Delhi High Court
M/S The United India Insurance ... vs Hem Raj @ Rahul & Ors. on 11 December, 2017
$~R-683
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th December, 2017
+ MAC. APP. 1259/2012 & CM No.20748/2012
M/S THE UNITED INDIA INSURANCE COMPANY
LIMITED ..... Appellant
Through: Mr. D.D. Singh, Advocate with
Mr. Navdeep Singh, Advocate
versus
HEM RAJ @ RAHUL & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The accident claim case (MACT No.951/10), instituted on
07.07.2010, by the first respondent (the claimant) resulted in judgment
dated 01.09.2012 being passed by the motor accident claims tribunal,
awarding compensation in the total sum of Rs.15,60,302/- in his
favour with interest @ 9% per annum, fastening the liability on the
appellant (insurer) to pay, it concededly being the insurer against third
party risk in respect of the truck bearing registration No.DL-1GB-
4247 the negligent driving of which has given rise to the cause of
action.
2. The compensation was calculated thus:-
Sl.No. Heads Amount (in Rs.)
1. Medical expenses 18,092/-
2. Loss of future income etc. 12,32,010/-
3. Special diet 20,000/-
4. Conveyance Expenses 20,000/-
5. Loss of income for 12 months 70,200/-
6. Pain and sufferings & trauma 1,00,000/-
7. Loss of amenities & enjoyment of life 1,00,000/-
Total 15,60,302/-
3. The insurer by the appeal at hand has questioned the calculation
of loss of income in future due to functional disability assessed at
65%, primarily on the ground that there was no basis on which the
notional income could be arrived at since the claimant was hardly 13
years old at the relevant point of time and that the functional disability
has been taken the same as the permanent disability evaluated by the
medical board (Ex.PW-1/3) of the board of doctors of Dr. Baba Saheb
Ambedkar Hospital, Govt. of NCT of Delhi, which it is argued, has
resulted in excess award being granted. The insurer also submits that it
should have been exonerated, since truck was used for carrying gas
cylinders, a hazardous substance and for such purposes the driver did
not have the requisite endorsement on his licence in terms of Rule 9 of
Central Motor Vehicles Rules, 1989.
4. During the course of hearing, it was pointed out to the counsel
for the insurer that the calculation of loss of income in future due to
functional disability is indeed erroneous but, the error is against the
claimant having resulted in inadequate award being granted and that
re-consideration of the award would result in enhancement of the
compensation. The matter was passed over so that the counsel for the
insurer could seek appropriate instructions. When it is taken up for
hearing, the counsel insists that the contentions urged in the appeal
may be examined and that the compensation deserves to be reduced.
5. Reliance on decision of this Court in MAC.APP.554/2010,
Chetan Malhotra v. Lala Ram, decided on 13.05.2016 is not correct.
The said case relates to compensation in case of death of a child. In
the present case, the claim is on account of injuries resulting in
permanent disability. It is noted from the evidence that the left upper
limb below elbow of the claimant was amputated. The board of
doctors evaluated his permanent disability to be 65% in relation of that
part of the body (Ex.PW-1/3). The third entry of second part of the
first schedule of the Employees' Compensation Act, 1923 squarely
covers the case at hand. The functional disability should have been
taken as 70%, instead of being reduced to half of 65% as is sought.
6. While it may be correct that on the date the accident occurred
the claimant was not an earning hand. But then, what he faced is
functional disability affecting his capacity to earn his livelihood in
future after attaining adulthood. In that view of the matter, the proper
course would have been to assess the income notionally at the age
when he would turn eighteen (18). Therefore, the calculation for loss
of income in future due to functional disability should have been made
with the notional income of Rs.9048/- per month. Further, 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., the element of future prospects of increase
in income to the extent of 40% would deserve to be added. The loss
of future income due to disability is recomputed as (9048/- x 140/100
x 70/100 x 12 x 18) Rs.19,15,280.64 rounded off to Rs.19,15,281/-.
Thus, award under this head needs to be increased by (19,15,281 (-)
12,32,010) Rs.6,83,271/-.
7. The award under the other heads of damages granted by the
tribunal being just and adequate, the just compensation to be awarded
to the first respondent is worked out as (15,60,302/- + 6,83,271/-)
Rs.22,43,573/- rounded off to Rs.22,44,000/- (Rupees Twenty Two
Lakhs Forty Four Thousand Only). The award is modified
accordingly. It shall carry interest as levied by the tribunal.
8. The insurance company made no efforts during the inquiry to
call upon the driver or the owner of the offending vehicle to bring on
record the endorsement in terms of Rule 9 of Central Motor Vehicles
Rules, 1989. In these circumstances, the plea for exoneration cannot
be allowed.
9. By order dated 14.12.2012, the insurance company was called
upon to deposit 50% of the award with upto date proportionate interest
with the tribunal which was permitted to be released to the claimant.
The insurance company will be obliged to deposit balance of its
liability under the modified award with the tribunal within thirty days.
The entire enhanced portion of the award along with accrued interest
would be released to the claimant in the form of interest bearing fixed
deposit receipts to be taken out from a nationalized bank for a period
of ten years with right to draw periodic interest.
10. The statutory amount deposited by the insurance company
stands forfeited as costs in favour of Delhi High Court Legal Services
Committee.
11. The appeal along with pending application stand disposed of in
above terms.
R.K.GAUBA, J.
DECEMBER 11, 2017
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