Delhi High Court
Future Generali India Insurance ... vs Kailash & Ors on 14 March, 2016
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14th March, 2016
+ MAC.APP. 263/2012
FUTURE GENERALI INDIA INSURANCE CO LTD .... Appellant
Through: Mr. Suman Bagga, Pankaj Gupta &
Siddhant Jaiswal, Advs.
versus
KAILASH & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first respondent had suffered injuries in a motor vehicular
accident that occurred at about 03:10 PM on 19.07.2010 involving truck
bearing registration no.HR-74-1340 which was admittedly insured against
third party risk with the appellant/insurance company (the insurer). He
proved to the satisfaction of the tribunal that he was 38 years old on the
relevant date and was earning his livelihood as a driver of three wheeler
scooter (TSR) and further that he had suffered disability to the extent of 25%
permanent in nature, on account of loss of hearing in both ears. The tribunal
adopted minimum wages of skilled worker (`6448/- per month) and
calculated loss of future earning though adding component of future
prospects of increase by 50% awarding total compensation at `5,35,152/-.
This includes `4,64,256/- towards loss of future income due to disability.
The short issue pressed in this appeal is that the element of future prospects
was wrongly factored in.
2. 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.
3. 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 has not led any evidence showing the income was subject to
any periodic increase.
4. In above view, the loss of future income is recalculated without
adding amount of future prospects. Since the loss on account of disability to
the extent of 25% would be (6448÷4) `1612/-, on the multiplier of 15, the
total loss of future income would be (1612x12x15) `2,90,612/-. The
compensation, thus, requires to be reduced by (4,64,256-2,90,160)
`1,74,096/-. The compensation is, therefore, reduced to (5,35,152-1,74,096)
`3,61,056/-, rounded off to `3,62,000/-. It shall carry interest as awarded by
the tribunal.
5. By order dated 14.03.2012, the insurance company had been directed
to deposit the awarded amount with up-to-date interest with the Registrar
General which was to be held in FD for period of six months. Out of said
deposit, fifty percent (50%) was released in terms of the order dated
22.05.2012. The Registrar General shall now calculate the amount payable
to the claimant in terms of the award modified as above and release the
balance to the claimant refunding the excess in deposit with statutory
deposit, if made, to the insurance company.
6. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 14, 2016
ssc
