Delhi High Court
The Oriental Insurance Co Ltd vs Rakesh Kumar & Ors on 12 July, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th July, 2017
+ MAC.APP. 353/2016
THE ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. A.K. Soni, Adv.
Versus
RAKESH KUMAR & ORS ..... Respondents
Through: Mr. H.R. Jha, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent suffered injuries in a motor vehicular
accident that occurred on 30.05.2012 due to negligent driving of car
bearing registration no. DL 4CAB 7057, which admittedly was
insured against third party risk with the appellant insurance company.
On the claim petition (petition no. 175/2012), the tribunal held inquiry
and by judgment dated 18.01.2016, awarded compensation in the sum
of Rs. 19,74,200/- with interest @ 9% per annum calling upon the
insurance company to pay. The insurer is in appeal questioning the
computation on the ground that the tribunal wrongly assumed the
functional disability suffered to be 100% as against the medical
opinion assessing the disability to the extent of 31%.
2. A perusal of the evidence shows that by certificate dated
26.08.2014 (Ex.PW-3/A), a board of doctors of Madan Mohan
Malviya Hospital of the Govt. of NCT of Delhi, the condition of the
claimant has been assessed to have been rendered handicapped, his
physical disability being permanent to the extent of 31% in relation to
his spine and limbs, such condition being non-progressive and not
likely to improve.
3. The claimant has appeared in person with the counsel. He is
walking with the support of wooden stick and is holding his neck in
correct position with the support of a collar. It is stated that because
of the injury to the spine he is unable to move his neck in either
direction. Noticeably, the injuries have been assessed to have led to
permanent disability to the above extent in relation to specific parts of
the body and not in relation to the entire body. The evidence indicates
the claimant was gainfully engaged as a driver of three wheeler
scooter (TSR). Obviously, because of his present condition he would
not be able to earn his livelihood as a TSR driver because the
restriction in the movement of his neck would come in the way. But
then, it cannot be said that he is rendered paraplegic wholly dependent
for life, to the extent of being 100% disabled. He will have to equip
himself with necessary skills to restore himself to a productive human
being. The tribunal, it appears, was overzealous in its approach and
assessed the functional disability to the extent of 100%, which cannot
be upheld. In the assessment of this Court, the functional disability on
which compensation will have to be awarded for loss of future income
should be to the extent of 60%.
4. There is no formal proof of any regular income. Therefore, the
tribunal correctly adopted the minimum wages of a skilled worker
prevalent at the time at Rs. 8,528/- as the wages at that point of time
and applied the multiplier of 16. The compensation for loss of future
earnings is, thus, recomputed as (8,528 x 60 ÷ 100 x 12 x 16) Rs.
9,82,425 rounded off to Rs. 10 lakhs.
5. It is noted that the Tribunal awarded Rs. 1 lakh each under the
heads of pain & suffering and loss of amenities and Rs. 50,000/- under
the head of loss of life expectancy. Given the condition to which the
claimant has been reduced for the entire remainder of his life, non-
pecuniary damages are inadequate. He is awarded Rs.1,50,000/-
under each of these three heads.
6. Adding the other components granted by the tribunal, including
on account of medical expenses; special diet, conveyance & attendant
charges, the total compensation comes to (56,800 + 1,50,000 + 30,000
+ 10,00,000 + 1,50,000 + 1,50,000) Rs. 15,36,800/-, rounded off to
Rs. 15,37,000/. The award is modified accordingly. Needless to add it
shall carry interest as levied by the Tribunal.
7. The insurance company had been directed by order dated
27.04.2016 to deposit the entire awarded amount with upto date
interest with the tribunal and from out of such amount, thirty per cent
(30%) was allowed to be released and balance kept in fixed deposit
receipt. The Tribunal shall now release the balance in terms of the
modified award refunding the excess, if any, to the insurance
company.
8. The statutory amount shall be refunded.
9. The appeal is disposed of.
R.K.GAUBA, J.
JULY 12, 2017/nk
