Delhi High Court
Iffco Tokio General Insurance ... vs Surender Kumar And Ors. on 5 April, 2016
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 5th April, 2016
+ MAC.APP. 523/2013
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.
..... Appellant
Through: Ms. Suman Bagga and Mr. Pankaj
Gupta, Advs.
versus
SURENDER KUMAR AND ORS. ..... Respondent
Through: Mr. O P Mainnie, Mr. Manish Maini,
Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first respondent (claimant) had suffered injuries in a motor
vehicular accident that occurred on 25.11.2011 as a result of negligent
driving of three wheeler scooter bearing registration No. DL-1RK-2991 (the
offending vehicle) by its driver Gurcharan Singh (second respondent), the
said vehicle being admittedly insured against third party risk with the
appellant insurance company (the insurer) for the period in question. The
claimant preferred an accident claim case under Sections 166 and 140 of
Motor Vehicles Act, 1988 (MV Act) on 23.04.2009 before the motor
accident claims tribunal (tribunal), which registered it as MACT case
No.378/2009, impleading the driver and insurer of the offending vehicle in
addition to the owner as respondents. The case was decided by the tribunal
by judgment dated 10.09.2012 awarding compensation in the sum of
Rs.9,63,907/-, with interest at 9% per annum from the date of filing of the
petition till realization, calculating it thus :
Pecuniary damages (Special damages):
Loss of future income ------------------------- Rs. 5,02,697/-
Medical expenses ------------------------------ Rs. 11,210/-
Special diet expenses -------------------------- Rs. 25,000/-
Conveyance charges --------------------------- Rs. 25,000/-
Future medical expenses ---------------------- Rs. 2,00,000/-
Non-pecuniarv damages (General damages)
Pain, suffering, mental shock and trauma -- Rs. 1,00,000/-
Loss of amenities ------------------------------- Rs. 1,00,000/-
Total Rs. 963,907/-
2. The insurer, having been fastened with the liability to pay has come
up in appeal questioning the computation of compensation under the heads
of loss of future income and future medical expenses. It is argued that the
income of the claimant was notionally assessed (Rs.4,107/-) on the basis of
minimum wages of a skilled person but future prospects to the extent of
50% were wrongly added thereupon. It is argued that the claimant, having
suffered 40% functional disability, permanent in nature, the future loss of
income should have been calculated only on the basis of notional income of
Rs.4,107/-, though concededly on the multiplier of 17 (inasmuch as his age
at the relevant point of time was 27).
3. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia, ruled
that the element of future prospects of increase in income will not be
granted in cases where the deceased was "self employed" or was working
on a "fixed salary". Though this view was affirmed by a bench of three
Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan Mohan & Anr.,
(2013) 9 SCC 65, on account of divergence of views, as arising from the
ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9 SCC 54, the issue was
later referred to a larger bench, inter-alia, by order dated 02.07.2014 in
National Insurance Company Ltd. vs. Pushpa & Ors., (2015) 9 SCC 166.
4. Against the above backdrop, by judgment dated 22.01.2016 passed in
MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.), this Court has
found it proper to follow the view taken earlier by a learned single judge in
MAC Appeal No. 189/2014 (HDFC Ergo General Insurance Co. Ltd. v.
Smt. Lalta Devi & Ors.) decided on 12.1.2015, presently taking the
decision in Reshma Kumari (Supra) as the binding precedent, till such time
the law on the subject of future prospects for those who are "self-
employed" or engaged in gainful employment at a "fixed salary" is clarified
by a larger bench of the Supreme Court.
5. Thus, the future loss of income is recomputed without the element of
future prospects. On the functional disability to the extent of 40%, the loss
of monthly income comes to (4107 x 40 ÷ 100) Rs.1,643/-. On the
multiplier of 17, the total loss of future income comes to (1643 x 12 x 17)
Rs.3,35,172/-.
6. Indeed, the award of Rs.2 lakhs towards future medical expenses has
no legs to stand on. The claimant himself, in his affidavit (Ex.PW2/A), had
stated (para 10) that future medical expenses would be to the tune of
Rs.15,000/- to Rs.20,000/-. It appears the figure of Rs.20,000/- was
wrongly read so as to taken as Rs.2 lakhs. Suitable correction needs to be
made. Therefore, future medical expenses are reduced to Rs.20,000/-.
7. Adding the other components awarded by the tribunal, the total
compensation in the case comes to (3,35,172 + 11,210 + 25,000 + 25,000 +
20,000 + 1,00,000 + 1,00,000) Rs.6,16,382/-, rounded off to Rs.6,17,000/-.
Needless to add, the amount shall carry interest as levied by the tribunal.
The award is modified accordingly.
8. By order dated 30.05.2013, the insurance company had been directed
to deposit entire awarded amount with up-to-date interest with the Registrar
General out of which 70% was allowed to be released. The Registrar
General was further directed to keep the rest of the amount in the form of
FDR with UCO Bank, Delhi High Court Branch initially for a period of six
months to be renewed periodically.
9. The Registrar General is now directed to calculate the amount
payable to the claimant in terms of the above directions and release the
same with proportionate interest in his favour. If there is any shortfall, the
same shall be deposited by the insurance company with the Registrar
General within 30 days of today. On the other hand, if excess has been
deposited or released, the same shall be refunded with statutory deposit, if
made.
10. The appeal stands disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 05, 2016
VLD
