Delhi High Court
New India Assurance Co Ltd vs Balwan Singh & Ors on 14 March, 2016
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14th March, 2016
+ MAC.APP. 686/2012 & CM APPL. 11083/2012, 11085/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Sameer Nandwani, Adv.
versus
BALWAN SINGH & ORS ..... Respondents
Through: Mr. S. N. Parashar, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first respondent suffered injuries in a motor vehicular accident
that occurred at about 09:15 PM on 23.03.2006 in the area of village
Kuanwala opposite Sharab Factory Uttranchal involving truck bearing
registration no.UHQ-0857 (the offending vehicle) which was admittedly
insured against third party risk with the appellant/insurance company (the
insurer). He brought the claim petition before the motor accident claims
tribunal (the tribunal) which registered it as MACT case no.272/10/2006
wherein he impleaded, in addition to the insurer, the driver and
owner/insured in respect of the offending vehicle as respondents. The
tribunal, after inquiry, awarded compensation in the sum of `17,76,755/-
with interest in favour of the claimant directing the insurance company to
pay in terms of the indemnity clause under the insurance policy. The
tribunal further added `50,000/- as fee to the counsel for the petitioner.
2. The tribunal calculated the compensation payable in the case at hand
thus:
Pecuniary damages (Special damages):
Loss of income Rs. 24,114/-
Loss of earning capacity Rs. 8,68,104/-
Medical expenses Rs. 2,52,182/-
Special diet Rs. 40,000/-
Conveyance charges Rs. 42,355/-
Attendant charges Rs. 50,000/-
Future medical expenses Rs.2,00,000/-
Non-pecuniarv damages (General damages):
Pain, sufferings & trauma Rs. 1,50,000/-
Loss of amenities, enjoyment of life, etc. Rs, 1,50,000/-
Total Rs. 17,76,755/-
3. The insurance company is aggrieved with the compensation
calculated for loss of earning capacity in the sum of `8,68,104/- and the
awards under the heads of attendant charges and future medical expenses
submitting that there is no basis for the same. It questions the direction with
regard to payment of counsel fee as well.
4. It is noted that the claimant had suffered permanent disability assessed
by a medical board vide certificate dated 05.04.2008 (Ex.PW3/A) to be to
the extent of 80% in relation to brachial plexus injury in the right upper
limb. The tribunal after carefully examining the issue assessed functional
disability to be to the extent of forty percent (40%) affecting the future
income and on the basis of age of the claimant at the relevant point of time
(36 years) calculated the loss of future income at `8,68,104/- due to
disability, taking `12,057/- as the salary.
5. The grievances of the insurance company is with regard to the
adoption of the multiplier of 15. It points out that the claimant was working
as dresser in Dr. Baba Saheb Ambedkar Hospital, Sector-6, Rohini, Delhi, at
the time of accident and that there has been no loss of employment. In these
circumstances, the learned counsel for the claimant fairly conceded that the
loss of future income deserves to be calculated on the basis of multiplier of
9, in view of the fact that future earnings would be effected only after the
claimant superannuates from government service at the age of 60.
6. In above view, the loss of future income should have been calculated
at (12,057x40÷100x12x9) `5,20,862/-.
7. The awards of `50,000/- and `2,00,000/- on account of attendant
charges and future medical expenses have been made without any proof of
such expenditure having been recommended. Having regard to the nature of
injuries suffered and their effect on the upper left limb, there is no
justification for any attendant charges while `25,000/- should suffice
towards the need for future medical expenses.
8. In above view, upon adding other heads of damages awarded by the
tribunal, the total compensation comes to
(5,20,862+24,114+2,52,182+40,000+42,355+25,000+1,50,000+1,50,000)
`12,04,513/-, rounded off to `12,05,000/-.
9. The compensation is reduced accordingly. It shall carry interest at the
rate levied by the tribunal. There is no justification for the direction with
regard to counsel fee. The said part of the order of the tribunal is set aside.
10. The insurance company had been directed by order dated 24.09.2012
to deposit the awarded compensation with up-to-date interest with UCO
Bank, Delhi High Court branch, New Delhi, within the period specified.
The amount was allowed to be released to the claimant by order dated
29.11.2013. Since the compensation has been reduced, the claimant will be
duty bound to refund the excess amount received by him. The learned
counsel assures that the needful compliance would be done within 30 days,
failing which the insurance company will be entitled to take out appropriate
execution proceedings before the tribunal.
11. The statutory deposit, if made shall be refunded.
12. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 14, 2016
ssc
