Delhi High Court
Reliance General Insurance Co Ltd vs Kamal Verma & Ors on 27 April, 2016
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27th April, 2016
+ MAC.APP. 562/2013
RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. A. K. Soni, Adv.
versus
KAMAL VERMA & ORS ..... Respondents
Through: Mr. R. P. Tomar, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first respondent (the claimant), then aged about 22 years, earning
his livelihood by running the business of art gallery and paying income tax,
suffered injuries and permanent disability on account of a motor vehicular
accident that occurred on 30.09.2009 involving negligent driving of truck
bearing registration no.HR-38L-0947 (the offending vehicle), admittedly
insured against third party risk with the appellant/insurance company (the
insurer). As a result of injuries suffered, his left leg above knee up-to lower
one third thigh left had to be amputated. The claimant having been
examined by a medical board constituted by Deen Dayal Upadhyay hospital
of the Government of NCT, Delhi, has been certified (Ex.P-1/Q) to have
suffered permanent disability on this account, it having been assessed to the
extent of 80% in relation to the said lower limb. The tribunal held inquiry
into his claim petition (S-89/10/09) which was instituted on 28.10.2009
invoking Section 166 of the Motor Vehicles Act, 1988 (the MV Act) and, by
judgment dated 25.03.2013, which was corrected by order dated 30.05.2013,
awarded total compensation of `21,55,592/- with interest at the rate of seven
& half percent (7.5%) per annum, the said amount inclusive of `11,99,752/-
calculated as loss of earning capacity in future which is the bone of
contention raised in the present appeal by the insurer that has been called
upon to satisfy the award.
2. The tribunal by the impugned judgment concluded functional
disability to be to the tune of 50%. It held that the monthly loss of income is
`4272.62, on the basis of income tax return for the assessment year 2008-
2009, however, after adding the element of 30% of future prospects of
increase. This, in the submission of the insurer, was erroneous.
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. The learned counsel for the claimant fairly concedes that since the
claimant is self employed person, the loss of future capacity has to be
calculated without adding the element of future prospects. In this view, the
total award payable on account of loss of future earning capacity is
calculated as (4272.62x12x18) `9,22,885.92, rounded off to `9,22,886/-.
Therefore, the compensation awarded by the tribunal has to be reduced by
(11,99,752-9,22,886) `2,76,866/-. Thus, the compensation awarded is
reduced to (21,55,592-2,76,866) `18,78,726/-, rounded off to `18,80,000/-.
6. 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.
7. The award is modified as above.
8. By order dated 05.07.2013, the appellant was directed to deposit the
entire awarded amount up-to-date interest, out of which 60% was allowed to
be released.
9. The Registrar General shall now recalculate the amount payable to the
claimant in terms of award modified as above and release the same from out
of the balance. If any excess has been deposited, the same shall be refunded.
Conversely, if there is a shortfall, the insurer shall be duty bound to deposit
the same with the tribunal within 30 days whereupon it shall be released to
the claimant.
10. The statutory deposit, if made, shall be refunded.
11. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 27, 2016
ssc
