Delhi High Court
Icici Lombard General Insurance ... vs Manoj Kumar & Ors on 11 May, 2016
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11.05.2016
+ MAC.APP. 33/2014
ICICI LOMBARD GENERAL INSURANCE CO. LTD .... Appellant
Through: Ms.Suman Bagga and Mr. Pankaj Gupta,
Advocates
versus
MANOJ KUMAR & 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 on 03.04.2009 at about 11.45 a.m. near Air Force
Station, Rajokari, New Delhi involving negligent driving of a motor vehicle
described as a dumper bearing registration no.HR-38N-4563 (offending
vehicle) admittedly insured against third party risk for the period in question
with the appellant insurance company (insurer). He instituted an accident
claim case (petition no.211/2010) impleading the insurer, driver and owner
of the offending vehicle as respondents. The tribunal clubbed the said case
with another claim case arising out of the said accident and, by a common
judgment passed on 10.07.2013, upheld the case of the injuries having been
caused due to negligent driving of the offending vehicle. The said finding
has attained finality as it was not challenged further.
2. The tribunal awarded compensation in the sum of `10,79,000/- in
favour of the claimant with interest at the rate of 9% p.a. directing the
insurer to pay though granting recovery rights against the driver and owner
of the offending vehicle on the basis of finding recorded as to the breach of
the terms and conditions of the insurance policy.
3. By the appeal at hand, the insurer questioned the compensation
awarded on account of loss of income for the period of treatment and in
future. It is argued that the assumption of the tribunal that the claimant was
earning `10,000/- p.m. is unfounded and there was no occasion for 30%
future prospects being added over and above the same. It is noted that future
income loss is sought to be compensated on the basis of a finding that the
claimant had suffered functional disability assessed to the extent of 25%
which conclusion is not under challenge.
4. In spite of the notice, the claimant has not been appearing over the last
several dates of hearing. There is no good ground to defer the hearing yet
again.
5. Before the tribunal, the claimant submitted that he was earning his
livelihood as an AC mechanic. He, however, conceded that he had not taken
any qualification in the nature of diploma or certificate for such job. Given
the fact that he would work only to assist a relative also engaged in a
contractual job work of AC repairing, the case of the claimant at best may be
treated as that of a semi-skilled worker. In absence of any formal proof as to
the income being in the range of `10,000/- p.m., the minimum wages of
`4,100/- p.m. for semi-skilled worker at the relevant point of time is
assumed as his income. In these circumstances, the loss of income for six
months (as calculated by the tribunal to be the period of immobility) is
calculated as (`4,100/- x 6) `24,600/-.
6. 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 SCC 166.
7. 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.
8. Since the income has been notionally assessed, there is no scope for
any future prospects being added. The loss of future income on account of
functional disability to the extent of 25% on the multiplier of 18 (claimant
was 21 years old at the relevant point of time) is calculated as (`4,100 x
25/100 x 12 x 18) `2,21,400 /-.
9. Adding `2,07,000/- towards medical expenses, `75,000/- towards
pain and suffering and enjoyment of life and `35,000/- towards special diet,
conveyance and attendant charges, as granted by the tribunal, the total
compensation in the case comes to (`2,21,400/- + 24,600/-+2,07,000/- +
`75,000/- + `35,000/-) `5,63,000/-. Needless to say, it shall carry interest
as levied by the tribunal. The award is modified accordingly.
10. By order dated 15.01.2014, the insurance company had been directed
to deposit the entire awarded amount with upto date interest with the
Registrar General of this court, within the time specified, from which 60%
was allowed to be released, the balance kept in fixed deposit receipt with the
UCO Bank, Delhi High Court branch, New Delhi, initially for a period of
six months to be renewed periodically. The Registrar General shall
calculate the amount payable to the claimant and release the balance, if any,
to him from out of the deposit thus held refunding the excess to the
insurance company. Conversely, if any excess amount has been released to
the claimant, the same shall be liable to be refunded.
11. The statutory amount, if deposited, shall be refunded.
12. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 11, 2016
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