Delhi High Court
National Insurance Co Ltd vs Santosh & Ors on 20 January, 2017
$~R-18 & R-19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: January 20, 2016
(i) + MAC.APP. 551/2008
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. L. K. Tyagi, Advocate
versus
SANTOSH & ORS .....Respondents
Through: Mr. S.N. Parashar, Advocate for
respondent No.1-claimant
(ii) + MAC.APP. 98/2009
SANTOSH ..... Appellant
Through: Mr. S.N. Parashar, Advocate
versus
ASHWANI SHARMA & ORS. .....Respondents
Through: Mr. L. K. Tyagi, Advocate for
respondent No.2
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
Impugned Award grants compensation of `4,65,520/- with interest
to respondent-claimant in respect of grievous injuries suffered by one
Santosh in a road accident on 27th April, 2004. In the above-captioned
first appeal, reduction of compensation is sought whereas in the above-
captioned second appeal, enhancement of compensation is sought. Since
these two appeals arise out of common impugned Award of 27 th August,
2008, therefore, with the consent of learned counsel for the parties, these
appeals are heard together and are being disposed of by this common
judgment.
The factual matrix of this case already stands noted in the opening
paragraph of impugned Award and so, it needs no reproduction. Suffice
to note that as per Disability Certificate (Ex.P-2), the disability suffered
of lower limb is to the extent of 60% due to paraparesis. The injured, a
driver by profession, was aged 25 years at the time of accident and was
earning `3,320/- per month and by applying the multiplier of 17, 'loss of
earning capacity' is taken by learned Tribunal to be `4,03,920/-. Under
the other Heads, `39,600/- towards 'loss of income for a period of one
year, `15,000/- towards 'Medical Expenses' and `7,000/- towards 'Pain
and Suffering' has been granted by learned Tribunal. On the basis of the
evidence led by the parties, impugned Award has been passed. As per
order of 13th July, 2009, service is complete. Respondent No.2-owner
remains unrepresented.
In the above-captioned first appeal, the challenge to impugned
Award by learned counsel for appellant-Insurer is on the ground that
respondent-injured was an employee of respondent-owner and was liable
to be compensated under the Workmen's Compensation Act and so, as per
Section 167 of the Motor Vehicles Act, the liability to pay the
compensation awarded ought to be restricted to the extent as provided
under the Workmen's Compensation Act. To submit so, reliance is placed
upon Supreme Court's decision in National Insurance Co. Ltd. v.
Prembai Patel & Ors., II (2005) ACC 361.
In the above-captioned second appeal, learned counsel for
appellant-injured submits that the compensation awarded is on the lower
side and it needs to be suitably enhanced. To submit so, reliance is placed
upon Supreme Court's decision in K. Janardhan v. United India
Insurance Co. Ltd. and Another, 2008 ACJ 2039 wherein it has been held
that in a case of driver, 65% disability actually results in 100% disability.
Thus, enhancement of compensation is sought. Nothing else is urged by
either side.
Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that injured is covered under the
Workmen's Compensation Act and so, liability of insurer is restricted to
the compensation payable under the aforesaid enactment. Before
proceeding further, it is required to be considered as to whether the
functional disability would be 60% or 100%.
The Disability Certificate (Ex.P-2) categorically records that the
extent of disability suffered is 60% due to paraparesis of the lower limb.
In the cross-examination of injured, it has come that he cannot drive any
vehicle. Merely because the injured is a driver by profession and is not
able to drive any vehicle, would not mean that he cannot earn his
livelihood by doing any other work. So, functional disability cannot be
taken as 100%. The 'General Damages' assessed by learned Tribunal are
as per the formula prescribed under Section 163-A of the Motor Vehicles
Act as the petition was filed under Section 163-A of the Motor Vehicles
Act and therefore, the 'General Damages' are assessed on correct basis.
No case for enhancement of compensation awarded is made out.
In view of the aforesaid, the liability of insurer to pay the
compensation as per the Workmen's Compensation Act, 1923 would be
`4,29,481/-. In view of Supreme Court's decision in Prembai Patel
(supra), the liability to pay rest of the awarded amount would be of owner
of the vehicle in question, who has chosen not to contest this appeal. In
the final analysis, quantum of compensation as granted under the
impugned Award is maintained, but the liability of insurer to pay the
awarded amount is restricted to `4,29,481/- with interest. Liability to pay
the rest of the awarded amount i.e. `36,039/- would be of owner.
In pursuance of order of 11th February, 2009, appellant has
deposited the entire awarded amount, out of which except `3 lacs, rest of
the awarded amount has been already released to injured. In this view of
the matter, appellant is granted permission to recover the amount of
`36,039/- from owner of the vehicle in question alongwith the interest as
awarded by learned Tribunal, which is in consonance with the Supreme
Court's decision in Rajesh & Ors vs. Rajbir Singh & Ors., (2013) 9 SCC
54.
The statutory deposit, if any, made by appellant be refunded to
appellant as per Rules.
With the aforesaid modification, the above-captioned two appeals
are disposed of.
(SUNIL GAUR)
JUDGE
JANUARY 20, 2017
s
