Delhi High Court
Vikas Kumar & Ors. vs New India Assurance Company Ltd. & ... on 6 December, 2017
$~R-647 and R-650
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 06th December, 2017
+ MAC APPEAL 1168/2012 and CM 18881/2012
NEW INDIA ASSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Praveen Sehrawat and Mr.
Abhishek Kumar, Advocate
versus
VIKAS KUMAR & ORS. ..... Respondents
Through: Mr. O.P. Mannie, Adv. for R-1
+ MAC APPEAL 346/2014
VIKAS KUMAR & ORS. ..... Appellants
Through: Mr. O.P. Mannie, Adv. for A-1
versus
NEW INDIA ASSURANCE COMPANY LTD.
& ANR. ... Respondents
Through: Mr. Praveen Sehrawat and Mr.
Abhishek Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Both these appeals arise out of the judgment of the Motor
Accident Claims Tribunal (Tribunal), dated 23.03.2012 in accident
claim case (MACT 368/10/06), instituted on 31.03.2006, by Vikas
Kumar, appellant in MACA 346/2014 and first respondent in MACA
1168/2012 (hereinafter referred to as the "claimant"). By the said
judgment, the tribunal awarded compensation in the total sum of
Rs.11,13,539/-, in favour of the claimant for the injuries suffered by
him in a motor vehicular accident that occurred on 17.02.2006 due to
negligent driving of a truck bearing registration no.HR-39-3351 which
was admittedly insured against third party risk for the period in
question with New India Assurance Company Ltd., appellant in
MACA 1168/2012 and first respondent in MACA 346/2014
(hereinafter, referred to as the "insurer").
2. The liability to pay the above mentioned amount was fastened
on the insurer with interest at the rate of 7.5% p.a. levied, the amount
having been calculated thus :-
A. PECUNIARY DAMAGES
(SPECIAL DAMAGES)
Medical Bills & Expenses Rs.2,23,995/-
Future medical expenses Rs.25,000/-
Special diet Rs.30,000/-
Conveyance charges Rs.30,000/-
Loss of income Rs.22,314/-
Future loss of income Rs.5,42,230/-
B. NON PECUNIARY DAMAGES
(GENERAL DAMAGES
Loss of amenities and enjoyment of Rs.70,000/-
life
Loss of marriage prospects and Rs.1,00,000/-
shortening of life
Pain and suffering, inconvenience, Rs.70,000/-
frustration, hardship and trauma
TOTAL Rs.11,13,539/-
3. The insurer by its appeal (MACA 1168/2012) questions the
award on the grounds that the compensation granted is excessive, as
future prospects have been wrongly added, the functional disability
assessed is unduly high and that non-pecuniary heads of damages
included in the award are unduly high.
4. Per contra, the claimant by his appeal (MACA 346/2014),
argues that the award is inadequate as the income has been wrongly
assessed with the help of minimum wages and that it should have been
accepted at Rs.5,000/- p.m. The claimant also submits that the award
should have included attendant charges and that the rate of interest
levied is unduly low.
5. It is noted that the claimant had suffered grievous injuries in the
lower limbs. He was examined by a board of doctors of Babu
Jagjeevan Ram Memorial Hospital, Jahangir Puri of the Govt. of NCT
of Delhi, which issued disability certificate (Ex. PW6/285) to the
effect that he is a case of permanent physical impairment to the extent
of 45% in relation to the crush injury in the left thigh with stiffness of
the left knee. The tribunal has taken the functional disability at 45%
and granted the award of future loss of income on such basis.
6. It is noted that the claimant had pleaded that he was a qualified
draftsman and earning his livelihood accordingly, his income being in
the sum of Rs.5,000/- p.m. He produced National Trade Certificate
(Ex. PW6/262), showing that he had completed the course of training
leading to the diploma in the trade of Draftsman (Mechanical) in July,
2004. But then, there was no clear proof adduced of any regular
employment or earnings. The tribunal assumed the income notionally
on the minimum wages of an unskilled worker at Rs.3,719/- p.m.
(which were payable for matriculate).
7. The calculation by the tribunal, however, fell into error by
adding the element of future prospects of increase in income to the
extent of 50%. Going by the ruling of a Constitution Bench of the
Supreme Court rendered on 31.10.2017 in SLP (C) 25590/2014,
National Insurance Company Ltd. Vs. Pranay Sethi and Ors., this will
have to be capped at 40%. Thus, while there is no case made out for
any reduction in the assessment of functional disability, the loss of
future income is recomputed as [Rs.3,719/- x 140/100 x 45/100 x 12 x
18] Rs.5,06,081.52, rounded off to Rs.5,06,082/-. The award under
the head of loss of future income due to disability is required to be
reduced by [Rs.5,42,230/-(-) Rs.5,06,082/-] Rs.36,148/-.
8. It is noted that the intensive treatment had continued till
September 2007. Keeping this in mind, award of Rs.50,000/- towards
attendant charges is added. The awards under the other heads are
found to be just and proper and, therefore, there is no need for any
modification in their respect.
9. Consequently, the award needs to be increased marginally by
[Rs.50,000/- (-) Rs.36,148/-] Rs.13,852/-. It is, thus, increased to
[Rs.11,13,539/- + Rs.13,852/-] Rs.11,27,391/-, rounded off to
Rs.11,28,000/- (Rupees Eleven lakh and twenty eight thousand only).
10. It is noted that the rate of interest is on the lower side.
Following the consistent view taken by this Court, the rate of interest
is increased to 9% (nine percent) per annum from the date of filing of
the petition till realization. [see judgment dated 22.02.2016 in
MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi &
Ors.].
11. By order dated 07.11.2012 in MACA 1168/2012, the insurance
company had been directed to deposit 75% of the awarded amount
with up-to-date interest with the UCO Bank, Delhi High Court Branch
and from out of such deposit, fifty percent (50%) of the award was
released to the claimant. Since the award has been increased, the
Registry shall release the balance lying in deposit with accrued interest
to the claimant. The insurer will be obliged to satisfy the enhanced
award by requisite deposit with the tribunal within 30 days making it
available to be released to the claimant.
12. The statutory amount paid by the insurer shall be refunded after
proof is shown of the award having been satisfied.
13. Both appeals and the pending application stand disposed of in
above terms.
R.K.GAUBA, J.
DECEMBER 06, 2017
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