Delhi High Court
M/S United India Insurance ... vs Gul Mohd. @ Gullu & Ors. on 12 December, 2017
$~R-701
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th December, 2017
+ MAC. APP. 1301/2012
M/S UNITED INDIA INSURANCE COMPANY LIMITED
..... Appellant
Through: Mr. Shoumik Mazumdar, Advocate
versus
GUL MOHD. @ GULLU & ORS. ..... Respondents
Through: Ms. Palak Rohmetra, Advocate for
R-3/DTC.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The accident claim case (Suit No.152/11), was instituted on
08.07.2011, by the first respondent (claimant), seeking compensation
for the injuries suffered by him in a motor vehicular accident that had
occurred on 26.03.2011, due to negligent driving of motor vehicle
described as bus, bearing registration No.DL-1PB-6654, of Delhi
Transport Corporation (DTC), admittedly insured against third party
risk for the period in question with the appellant (insurer). By
judgment dated 27.08.2012, the tribunal accepted the said claim,
returned a finding that the claimant had been rendered permanently
disabled, his functional disability having been taken as 50% and
granted award accordingly in the total sum of Rs.30,61,600/-,
fastening the liability to pay on the insurer with interest @ 9% per
annum on Rs.12,41,600/-, calculating it thus:-
Sl.No. Heads Amount (in Rs.)
1. Medicines expenses 10,000/-
2. Artificial limb 18,20,000/-
3. Pain and suffering 75,000/-
4. Special diet, conveyance & attendant 57,000/-
charges
5. Loss of income 67,000/-
6. Loss of future income 9,82,600/-
7. Loss of amenities 50,000/-
Total 30,61,600/-
2. The appeal at hand was filed by the insurer to submit that the
award granted is excessive.
3. The appeal was put in the list of 'Regulars' to come up on its
own turn as per order dated 03.02.2016. When it is called out for
hearing, there is no appearance on behalf of the claimant. The learned
counsel for the insurer and DTC have been heard. Record perused.
4. The disability on which account loss of future income is sought
to be compensated arises from amputation of the right lower limb
below knee, the board of doctors of Pandit Madan Mohan Malaviya
Hospital (Ex.PW-1/7) having assessed it to be 60% physical
impairment in relation to the said right lower limb. The tribunal noted
that the claimant was earning his livelihood as an electrician. It
assessed the functional disability as 50%. Grievance in the appeal is
that no member of the board of doctors was examined.
5. In the given facts and circumstances, the evidence of any
member of the board was not necessary, there being ample evidence to
substantiate the plea of the claimant about the partial loss of the right
lower limb. The argument of the insurer even otherwise cannot be
accepted as the condition as described above should have resulted in
evaluation of the functional disability to the extent of 60% [See: MAC
APP.563/2009, titled Oriental Insurance Company Limited vs. Smt.
Sushila & Ors., decided on 23.08.2017].
6. On perusal of the record, this court finds that the tribunal also
fell into error by adding the element of future prospects of increase in
income to the income by 30% only. Given the fact that the claimant
was a self-employed person, his income having been notionally
assessed with minimum wages, given his age of 30 years, such
element should have been to the extent of 40% [See: National
Insurance Company Ltd. vs. Pranay Sethi and Ors., SLP (C)
25590/2014, decided on 31.10.2017 (Constitution Bench)].
7. Thus calculated, the loss of future income due to disability
would work out as (7410 x 140/100 x 60/100 x 12 x 17)
Rs.12,69,777.60 rounded off to Rs.12,70,000/-. This would mean that
the award, instead of being decreased, would require to be enhanced
by (12,70,000 (-) 9,82,600) Rs.2,87,400/-.
8. It is noted that the tribunal made provision for replacement of
the artificial limb three times. The submission of the insurer at the
hearing that only two replacements would have been sufficient, if
accepted, would result in reduction in the award by Rs.4,55,000/- the
net reduction being (4,55,000-2,87,400) Rs.1,67,600/-. But, it is
noted that the awards under the head of loss of amenities and pain and
suffering are grossly inadequate. If said non-pecuniary damages were
to be suitably enhanced, the total award of compensation granted by
the tribunal would need to be maintained.
9. In the above facts and circumstances, the appeal is dismissed.
10. By order dated 02.01.2013, the insurance company was directed
to deposit the entire awarded amount and by subsequent order dated
11.03.2013, fifty per cent (50%) thereof was permitted to be released
to the claimant. The balance lying in deposit shall also now be
released to the claimant in terms of the judgment of the tribunal.
11. The statutory amount shall stand forfeited as costs in favour of
Delhi High Court Legal Services Committee.
12. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
DECEMBER 12, 2017
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