Delhi High Court
The New India Assurance Co.Ltd. vs Suraj Prakash & Ors on 19 July, 2017
$~27 & 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th July, 2017
+ MAC.APP. 291/2008
THE NEW INDIA ASSURANCE CO.LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
SURAJ PRAKASH & ORS ..... Respondents
Through: Mr. Swastik Singh, Adv. for R-
1.
+ MAC.APP. 845/2013
SURAJ PRAKASH & ORS ..... Appellants
Through: Mr. Swastik Singh, Adv.
Versus
THE NEW INDIA ASSURANCE CO LTD ..... Respondent
Through: Mr. Pankaj Seth, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Suraj Prakash, the first respondent in MAC Appeal No.
291/2008, suffered injuries in a motor vehicular accident that occurred
on 31.12.1999 on account of rash driving of Toyota car bearing
registration no. DL 2CG 6655, which was statedly insured against
third party risk with New India Assurance Co. Ltd. (appellant in MAC
Appeal no. 291/2008). He instituted an accident claim case (suit no.
1107/2007) on 20.05.2000 seeking compensation impleading, amongst
others, the insurer of the offending vehicle.
2. The tribunal, after inquiry, by judgment dated 18.02.2008
accepted the case of compensation on the principle of fault liability.
The tribunal found that the claimant had suffered injuries including
fracture of the thigh bone of the left lower limb, proof having been
adduced of prolonged treatment involving seven surgical procedures
as also of the injuries having rendered, the claimant permanently
disabled, the disability having been found, as per the medical opinion,
to be to the extent of 41%. The tribunal awarded compensation in the
total sum of Rs. 7,22,348/- and directed the same to be paid with
interest to the claimants fastening the liability on the insurer.
3. By the appeal at hand, the insurer questions the said award on
the ground that there was negligence on the part of the claimant
himself and that the calculation of loss of future income on account of
disability on the assumed income based on minimum wages with the
factor of future prospects of increase was incorrect. Per contra, by
way of cross-appeal the claimant has submitted that multiplier of 13
applied by the tribunal was wrong inasmuch as his age on the relevant
date was 44 years which merited such calculation to be made with the
multiplier of 14. The claimant also submitted that his treatment had
continued and that he had incurred some further medical expenses
which also deserve to be added to the compensation. For this, with the
permission taken, he has led additional evidence during the pendency
of these appeals by examining Laiazley Roburt (RW1) and Jai Prakash
Narayan Singh (RW2) both officials of St. Stephen's Hospital, besides
himself appearing as RW-3.
4. Having heard the learned counsel for the insurer and the counsel
for the claimant, this Court is of the opinion that there is no case made
out for the finding on the issue of negligence to be disturbed. The
evidence of the claimant on oath has virtually gone unimpeached.
The sequence of events narrated by him brings out that the accident
had occurred due to the negligence of car driver, the latter not entering
the witness box with any counter version.
5. The tribunal, it appears, was a little confused as to the age of the
claimant. Having noted in the opening para of the impugned judgment
his age to be 39 years, in paras 17 and 18, the age was referred as 47
years and 48 years respectively. Copy of the ration card is available at
page 1547 of the tribunal's record which indicates his age as on
27.03.1991 to be 36 years. By this reckoning, the age on relevant date
would be 44 years and, therefore, the claim for multiplier of 14 to be
applied is correct.
6. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia,
ruled that the element of future prospects of increase in income will
not be granted in cases where the deceased was "self employed" or
was working on a "fixed salary". Though this view was affirmed by a
bench of three Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan
Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views,
as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9
SCC 54, the issue was later referred to a larger bench, inter-alia, by
order dated 02.07.2014 in National Insurance Company Ltd. vs.
Pushpa & Ors., (2015) 9 SCC 166.
7. Against the above backdrop, by judgment dated 22.01.2016
passed in MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.),
this Court has found it proper to follow the view taken earlier by a
learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo
General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on
12.1.2015, presently taking the decision in Reshma Kumari (Supra) as
the binding precedent, till such time the law on the subject of future
prospects for those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger bench of the
Supreme Court.
8. There is no formal proof of the engagement of the claimant in
regular employment, leave alone any such employment where there
would be progressive rise in income. The tribunal, therefore, went by
minimum wages of Rs. 2800/-. The element of future prospects of
increase which has been added, however, will have to be kept out.
Thus,on the disability of 41%, the loss of future income is recomputed
as (2800 x 41 ÷ 100 x 12 x 14) Rs. 1,92,864/-. The award of Rs.
2,27,935/- under this head has to be reduced by (2,27,935- 1,92,864)
Rs. 35,071/-.
9. The additional evidence adduced during the pendency of these
appeals has shown additional expenditure towards medical treatment
in the sum of Rs. 1,07,116/- which must be added.
10. Therefore, there is a case made out for addition of (1,07,116 -
35,071) Rs. 72,045/-. Needless to add, it shall carry interest as levied
by the tribunal. The award is modified accordingly.
11. By order dated 06.05.2008 in MAC Appeal no. 291/2008, the
insurance company had been directed to deposit 75% of the awarded
amount with interest with the Registrar General and from out of such
deposit 50% was allowed to be released. The balance lying in deposit
shall also now be released. The insurance company will be obliged to
pay the balance in terms of the modified award, as ordered above, with
the tribunal by requisite deposit within 30 days of today, making it
available to be released to the claimant.
12. Both appeals stand disposed of in above terms.
13. Statutory deposit made by the insurance company shall be
refunded.
R.K.GAUBA, J.
JULY 19, 2017
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