Delhi High Court
National Insurance Co Ltd vs Ajay Kumar & Ors on 19 July, 2017
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th July, 2017
+ MAC.APP. 42/2017 and CM No.1468-1469/2017
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. S.P. Jain and Mr. Himanshu
Gambhir, Advocates
versus
AJAY KUMAR & ORS ..... Respondents
Through: Mr. Manish Singhal, Adv.for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent was travelling in a truck bearing no.DL-
1LG-4321, the second respondent being its driver, on 03.09.2008
when in the area of Village Khanpur Koliya, it ended up colliding
against a truck stationary on the roadside in breakdown condition, the
said other vehicle being HR-37A-8295. As a result of the collision, he
suffered injuries which rendered him permanently disabled. The truck
driven by the second respondent was statedly insured against third
party risk with the appellant / insurance company (insurer) for the
period in question.
2. The first respondent (hereafter claimant) instituted accident
claim proceedings (suit no.4677/2016) on 19.08.2011 seeking
compensation.
3. The Tribunal returned finding that the case for compensation on
the principle of fault-liability was made out and awarded
compensation in the sum of Rs.9,38,000/-. Noticeably, the said award
includes Rs.6,30,000/- on account of loss of future earnings due to
permanent disability.
4. It is the abovesaid component and the issue of negligence which
are the bone of contention raised by the insurance company in the
present appeal, it having been burdened with the liability to pay the
awarded compensation with interest at the rate of 9% p.a.
5. The learned counsel for the insurer and the claimant have been
heard and the tribunal's record has been perused.
6. While it may be correct that there was no first information
report registered by the local police, the fact remains that the collision
was duly noted vide daily diary (DD) no.19 of police station Aman
Vihar. It may be that in the said DD entry, the police had taken it to
be a case of accident that had occurred per chance (ittefaqia). But, the
claimant relied on his own evidence appearing as PW-1. In the said
evidence, he narrated the sequence of events. It is stated that a stray
animal had come in the way of the truck and, in order to save it, the
second respondent had turned the vehicle and in the process, lost
control and the said vehicle ended up colliding the stationary vehicle
on the roadside.
7. The principle of re ipsa loquitur squarely applies. The vehicle
was moving on the road and having regard to the conditions of roads
in India, the possibility of stray animals coming into the path of the
motor vehicles had to be kept in mind by the driver. The fact that he
tried to save an animal may be well justified. But then, such effort
could and should not have ended up in he (the driver) losing control.
The fact that he lost control and the vehicle in question collided
against a stationary vehicle demonstrates the rash driving giving rise
to the cause of action.
8. The injuries suffered by the claimant were in the lower limbs.
The evidence led has proved that there were fractures of both bones of
the left lower limb. This has resulted in physical disability which was
assessed by the board of doctors of Sanjay Gandhi Memorial Hospital,
Mangol Puri (vide Ex. PW12/2) to be to the extent of 74% and
permanent in nature with no likelihood of improvement. Having
regard to the fact that the claimant was earning his livelihood as a
driver, loss of effective use of the left lower limb to such an extent
indeed should result in the assessment as made by the tribunal, the
effect being that the claimant now suffers from 74% functional
disability. The conclusions reached by the tribunal in this regard,
therefore, do not call for interference.
9. The tribunal, however, fell in error by accepting the claim that
the claimant was earning Rs.5,000/- p.m. It picked up such wages on
the assumption that they were less than minimum wages for unskilled
worker. On the date of the accident, the minimum wages for a skilled
worker were in the sum of Rs.4,107/-. In absence of any cogent
evidence about gainful employment at the wages stated by the
claimant, the computation should have been made on the basis of
minimum wages at Rs.4,107/- p.m.
10. The tribunal accepted the evidence about the claimant being 45
years old on the relevant date and, thus correctly applied the multiplier
of 14. The calculation is made afresh. The loss of future earnings is
computed as (Rs.4,107/- x 75 / 100 x 12 x 14) Rs.5,17,482/-. Adding
the other components of damages awarded by the tribunal, the total
compensation comes to (Rs.5,17,482/- + Rs.12,573/- + Rs.25,000/- +
Rs.20,000/- + Rs.1,50,000/- + Rs.1,00,000/-) Rs.8,25,055/-, rounded
off to Rs.8,26,000/-.
11. The award is modified accordingly. Needless to add, it shall
carry interest as levied by the tribunal.
12. In terms of order dated 13.01.2017, the insurance company has
deposited the awarded amount with interest with the tribunal. The
tribunal shall release the amount due to the claimants in terms of
modification ordered above refunding the excess to the insurance
company.
13. It is made clear that this modification does not affect the
recovery rights granted to the insurance company by the impugned
judgment.
14. The statutory amount shall be refunded.
15. The appeal and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
JULY 19, 2017/yg
