Delhi High Court
The New India Assurance Co.Ltd. vs Shri Raj Kumar @ Raju, Thr. Lrs, & ... on 1 September, 2015
Author: Pratibha Rani
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 1st September, 2015
+ MAC.APP. 447/2008
THE NEW INDIA ASSURANCE CO.LTD. ..... Appellant
Through: Mr.Pankaj Seth, Advocate.
versus
SHRI RAJ KUMAR @ RAJU, THR. LRS, & ORS ..... Respondents
Through: Mr.Ghansyham Singh, Advocate for
R-1(i) to R-1(iv).
PRATIBHA RANI, J. (Oral)
MAC.APP.No.447/2008
1. The present appeal has been preferred by the appellant - The New
India Assurance Company Ltd. challenging the award dated 08.04.2008
whereby a compensation of Rs.8,61,500/- with interest @ 7% per annum has
been awarded to the injured Raj Kumar for the injuries suffered by him in
the accident.
2. In brief, the facts of the case are that on 20.05.2001 the injured Raj
Kumar was returning from his office at Pusa Road on his Scooter No.DL-
9S-F-1177 and going to his house at Budh Nagar. When he reached Rattan
Puri Chowk near DTC bus Stand, he was hit by offending vehicle No.DL-
8C-B-8701 from behind due to which he fell down on the road and sustained
injuries. In the accident, the petitioner suffered 33% permanent disability
due to the crush injury suffered by him in right thigh, residual scaring inner
thigh with gross restriction of ROM at right ankle.
3. The petitioner filed petition under Section 166 & 140 of M.V. Act
seeking compensation of ₹3,37,900/- Vide award dated 08.04.2008 the
Tribunal awarded a total compensation of Rs.8,61,504/- under the following
heads:
(i) Compensation on account of
pain and sufferings - Rs.40,000/-
(ii) Compensation on account of
medicines, medical treatment, - Rs,30,000/-
conveyance and special diet
(iii) Compensation on account of
permanent disability and loss - Rs.7,41,504/-
of income.
(iv) Compensation on account of
physical disfigurement - Rs.25,000/-
(v) Compensation on account of
loss of enjoyment and amenity - Rs.25,000/-
of life
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TOTAL - Rs.8,61,504/-
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4. Since the offending vehicle was insured with The New India
Assurance Company Ltd. i.e. the appellant herein, the insurance company
was directed to pay the award amount of Rs.8,61,500/- (inclusive of interim
compensation of Rs.25,000/-) with interest @ 7% per annum.
5. Feeling aggrieved by the award passed by the Tribunal, the insurance
company preferred this appeal. It may be noted here that during the
pendency of the appeal, the injured/respondent No.1 herein namely Raj
Kumar @ Raju has expired and his legal heirs namely Smt.Geeta Sharma,
Gautam, Gaurav and Vaishali have been impleaded as Respondent No.1(i)
to (iv).
6. During the course of hearing, learned counsel for the appellant has
submitted that the award has been challenged mainly on the ground that
while computing the loss of earning capacity, as the injured had suffered
33% permanent disability in the accident, 1/3 rd of the monthly income has
not been deducted by the learned Tribunal. Learned counsel for the
appellant has submitted that this contention has also been recorded in the
proceedings dated 15.01.2009. Hence, the limited prayer in this appeal is
that 1/3rd of the income i.e. Rs.2,47,168/- (1/3rd of Rs.7,41,504/-) should be
deducted from the award amount.
7. I have considered the submissions made on behalf of the appellant
and carefully gone through the record. In paras 16 and 17 while awarding
compensation on account of permanent disability and loss of income, the
learned Tribunal has noted that :-
'16. Petitioner also stated that he was in government service
at the time of accident and was getting salary of Rs.11,703/- per
month. Petitioner has placed on record his salary slip
Ex.CW1/J.
17. The petitioner has suffering disability of 33%. Taking the
disability to be 33%, the monthly loss of income comes to
Rs.3,862/- per month or Rs.46,344/- per annum. The injured
was aged about 40 years at the time of accident. Therefore, the
multiplier of 16 would be appropriate. Thus taking the
multiplier of 16, the compensation comes to Rs.46,344/- X 16 =
Rs.7,41,504/-. Permanent disability has many faces. Besides
suffering loss of income the petitioner also undergoes a feeling
of untold mental pain and agony and is unable to carry out the
day to day functions. It also results in physical disfigurement of
the injured. I consider that on this account also a sum of
Rs.25,000/- is to be awarded to the petitioner on account of
permanent disfigurement.'
8. The grievance of the appellant/insurance company is that 1/3 rd of the
monthly income should have been deducted towards personal expenses of
the injured. It has also been submitted by learned counsel for the appellant
that the injured in this case was a government servant and he did not suffer
any loss in his earning despite the fact that he suffered 33% permanent
disability.
The contention raised by the appellant that the Tribunal should have
deducted 1/3rd of the monthly income towards personal expenses needs to be
rejected for the reason that it was not a death case. The injured suffered
injuries in the accident and had died only during pending of the present
appeal. In the case of Sarla Verma vs. Delhi Transport Corporation, 2009
(6) Scale 129 the Hon'ble Supreme Court laid down the following principles
with regard to deduction towards personal and living expenses for grant of
compensation in death cases:-
'I. DEDUCTION FOR PERSONAL AND LIVING EXPENSES:
Deceased - unmarried
(i) Deduction towards persons expenses - 1/2 (50%)
(ii) Deduction where the family of the bachelor
is large and dependent on the income of the
deceased. - 1/3rd (33.33%)
Deceased - married
(i) 2 to 3 dependent family members - 1/3rd
(ii) 4 to 6 dependent family members - 1/4th
(iii) More than 6 family members - 1/5th
(iv) Subject to the evidence to the
contrary - Father, brother
and sisters will not
be considered as
dependents.'
9. In this case, the injured himself has filed the claim petition and
compensation has been awarded to the injured so no deduction was required
to be made towards personal expenses. The learned Tribunal while
awarding compensation on account of suffering disability to the extent of
33% had taken into account the effect of permanent disability suffered by a
person not only in professional life but also in personal life, so no
interference is warranted by this Court on this count.
10. The appeal has not merit and the same is dismissed.
11. Since the injured/respondent No.1 has expired during the pendency
of the appeal and his legal heirs namely Smt.Geeta Sharma - wife, Gautam
& Gaurav - both sons and Vaishali - daughter have been brought on record
as respondents No.1(i) to (iv), it is directed that award amount alongwith
interest accrued thereon be released to the respondents No.1(i) to (iv) in the
following manner:-
(i) Respondent No.1(i) Smt.Geeta (wife) - 40% of award amount
(ii) Respondent No.1(ii) Gautam (son) - 20% of award amount
(iii) Respondent No.1(iii) Gaurav (son) - 20% of award amount
(iv) Respondent No.1(iv) Vaishali
(daughter) - 20% of award amount
12. The statutory amount of ₹25,000/- deposited at the time of filing of
the appeal, shall be released in favour of the appellant/insurance company.
Copy of the order be given dasti to learned counsel for the parties.
CM No.15588/2015 (Modification)
Dismissed as infructuous.
PRATIBHA RANI, J.
SEPTEMBER 01, 2015
'st'
