Delhi High Court
Ashwini @ Sonu & Ors. vs New India Assurance Company Ltd. on 6 December, 2017
$~R-648 and R-649
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 06th December, 2017
+ MAC APPEAL 1170/2012 and CM 18939/2012
NEW INDIA ASSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Praveen Sehrawat and Mr.
Abhishek Kumar, Advocates
versus
ASHWINI @ SONU & ORS. ..... Respondents
Through: Mr. O.P. Mannie, Adv. for R-1
+ MAC APPEAL 589/2013
ASHWINI @ SONU & ORS. ..... Appellants
Through: Mr. O.P. Mannie, Advocate
versus
NEW INDIA ASSURANCE COMPANY LTD. ... Respondent
Through: Through: Mr. Praveen
Sehrawat and Mr. Abhishek
Kumar, Advocates
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 on accident
claim case (MACT no.367/10/06) instituted on 31.03.2006 by
Ashwini @ Sonu, appellant in MACA 589/2013 and first respondent
in MACA 1170/2012 (hereinafter referred to as the "claimant"). By
the said judgment, the tribunal awarded compensation in the total sum
of Rs.7,29,181/- 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 No.1170/2012 and first respondent in MACA No.589/2013
(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.14,885/-
Special diet Rs.10,000/-
Conveyance charges Rs.10,000/-
Loss of Income Rs.22,314/-
Future loss of income Rs.4,81,982/-
B. NON PECUNIARY DAMAGES
(GENERAL DAMAGES
Loss of amenities and enjoyment of Rs.50,000/-
life
Loss of marriage prospects and Rs.70,000/-
shortening of life
Pain and suffering, inconvenience, Rs.70,000/-
frustration, hardship and trauma
TOTAL Rs.7,29,181/-
3. The insurer, by its appeal (MACA No.1170/2012), 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 excessive.
4. Per contra, the claimant, by his appeal (MACA No.589/2013)
argues that the award is inadequate as the income has been wrongly
assessed with the help of minimum wages and it should have been
accepted at Rs.5,000/- p.m. The claimant also submits that the award
should have included attendant charges and suitable provision for
surgical procedure, the rate of interest levied being unduly low.
5. It is noted that the injuries included amputation of great toe and
loss of soft skin of the left ankle and right leg. The claimant was
examined by a board of doctors of Babu Jagjeevan Ram Memorial
Hospital, Jahangir Puri of the Govt. of NCT of Delhi, which certified
(Ex. PW3/1), he to have been rendered a permanently physical
disabled person, the physical impairment being 40% in relation to the
said parts of the body. The tribunal has taken the functional disability
at 40%.
6. It is noted that the claimant had pleaded before the tribunal that
he was in a private service, earning Rs.5,500/- p.m. No evidence
worth the name in support of such claim was adduced. In these
circumstances, the tribunal was constrained to go by the minimum
wages of an unskilled worker (Rs.3,719/-).
7. In terms of the prescription against entry no.39 in the second
part of first schedule appended to Employees' Compensation Act,
1923, the loss of the great toe of one foot is to be treated as loss of
earning capacity to the extent of 14%. Taking note of the other factors
particularly the loss of soft skin of the areas around the foot in
question, the functional disability undoubtedly has been over assessed
by the tribunal. It is therefore treated as functional disability to the
extent of 20%. The loss of future income on such account thus will
have to be re-calculated.
8. The computation of income also requires suitable correction in
that the element of future prospects will have to be restricted in the
case at hand to 40%, given 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.
9. Thus, the loss of future income is re-calculated as [Rs.3,719/- x
140/100 x 20/100 x 12 x 18] Rs.2,24,925.12, rounded off to
Rs.2,24,925/-. Since the tribunal calculated the amount under this
head at Rs.4,81,982/-, it needs to be reduced by [Rs.4,81,982/- (-)
Rs.2,24,925/-] Rs.2,57,057/-.
10. It is noted that the treatment had continued for a prolonged
period. In this view, the attendant charges in the amount of
Rs.30,000/- are added.
11. The deficiency in the award on account of absence of provision
for future medical treatment also needs to be taken care of. It is noted
that Deepak Bhardwaj (PW-4) had been examined to prove the advice
for surgical procedure wherein attempt would be made for
reconstruction of the left heel pad, this requiring an estimated
expenditure of Rs.25,350/-. The said orthopedic surgeon had deposed
before the tribunal on 12.10.2007. Having regard to the time gap, an
amount of Rs.50,000/- towards future medical treatment is added.
12. The awards under the other heads of damages are found to be
just and adequate.
13. Thus, the compensation would need to be reduced by
[Rs.2,57,057/- (-) Rs.30,000/- (-) Rs.50,000/-] Rs.1,77,057/-.
14. The total compensation in the case is, therefore, reduced to
[Rs.7,29,181/- (-) Rs.1,77,057/-] Rs.5,52,124/-, rounded off to
Rs.5,53,000/- (Rupees Five lakh and fifty three thousand only).
15. 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% 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.]
16. By order dated 07.11.2012 on MACA 1170/2012, the insurance
company had been directed to deposit 75% of the awarded amount
with up-to-date interest with UCO Bank, Delhi High Court Branch
and from out of such deposit, fifty percent (50%) was allowed to be
released to the claimant. The Registry shall calculate the balance of
the amount payable to the claimant in terms of the modification
ordered above and release the same from the remainder held back in
deposit refunding the excess, if any, to the insurer. If there is any
deficiency in the deposit, the insurer will be obliged to deposit the
same with the tribunal within 30 days making it available to be
released to the claimant.
17. The statutory amount paid by the insurer shall be refunded after
proof is shown of the award having been satisfied.
18. Both appeals and the pending application stand disposed of in
above terms.
R.K.GAUBA, J.
DECEMBER 06, 2017
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