATEL & ORS ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The appeal is for reduction of compensation of
Rs.17,02,588/- awarded by the Motor Accident Claims Tribunal
(the Claims Tribunal) in favour of Respondent no.1 who
suffered grievous injuries resulting in amputation of right leg
below knee in a motor vehicular accident which occurred on
22.11.2008.
2. The compensation awarded by the Claims Tribunal is tabulated
hereunder:
Sl. Compensation under various Awarded by
Heads the Claims
No. Tribunal (in
Rs.)
1. Medical Bills and Expenses 26,000/-
2. Future Medical Expenses 2,00,000/-
3. Special Diet 20,000/-
4. Conveyance Charges 25,000/-
5. Loss of Income 23,076/-
6. Future Loss of Income 11,08,512/-
7. Loss of Amenities and 1,50,000/-
Enjoyment of Life
8. Pain, Suffering and Trauma 1,50,000/-
TOTAL 17,02,588/-
3. The compensation of Rs.26,000/- awarded towards medical
expenditure, Rs.20,000/- towards special diet, Rs.25,000/-
towards conveyance charges and Rs.23,076/- granted towards
loss of income are not challenged by the Appellant Insurance
Company.
4. It is urged by the learned counsel for the Appellant that the
Claims Tribunal erred in making an addition of 50% towards
future prospects while awarding compensation towards loss of
earning capacity. The Claims Tribunal also erred in taking 90%
towards functional disability instead of 49% disability. It is
stated that the compensation awarded towards future medical
expenses of Rs.2,00,000/- is without any evidence. The
compensation awarded towards loss of amenities and enjoyment
in life is on the higher side in view of the fact that loss of
earning capacity was granted more than 50%. It is stated that
the award of counsel's fee to the extent of Rs.70,000/- was also
not in consonance with the Delhi High Court Rules and Orders.
5. The appeal must succeed.
6. It was the case of the claimant before the Claims Tribunal that
Respondent no.1 was employed as a rickshaw puller. Although
disability certificate was produced, but no doctor was examined
to prove the disability certificate. However, in a case of
rickshaw puller, amputation of right leg below knee would
definitely result in substantial loss of earning capacity. In Raj
Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Supreme
Court laid down that the Court must assess the functional
disability and the possibility of an alternative employment. In
the case of amputation of one leg below knee, there is some
possibility of employment of a person such as an attendant with
any organisation to record entry of the person. Still, in our
country, an employer is always reluctant to employ a person
with disability, particularly one with amputation of limb. In
view of this, I am of the opinion that the loss of earning
capacity ought to have been taken as 75% instead of 100%
taken by the Claims Tribunal.
7. As far as addition towards future prospects is concerned, the
question was dealt with by a three Judge Bench decision of the
Supreme Court in Reshma Kumari & Ors. v. Madan Mohan &
Anr., (2013) 9 SCC 65 and it was held that addition towards
future prospects is to be made only when there is specific
evidence in this regard. The question of grant of future
prospects was dealt with by this Court at great length in HDFC
Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors.
MAC APP No. 189/ 2014 decided on 12.01.2015, wherein it
was held that the three Judge Bench decision in Reshma Kumari
& Ors.(supra) shall be taken as a binding precedent. Thus, in
the absence of any evidence of bright future prospects, no
addition towards future prospects ought to have been made by
the Claims Tribunal. The loss of earning capacity therefore,
comes to Rs.5,54,256/-(Rs.3,849/- x 12 x 16 x 75%) instead of
Rs.11,08,512/- as granted by the Claims Tribunal.
8. In Raj Kumar(supra), the Supreme Court also went on to add
that whenever any compensation for 50% or more towards loss
of earning capacity is granted, the compensation towards loss of
amenities and enjoyment in life should be nominal otherwise it
will amount to duplication of the award of the compensation.
The compensation of Rs.1,50,000/- towards loss of amenities
and enjoyment of life is therefore, liable to be reduced to
Rs.50,000/-.
9. The award of compensation of Rs.2,00,000/- towards future
medical expenses is without any evidence on the record. Since
the injury had healed, Respondent no.1 ought to have been
awarded a nominal compensation for follow-up treatment for a
couple of months or even for a year. Thus, in the absence of
any evidence with regard to future medical expenses, a
lumpsum compensation of Rs.10,000/- could have been
awarded instead of Rs.2,00,000/- as granted by the Claims
Tribunal. I accordingly, grant a sum of Rs.10,000/- towards
future medical expenses.
10. The overall compensation is recomputed as under:
Sl. Compensation under various Awarded by Awarded by
Heads the Claims this Court
No. Tribunal (in (in Rs.)
Rs.)
1. Medical Bills and Expenses 26,000/- 26,000/-
2. Future Medical Expenses 2,00,000/- 10,000/-
3. Special Diet 20,000/- 20,000/-
4. Conveyance Charges 25,000/- 25,000/-
5. Loss of Income 23,076/- 23,076/-
6. Future Loss of Income 11,08,512/- 5,54,256/-
7. Loss of Amenities and 1,50,000/- 50,000/-
Enjoyment of Life
8. Pain, Suffering and Trauma 1,50,000/- 1,50,000/-
TOTAL 17,02,588/- 8,58,332/-
11. The overall compensation thus, comes to Rs.8,58,332/-.
12. The compensation thus, stands reduced by Rs.8,44,256/-.
COUNSEL' FEE:
13. As far as award of a sum of Rs.70,000/- towards counsel's fee is
concerned, this Court in ICICI Lombard General Insurance Co.
Ltd. v. Kanti Devi and Ors. MAC APP No. 645/ 2012 decided
on 30.07.2012 had gone into the question of granting counsel's
fee and concluded in Para 32 as under:
"32. To sum up, it is directed:-
(i) The Claims Tribunal is empowered to award costs
in a Claim Petition in terms of Section 35 read
with Order XXA of the Code.
(ii) The Claims Tribunal is entitled to award the
Counsel's fee in accordance with Rule 1 read with
Rule 1A and Rule 9 of Chapter 16 Volume I of the
Rules extracted earlier.
(iii) In case of compromise/settlement of the claims, the
Claims Tribunal is not entitled to go beyond the
settlement reached between the parties. If the
settlement does not provide for payment of any
Counsel's fee, it shall not be within the domain of
the Claims Tribunal to award the Counsel's fee.
(iv) If the compensation is awarded on the basis of
DAR in pursuance of the legal offer made by the
Insurer, the Claims Tribunal is not empowered to
award any costs unless it forms part of the legal
offer.
(v) The counsel fee can be directly paid to the counsel
only when a specific agreement is filed and the
Claimant requires payment of fee directly to the
counsel because only then the Claimant would be
liable to reimburse the fee or part thereof in case
the award is set aside or varied.''
14. It is thus, concluded that instead of awarding counsel's fee, the
claim petition ought to be allowed with costs and counsel's fee
be paid only in accordance with Rules 1, 1A and 9 of Chapter
16, Vol. I of the Delhi High Court Rules and Orders. Thus,
award of compensation of Rs.70,000/- towards counsel's fee is
not permissible.
15. The excess compensation of Rs.8,44,256/- along with interest
shall be refunded to the Appellant Insurance Company by
Respondent no.1.
16. Respondent no.1 remained absent despite service through
publication. Respondent no.1 is directed to refund the excess
sum received by him within a period of two months, failing
which the Appellant Insurance Company will be entitled to
interest @ 7% per annum.
17. The appeal is allowed in above terms.
18. Pending applications also stand disposed of.
19. Statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
MARCH 25, 2015
pst
