Delhi High Court
The New India Assurance Company ... vs Rahul & Ors. on 24 May, 2016
$~17 & 18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th May, 2016
+ MAC.APP.279/2013
THE NEW INDIA ASSURANCE COMPANY LTD..... Appellant
Through: Mr. K.K. Bhat, Adv..
versus
RAHUL & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Adv. for R-1.
AND
+ MAC.APP.505/2015
RAHUL ..... Appellant
Through: Mr. Anshuman Bal, Adv.
Versus
THE NEW INDIA ASSURANCE COMPANY LTD..... Respondents
Through: Mr. K.K. Bhat, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Rahul (appellant in MAC Appeal No. 505/2015), then aged 9 years,
suffered injuries in a motor vehicular accident that occurred on 04.05.2006
involving negligent driving of bus bearing registration No. DL 1PB 4719
(the offending vehicle), admittedly insured against third party risk for the
period in question with New India Assurance Company Ltd. (appellant in
MAC Appeal No. 279/2013). The injuries included degloving injury in
lower abdomen, left thigh, fractured pelvis, ruptured urethra and dislocation
of left hip joint. It required surgical procedure wherein drafting was done
and catheter inserted in the abdominal region to enable him to pass urine
besides an artificial tube fixed just above his male organ. He was examined
by a board of doctors of Deen Dayal Upadhyay Hospital which opined he to
be a case of traumatic ankylosis of left hip joint and non-union fracture neck
of femur rendering him permanently physically disabled 56.5% (fifty six
point five) in relation to lower limbs. The disability suffered has been found
to be permanent in nature.
2. Upon accident claim petition (case No. 954/2008) instituted on his
behalf on 12.05.2006, the tribunal held inquiry and, by judgment dated
08.01.2013, returned a finding about injuries and disability having been
suffered due to accident caused on account of negligent driving of the
offending vehicle. Compensation in the sum of ` 15,91,691/- was awarded
with interest @ 7.5% per annum, it having been calculated thus:
Sr. No. Compensation under various heads Awarded by
this Court
1. Loss of earning Capacity (on the Rs.9,72,691/-
salary of matriculate ( Rs. 3464 +
30%(inflation x12x18)
2. Pain and Suffering Rs.1,50,000/-
3. Loss of Amenities Rs.1,50,000/-
4. Disfigurement and loss of marriage Rs.1,00,000/-
prospects
5. Special Diet upto date of Award Rs.50,000/-
(Rs.25,000) conveyance upto the
date of Award
6. Future Conveyance Rs.50,000/-
7. Future Special Diet Rs. 50,000/-
8. Future Treatment Rs.50,000/-
9. Medical Treatment upto the date of Rs. 20,000/-
the award
Total Rs.15,91,691/-
3. The insurer which has been fastened with the liability by its appeal
questions the computation of compensation submitting that it is exorbitant.
Per contra, the claimant is in appeal stating that the amount towards pain &
suffering is inadequate and he deserved separate award under the head of
loss of marriage prospects and further that the rate of interest levied is on the
lower side.
4. Having heard counsel on both sides and perusing the record, it is
found that the tribunal has followed the judgment of this Court in another
similarly placed case decided on 03.08.2012 as FAO No. 445/2000 Sanjay
vs. Suresh Chand & Ors. In these circumstances, the calculation of loss of
earning capacity and the awards under the various heads of non-pecuniary
damages cannot be faulted.
5. It is, however, noted that the tribunal has combined the award of `
1,00,000/- under two separate heads namely disfigurement and loss of
marriage prospects. Given the fact that surgical procedures has resulted in
appellant being constrained to carry, throughout his life, an artificial catheter
and artificial tube inserted just above his male organ, separate award under
the said two heads deserved to be granted. Therefore, the award of `
1,00,000/- is treated to be granted towards disfigurement and further `
1,00,000/- is granted towards loss of marriage prospects. Given the nature
of injuries suffered, the award on account of pain & suffering is increased to
` 2,00,000/-.
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% from the date of filing of
the petition till realization.
7. The award is modified accordingly.
8. By order dated 22.03.2013 (in MAC Appeal No. 279/2013), the
insurance company had been directed to deposit the entire awarded amount
with upto date interest with UCO Bank, Delhi High Court Branch within the
period specified whreupon 80% was allowed to be released, the balance kept
in fixed deposit receipt with UCO Bank, Delhi High Court Branch. The
Registrar General shall now release the balance amount kept in fixed deposit
receipt to the claimant. The insurance company shall be obliged to pay the
remainder of its liability under the modified award by requisite deposit with
the tribunal within 30 days making it available to be released.
7. The statutory deposit, if made, shall be refunded after it is confirmed
that the award has been satisfied.
8. Both appeals are disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 24, 2016/nk
