Delhi High Court
Royal Sundaram Alliance ... vs Neeraj Arya & Ors. on 27 April, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27th April, 2016
+ MAC.APP. 339/2013
ROYAL SUNDARAM ALLIANCE INSURANCE C O. LTD.
..... Appellant
Through: Ms. Suman Bagga & Mr. Pankaj
Gupta, Advs.
versus
NEERAJ ARYA & ORS. ..... Respondents
Through: Mr. Pramod K. Sing, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first respondent, then aged 16 years, suffered injuries in a motor
vehicular accident that occurred on 22.05.2010 involving negligent driving
of Santro car bearing registration no.DL-9CQ-3203 (the offending vehicle),
admittedly insured against third party risk for the period in question with
appellant/insurance company (the insurer). As a result of injuries, the
claimant has been rendered permanently disabled on account of post
traumatic stiffness of right knee consequent upon fracture of femur and tibia
bones, extent of disability having been certified (Ex.PW3/A) by a board of
doctors of Deen Dayal Upadhyay hospital of Government of NCT, Delhi on
19.09.2012 (page 161 of tribunal's record) to be to the extent of 45% in
relation to the said right lower limb. On the accident claim petition (MACT
case no.312/2010), instituted by him on 20.11.2010, the motor accident
claims tribunal (the tribunal), by its decision dated 02.02.2013, awarded
compensation in the sum of `8,65,194/- with interest at the rate of seven &
half percent (7.5%) per annum from the date of filing petition in his favour
calling upon the insurer to pay, calculating the award as under:-
For loss of earning on account of disability :`7,39,206/-
Medical bills :` 40,988/-
Pain and suffering :` 40,000/-
Conveyance & special diet :` 20,000/-
Loss of amenities :` 25,000/-
Total :`8,65,194/-
(Rupees Eight Lakhs Sixty Five Thousand one hundred and ninety
four only)
2. The insurer by the appeal at hand, questions the calculation of loss of
earnings on account of disability on the ground that the future prospects was
wrongly added in a case where income was notionally assessed at `5850/-
on the basis of minimum wages.
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 SCC166.
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. This applies to the matter at hand because the
claimant here pleaded about gainful employment at a fixed salary and has
not led any evidence showing the salary was subject to any periodic
increase.
5. In the case of 16 years old person where the income has been
notionally assessed, there being no proof of progressive rise in the income,
the element of future prospects has to be kept out of consideration.
6. On the multiplier of 18, the loss of future earnings due to disability to
the extent of 45% is calculated as (5850x45/100x12x18) `5,68,620/-.
Adding the other elements awarded by the tribunal, the total compensation
in the case comes to (5,68,620+40,988+40,000+20,000+25,000) `6,94,608/-
, rounded off to `6,95,000/-.
7. Following the consistent view taken by this Court [see judgment dated
22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta
Devi & Ors.], the rate of interest is increased to 9% per annum from the date
of filing of the petition till realization.
8. The award is modified as above.
9. By order dated 15.04.2013, the insurance company had been directed
to deposit the entire awarded compensation with up-to-date interest with the
Registrar General and out of such deposit 60% was allowed to be released,
the balance kept in fixed deposit receipt with UCO Bank, Delhi High Court
branch for a period of six months to be renewed periodically. The Registrar
General shall calculate the amount payable to the claimants in terms of
the award modified as above and release the balance to them refunding
the excess in deposit with statutory deposit, if made, to the insurance
company.
10. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 27, 2016
ssc
