Delhi High Court
Reliance General Insurance Co. ... vs Intzar Ali & Ors on 31 August, 2017
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31st August, 2017
+ MAC.APP. 216/2016 and CM 8367/2016
RELIANCE GENERAL INSURANCE CO. LTD .... Appellant
Through: Mr. A.K. Soni, Advocate
versus
INTZAR ALI & ORS ..... Respondents
Through: Mr. S.N. Parashar and Ms. Pankaj
Kumari, Advocates for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent, then aged 26 years, working for gain as a
driver on motor vehicle described as a van bearing registration no.DL-
7CB-1004 suffered injuries in a motor vehicular accident that occurred
on 24.06.2012 at about 12.10 p.m. due to negligent driving of another
motor vehicle, it being tempo bearing registration no. UP-17T- 4654
which was admittedly insured against third party risk with the
appellant / insurance company (insurer), the injuries suffered
including multiple fractures including Open Grade Fracture SOF(R),
Open Grade-IIB Fracture and Open Grade IIIA both bone leg fracture.
The treatment that was administered included surgical procedures in
which nail and plate were implanted. The victim (claimant), however,
was rendered permanently disabled, the disability being described as
locomotor impairment assessed by a board of doctors of Guru Tegh
Bahadur Hospital, Delhi on 11.08.2014 vide disability certificate (Ex.
P-2) to be in relation to right lower limb.
2. The victim filed accident claim case (MACT 306/12) on
25.08.2012 seeking compensation on the principle of fault liability
impleading the aforementioned insurer in addition to the driver and
owner of the offending vehicle as party respondents.
3. The Motor Accident Claims Tribunal (Tribunal) held inquiry
and, by judgment dated 11.01.2016, awarded compensation in the total
sum of Rs.10,40,473/- fastening the liability on the insurer to pay with
interest at the rate of 9% p.a.
4. The insurer is in appeal raising several grievances, first being
that negligence on the part of the vehicle in question was not properly
proved as no other witness in corroboration was examined. It is noted
that the claimant had appeared during the inquiry as his own witness
(PW-1) deposing on the strength of the affidavit (PW1/A) on which he
was cross-examined. In the said affidavit, he narrated the sequence of
events leading to the occurrence bringing out that it is the insured
vehicle which was driven negligently in violation of the traffic rules,
having hit the vehicle driven by the claimant, it in turn being on the
correct side of the road and moving at normal speed. Noticeably, the
driver of the offending vehicle did not appear in witness box nor was
called upon to do so by any of the contesting parties. The statement of
PW-1 finds corroboration from the record of the corresponding
criminal case and, therefore, the finding about negligence has been
properly reached.
5. The Tribunal had assessed the functional disability of the
claimant at 28% taking into account, inter alia, the medical opinion
referred to above and also the nature of avocation of the claimant. The
grievance of the insurance company in such regard does not merit
acceptance. The conclusion reached by the tribunal is based on sound
reasoning and so does not call for any interference.
6. It is, however, noted that the tribunal assumed the income of the
claimant with the help of minimum wages (Rs.8,528/-) but added the
element of future prospects of increase to the extent of 50%. The
insurance company questions the element of future prospects being
factored in.
7. 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.
8. 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.
9. In the given facts and circumstances where there is no cogent
proof of employment or earnings of the claimant, the element of future
prospects will have to be kept out.
10. Thus, the loss of earnings in future due to disability, with the
help of multiplier of 17, correctly chosen, is re-computed as
[Rs.8,528/- x 28/100 x 12 x 17) Rs.4,87,119/-. Since the tribunal had
awarded Rs.7,30,679/- under this head, the award needs to be reduced
by [Rs.7,30,679/- (-) Rs.4,87,119/-] Rs.2,43,560/-.
11. The award is, thus, reduced to (Rs.10,40,473/- (-) Rs.2,43,560/-]
Rs.7,96,913/-, rounded off to Rs.7,97,000/- (Rupees Seven Lakh and
Ninety Seven thousand only). Needless to add, it shall carry interest
as levied by the tribunal.
12. By order dated 08.03.2016, the insurance company had been
directed to deposit the entire awarded amount with up-to-date interest
with the tribunal, out of which forty percent (40%) was allowed to be
released to the claimants and the balance ordered to be kept in interest
bearing account. The balance with interest, in terms of the modified
award, shall now be released to the claimants, refunding the excess,
with corresponding interest, to the appellant / insurance company.
13. The statutory amount shall also be refunded to the appellant
/insurance company.
14. The appeal along with accompanying application stands
disposed of in above terms.
R.K.GAUBA, J.
AUGUST 31, 2017
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