Delhi High Court
Reliance Gen Insurance Co Ltd vs Kalipada Giri & Ors on 12 February, 2016
Author: R. K. Gauba
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12th February, 2016
+ MAC.APP. 463/2010
RELIANCE GEN INSURANCE CO LTD ..... Appellant
Through Mr. Shoumik Mazumdar, Adv.
versus
KALIPADA GIRI & ORS ..... Respondent
Through Mr. O N Sharma, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The insurance company brought this appeal to question the
computation of compensation awarded by the Motor Accident Claims
Tribunal (the Tribunal) by judgment dated 26.02.2010 on claim petition
under Sections 166 and 140 of Motor Vehicles Act, 1988 (MV Act) of
the first respondent, registered as suit No.469/2008, for injuries suffered
in motor vehicular accident that occurred on 23.04.2007 involving truck
bearing registration No.HR 38H 5306 concededly insured with it against
third party risk for the period in question on the ground that the
functional disability of the claimant was wrongly assessed to the tune of
45% qua the whole body.
2. By the impugned judgment, the Tribunal awarded compensation
in the sum of Rs.17,08,758/- out of which the compensation on account
of loss of earning capacity due to disability was assessed to the tune of
Rs.10,80,000/-. It is this calculation which has given rise to the
grievance urged by the appellant.
3. The Tribunal held inquiry into the claim petition in the course of
which the claimant examined himself as PW1, inter alia, on the strength
of his own affidavit (Ex.PW1/A). in the said affidavit he stated that he
was engaged in the business of pan trading (trading in beetle leaves) and
in that course had earned an income of Rs.1,10,980/- during financial
year 2004-05, Rs.1,39,580/- during financial year 2005-06 and
Rs.1,95,675/- during financial year 2006-07. He proved the said income
by placing on record copies of the income tax returns (ITRs) as exhibits.
He also stated in the affidavit that on account of permanent disablement
that he had suffered, he shall not be able to do business as progressively
and to growing profits since it requires extensive travelling which he has
been rendered incapable of. Noticeably, the affidavit was sworn on
01.02.2008 and submitted before the Tribunal on 07.02.2008.
4. The claimant also examined Dr. Sharad Agarwal, Orthopaedic
Surgeon of Max Balaji Hospital (PW2) under whose care he had been
treated from 23.04.2007 till discharge on 19.06.2007 and thereafter as
an outdoor patient in September, 2007. Further, he proved disability
certificate (Ex.P3), which has been issued by a board of doctors
constituted by Chief Medical Officer, Ghaziabad on 28.02.2008,
through Dr. Anil Kumar Singh, Consultant Orthopaedic Surgeon,
Ghaziabad (PW3). The disability certificate (Ex.P3) shows that the
appellant had suffered amputation of right little and index fingers and
also suffered stiffness in the thumb and joints of the right lower limb.
The evidence of PW3 would show that in the accident he had suffered
crush injury of right hand degloving injury of right thigh with multiple
pelvic fracture including both acetabulum fracture. When PW3 was
examined he was called upon by the appellant to clarify the extent of the
disability which had been certified by the board of doctors vide
document Ex.P3. PW3 explained that the disability thus certified is qua
the entire body.
5. The Tribunal accepted the evidence of PW3 to above effect and
proceeded to conclude that the disability suffered by the appellant is
45% of permanent nature qua the entire body and having regard to the
age of 33 years, assessed the loss of future earnings on the basis of
multiplier of 16, assuming the average income of the appellant to be in
the region of Rs.1,50,000/-.
6. It has been argued by the insurance company that since the
disability certificate (Ex.P3) was silent as to whether it is in relation to
whole body, the oral word of PW3 in this regard could not have been
treated as sufficient proof to give finding on functional disability. It was
argued that mere amputation of two fingers of the right hand would not
render a person disabled on permanent basis to the extent of 45% in his
capacity to earn. It was further submitted that the appellant has not
shown by any positive evidence, including in the nature of income tax
returns furnished for the financial years subsequent to 2006-07, to
demonstrate that there had actually been a loss of earnings.
7. Though the respondent (claimant) initially argued that the
insurance company cannot be allowed to raise any grievance with regard
to the computation in absence of any permission under Section 170 of
MV Act, when it was pointed out by the counsel for the appellant that
such a permission was actually taken by order dated 21.08.2008, the
counsel for the claimant did not press the said issue any further. Even
otherwise, in view of the law laid down by the Supreme Court in United
India Insurance Co. Ltd. v. Shila Datta (2011) 10 SCC 509, the said
objection is unmerited.
8. It is true that loss of two fingers of the upper limb by itself cannot
be a reason to conclude that there has been a loss of functional ability to
the extent of 45%. But, as is shown by the disability certificate (Ex.P3),
the amputation of the said two fingers was not the sole reason which
resulted in medical opinion to such effect. The evidence of PW2 and
PW3 read collectively in the light of the disability certificate shows that
on account of fracture of the pelvic region, there has been a permanent
adverse effect on the mobility of the appellant and, therefore, the
opinion given by PW3 during the inquiry, which was not even attempted
to be challenged or refuted by any cross-examination cannot be given a
go by.
9. The contention raised by the insurance company is without
substance and is liable to be rejected.
10. Though the appeal was filed on certain other grounds as well, at
the hearing, the learned counsel for the appellant clarified that no other
point is being urged.
11. By order dated 10.08.2010 the insurance company had been
directed to deposit the entire awarded amount with Registrar General of
this Court and upon said deposit being made the claimant was to be
entitled to receive the same in terms of award upon furnishing requisite
security. There has, however, some confusion as some of the
subsequent orders indicate that only part of the deposited amount has
been actually released. The Registrar General shall now release the
balance lying in deposit to the claimants in terms of the impugned
award.
12. Statutory deposit, if made, shall be refunded.
13. The appeal is disposed of in above terms.
14. Tribunal's record be returned.
R.K. GAUBA
(JUDGE)
FEBRUARY 12, 2016
VLD
