Delhi High Court
Reliance General Insurance Co Ltd vs Sunil Subba Yadav & Ors on 13 July, 2017
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 13th July, 2017
+ MAC.APP. 907/2016 and CMA PPL.40094/2016 (stay)
RELIANCE GENERAL INSURANCE CO LTD..... Appellant
Through: Mr. A.K.Soni, Advocate
versus
SUNIL SUBBA YADAV & ORS ..... Respondents
Through: Mr.Ajay Kumar, Advocate 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 16.05.2013 statedly due to negligent driving
of motor vehicle described as HR-50B-4848 (hereinafter referred to as
the offending vehicle), and has been rendered permanently disabled.
He filed accident claim case (MACP No.442/2013) on 08.01.2014
before the Motor Accident Claims Tribunal (the tribunal) in the wake
of detailed accident report (DAR) submitted by the police pursuant to
the registration of First Information Report (FIR) No.83/2013 of
Police Station Parliament Street, under Section 279/338 of the Indian
Penal Code, 1908 (IPC).
2. In the claim proceedings, the appellant insurance company was
impleaded as the second respondent it having concededly issued an
insurance policy against third party risk in respect of the offending
vehicle at the instance of the second respondent, who is described as
owner of the said vehicle.
3. The tribunal upheld the case of the claimant about accident
having been caused and injuries having been sustained due to
negligent driving of the offending vehicle. The said findings have not
been challenged and have attained finality.
4. The tribunal concluded that the claimant had suffered functional
disability to the extent of 90%. It found that the income of the
claimant at the relevant point of time was Rs.14,000/- per month and,
on that basis, calculated loss of income in the sum of Rs.24,19,200/-
and after adding other components under the various heads of
expenses of medical treatment, and non-pecuniary damages, etc, the
total compensation in the sum of Rs.51,40,927/- was awarded with
interest, liability in such regard having been fastened against the
insurance company.
5. The appeal of the insurance company is pressed on three
grounds. It is argued that the decision on functional disability to the
extent of 90% was uncalled for. Reference in this context is made to
the evidence of Dr. Vijay Kumar Jain (PW-2) who had conceded that
the claimant was in a position to walk around with support and can
also engage in some sitting job, the assessment of permanent physical
impairment to the extent of 90% being in relation to bilateral lower
limb. It is pointed out that the disability has not been assessed by the
medical board with reference to the whole body or in the nature of
functional disability. It is further the contention of the insurer that
claimant's own witness (PW-3), the proprietor of Rhytham Restaurant
with which the claimant claimed to have been employed at the
relevant point of time itself showed the salary earned was Rs.9,000/-
and, yet, the tribunal junked the said evidence and accepted the claim
about the salary being not less than Rs.14,000/-, this on the basis of
submissions made with reference to copy of the appointment letter of
(what is described as) previous employer of the claimant, no formal
evidence about such previous employment having been adduced. The
insurer also questions the computation of damages under the other
heads and stating that they are unduly high on the wrong assumption
of functional disability being 90%.
6. The contention with regard to extent of functional disability
needs further inquiry. It is seen from the tribunal's record that the
claimant had been referred to Dr. Ram Manohar Lohia Hospital, New
Delhi for medical opinion as to the disability and its extent. Report
pursuant to the said direction came on record as Ex.PW-2/1. It simply
describes the person examined as one Sunil, male 35 years. The
Government hospitals issue such disability certificate in a detailed
format where care is taken to describe the person examined fully
including by addition of his photograph. No such precaution has been
taken. The disability certificate does not even indicate the parentage
or address of the person examined. This, in addition to the evidence of
PW-2 as referred to above, impels one to conclude that there is a case
for fresh assessment and evaluation of the disability and its extent.
Ideally, this should be undertaken from a hospital other than the one
where the claimant was earlier referred.
7. On being asked, the counsel for the claimant fairly conceded
that formal evidence with regard to previous employment also should
have been adduced if that were to be the basis for the calculation of
income. The counsel submitted that the appeal may be allowed and the
matter remitted to the tribunal so that not only the extent of disability
may be re-evaluated but he may also get another opportunity to
adduce proper evidence as to his employment and earnings.
8. In above facts and circumstances, the appeal is allowed. The
impugned award is set aside to the extent it calculated the
compensation that is to be awarded. The tribunal shall take necessary
steps to have the claimant re-examined by a board of doctors of a
Government hospital other than the one where the claimant was earlier
examined and secure a proper certificate, and also take formal
evidence in such respect so as to reach appropriate findings on the
question of functional disability. For such purposes, and also for
purposes referred to above, the claimant shall be called up to lead
additional evidence followed by opportunity to the opposite party to
lead evidence in rebuttal, if any.
9. The parties shall appear before the tribunal for further
proceedings in accordance with law on 17th August, 2017.
10. Needless to add, given the nature of medical condition claimed,
the tribunal shall render its fresh decision expeditiously.
11. In terms of order dated 26.10.2016, the insurance company had
been directed to deposit Rs.30 lacs with upto date interest with UCO
Bank, Delhi High Court Branch and to keep the same in fixed deposit.
By order dated 25.05.2017, forty percent (40%) out of the said
deposited amount was allowed to be released. The amount already
released shall be suitably adjusted in the award to be passed afresh by
the tribunal. The balance, lying in fixed deposit with statutory amount,
shall be presently refunded to the appellant insurance company.
12. The appeal is disposed of in above terms.
R.K.GAUBA, J.
JULY 13, 2017
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