Delhi High Court
Icici Lombard General Insurance ... vs Amod Kumar & Ors on 18 April, 2016
$~2& 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18th April, 2016
+ MAC.APP. 197/2014
ICICI LOMBARD GENERAL INSURANCE
CO. LTD. ........ Appellant
Through: Mr. Pankaj Gupta, Adv.
versus
AMOD KUMAR & ORS ..... Respondents
Through: Mr. Manu Shahalia, Adv. for
R-1.
+ MAC.APP. 116/2015
AMOD KUMAR & ORS ........ Appellants
Through: Mr. Manu Shahalia, Adv.
versus
ICICI LOMBARD GENERAL INSURANCE
CO. LTD. ..... Respondent
Through: Through: Mr. Pankaj Gupta,
Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Amod Kumar (appellant in MAC Appeal No. 116/2015) suffered
injuries on 15.09.2012 while crossing the road when he was hit by truck
bearing registration No. HR 38K 0664, statedly driven in rash manner by
Ravinder. The injuries sustained included crushed left leg which had to be
amputated rendering him permanently disabled, the disability having been
certified (Ex.PW-1/8) to be to the extent of 80%. He filed an accident
claim case (Suit No. 638/2012) seeking compensation under Sections 166
and 140 of Motor Vehicles Act, 1988 (MV Act) on 15.12.2012 impleading
Ravinder (the driver) and Sarabjeet Singh (the owner of the offending
vehicle) as first and second respondents, in addition to ICICI General
Insurance Company Ltd. (appellant in MAC appeal No. 197/2014) as the
third respondent, it admittedly being the insurer against third party risk in
respect of the offending vehicle for the period in question. The motor
accident claims tribunal (the tribunal) by judgment dated 26.09.2013 held
that the accident had occurred due to rash driving of the truck and awarded
compensation with interest at 9% per annum, calculating it thus:-
1. Compensation for treatment ` 4692/-
expenses
2. Compensation for pain & suffering ` 1,00,000/-
3. Compensation for special diet & ` 45,000/-
conveyance
4. Compensation for loss of income ` 50,000/-
during treatment
5. Compensation for loss of future ` 12,88,812/-
income
6. Compensation for loss of amenities ` 1,00,000/-
and enjoyment of life
7. Attendant charges `1,00,000/-
8. Compensation for loss of marriage ` 50,000/-
prospects
9. Compensation for disfigurement ` 50,000/-
10. Compensation for future medical ` 1,50,000/-
expense
Total ` 19,38,504/-
2. Before the tribunal, the insurer had taken the plea that there was
breach of terms and conditions of the insurance policy as the truck was plied
on public roads in Delhi without a valid permit inasmuch as the permit
shown relates to the State of Haryana. It was also submitted that the vehicle
was not roadworthy, the driver and owner having relied on a fitness
certificate which, upon verification, was found to be fake. The driver and
owner did not participate in the inquiry and would not lead any evidence in
defence. The insurance company examined Vivek Yadav (R3W1) Manager
(Legal) to prove the above-mentioned contentions. The tribunal, however,
declined to uphold any breach of terms and conditions of the insurance
policy and, thus, rejected the plea for recovery rights to be granted.
3. The insurer has come up in appeal (MAC Appeal No. 197/2014)
pressing for recovery rights. By his appeal (MAC Appeal No. 717/2016),
Amod Kumar (the claimant) seeks enhancement of the compensation on the
ground that the factor of future increase in the minimum wages on the basis
of which loss of future income has been assessed deserved to be factored in.
He also seeks enhancement of the compensation towards future medical
expenses.
4. 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.
5. 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.
6. The ground on which the claimants seeks enhancement cannot be
upheld. The income of the claimant was assessed, in absence of proper
proof, on the basis of minimum wages (Rs.7,020/-). In above facts and
circumstances, the loss of future income has been rightly calculated without
the element of future prospects being added.
7. It is noted that though the disability certificate showed the extent of
disability to be 80% in relation to the left lower limb, but the tribunal has
assessed it to be 90% as the loss of earning capacity and applied the
multiplier of 17, awarding the amount towards loss of future income. On
being asked, the learned counsel for the claimant fairly conceded that no
evidence was led to show future medical expenses. In these circumstances,
the award granted by the tribunal on this score cannot be faulted.
8. Even if the fact that the permit was only with regard to the State of
Haryana was to be ignored, the fact that the vehicle was not roadworthy
inasmuch as it was being plied on public roads on basis of fake fitness
certificate justifies the plea of the insurer about breach of terms and
conditions of the insurance policy. Therefore, the appeal of the insurance
company must be upheld. Whilst it has been ready and willing to satisfy the
award of compensation granted in favour of the third party, it is entitled to
recovery rights against the owner (insured).
9. The appeal of the claimant is dismissed while the appeal of the insurer
is allowed. It is granted right to recover the compensation paid to the
claimant in this case from the owner (insured) in respect of the offending
vehicle by appropriate proceedings before the tribunal.
10. By order dated 3rd March, 2014, the insurance company had been
directed to deposit the entire awarded compensation with upto date interest
with the tribunal whereupon 80% was allowed to be released. The tribunal
shall release the balance to the claimant.
11. Statutory deposit, if made by the insurance company, shall be
refunded.
12. The appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 18, 2016
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