Delhi High Court
National Insurance Company ... vs Sepoy Rakesh Kumar & Ors. on 4 August, 2017
$~R-101 & 101A (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 4th August, 2017
+ MAC.APP.463/2009 and CM APPL.13500-13501/2009
NATIONAL INSURANCE COMPANY LIMITED
..... Appellant
Through: Mr. A.K. Soni, Advocate
Versus
SEPOY RAKESH KUMAR & ORS. ..... Respondents
Through: Nemo.
+ MAC.APP.629/2009
SEPOY RAKESH KUMAR ..... Appellant
Through: Nemo.
Versus
NATIONAL INSURANCE COMPANY LIMITED & ORS.
..... Respondents
Through: Mr. A.K. Soni, Advocate for
R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Rakesh Kumar (appellant in MAC APP.629/2009), then 22
years, a Sepoy in Indian Army, serving in Rajputana Rifles at Delhi
Cantt. while riding motorcycle on 11.11.2004, met with an accident at
about 9:40 a.m. in the area of Dhaula Kuan, Delhi-Gurgaon road, on
account of negligent driving of bus bearing registration No.DL-1PA-
6643, it admittedly being insured against the third party risk for the
period in question with National Insurance Company Limited
(appellant in MAC APP.463/2009) and consequently suffered injuries.
The injuries suffered by him rendered him permanently disabled, it
eventually leading to he being discharged from Army service, the
disability having been certified (Ex.PW-1/D) on 12.12.2006 to be in
the nature of stiff elbow with restricted movement of right shoulder, it
being to the extent of sixty per cent (60%). He filed accident claim
case (Suit No.1037/2004) on 22.12.2004 which, along with another
claim by him towards damage to motorcycle, was put to inquiry. The
Motor Accident Claims Tribunal (the tribunal), by judgment dated
18.04.2009, upheld the claim for compensation on the principle of
fault liability, awarding total compensation in the sum of
Rs.9,58,108/- directing the above mentioned insurance company (the
appellant) to pay with interest @ 7.5% per annum, the said amount
inclusive of Rs.6,48,108/- calculated towards loss of income due to
permanent disability.
2. These two appeals, one by the insurer and the other by the
claimant, challenge computation of loss of income in future due to
permanent disability. The grievance of the insurance company is that
the tribunal fell into error by tripling the income earned at the time of
the accident to reach the conclusion that the income against which
such loss was to be worked out would be in the sum of Rs.10,590/-.
The claimant, on the other hand, by his appeal, has pointed out that the
salary proved by him was in the sum of Rs.8238/- which included
Rs.1,500/- towards ration money and Rs.6,738/- inclusive of basic pay
and other allowances. He pointed out that the tribunal fell into error by
taking up only the basic pay (3,530/-) for calculation. It is also
submitted in the appeal of the claimant that the calculation with the
multiplier of 17 was not proper and further that the assessment of
functional disability to the extent of thirty per cent (30%) was
unjustified.
3. The submission of the claimant in this appeal about wrong
calculation by the tribunal must be accepted. The salary statement
(Ex.PW-1/G) confirms the gross emoluments in the sum of Rs.6,738/-,
the amount of Rs.3,530/- being only the basic pay. Indeed, as member
of Indian Army, he was also entitled to ration money adding which
factor the total emoluments come to Rs.8,238/-per month.
4. The tribunal calculated the notional income by a long winded
reasoning on the speculation that the income of the claimant would
have risen in due course on he being eventually promoted up to the
rank of Subedar Major. Such exercise was not necessary. The element
of future prospects in terms of decision in Sarla Verma (Smt.) & Ors.
v. Delhi Transport Corporation & Anr., (2009) 6 SCC, 121, would be
the correct method and the claimant is entitled to increase to the extent
of 50% in his income. Having regard to the age (23 years) at the
relevant point of time, such calculation would have to be made with
the multiplier of 18. This court, however, upholds the conclusion of
the tribunal about the assessment of functional disability. Taking into
account the nature of injuries suffered, the disability affecting the
earning capacity would not be the same as equivalent to the medical
disability which was in relation to the particular limb affected.
5. Thus, the compensation on account of loss of income due to
functional disability is re-computed as (8238 x 150/100 x 12 x 18 x
30/100) Rs.8,00,733.6 rounded off to Rs.8,01,000/-.
6. Adding the other components awarded by the tribunal, the total
compensation comes to (8,01,000/- + 2,00,000/- + 1,00,000/- +
10,000/-) Rs.11,11,000/-.
7. 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% per
annum from the date of filing of the petition till realization.
8. The award is modified accordingly.
9. By order dated 06.11.2009, passed in MAC APP.463/2009, the
insurance company was directed to deposit the entire awarded amount
with UCO Bank, Delhi High Court, New Delhi within the period
specified. By subsequent order dated 21.12.2009, some portion of the
amount was released into savings bank account of the claimant, the
balance being kept in fixed deposit receipts for various periods with
right to draw periodic interest and to make withdrawals from the said
accounts in terms of the detailed directions. The said fixed deposit
receipts now shall be handed over to the claimant for being availed of
in due course.
10. The insurance company is directed to deposit the enhanced
portion of the award with interest by requisite deposit with Tribunal
within thirty days, making it available to be released to the clamant.
11. The statutory amount shall be refunded to the appellant
insurance company.
12. Both the appeals stand disposed of in above terms.
13. The claimant shall be informed by a copy of this judgment of
being served on him.
R.K.GAUBA, J.
AUGUST 04, 2017
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