Delhi High Court
National Insurance Co. Ltd. vs Anil Kumar @ Tinku & Ors on 25 July, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th July, 2017
+ MAC.APP. 70/2015 & CM APPL. 13655/2015
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Manoj R. Sinha, Adv.
versus
ANIL KUMAR @ TINKU & ORS ..... Respondents
Through: Mr. Rajnish K. Jha, Adv. for
claimant/R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent, then aged 19 years, claiming to be earning
his livelihood as a wrestling coach, suffered injuries in a motor
vehicular accident that occurred on 10.02.2011, statedly due to
negligent driving of Indica car bearing registration no. UP 16X 4699
which was admittedly insured against third party risk with the
appellant insurance company (insurer). The injuries included fracture
in the right femur shaft and left tibial bones also affecting the left knee
joint. The tribunal, on the basis of inquiry into the claim petition (case
no. 441/14/11), taken out, in the wake of detailed accident report
(DAR) submitted by the police, and considering the evidence
including MLC (Ex.PW-1/H) and disability certificate (Ex.PW-2/A),
concluded that his functional disability is to the extent of 35% and
awarded compensation taking into account the loss of future income
and other heads of compensation (pecuniary and non-pecuniary),
awarding eventually total compensation in the sum of Rs. 17,40,863/-
with interest @ 9% per annum. The loss of future income which is the
main component was in the sum of Rs. 14,74,200/-. The tribunal
assessed the income of the claimant at Rs. 7,000/- per month and
added the element of future prospects of increase to the extent of 50%.
2. The insurance company which admits the liability to indemnify
the insurer and pay to the claimant, points out two errors. The first
concerns the loss of future income which has been calculated on basis
of disability to the extent of 65%, this against the conclusion reached
earlier in the judgment assessing the functional disability to the extent
of 35%. The second contention raises concerns the addition of
element of future prospects.
3. 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.
4. 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.
5. The learned counsel for the claimant did not have any answer
to the contentions of the insurance company. Indeed, the element of
future prospects cannot be added since there is no proof of regular
employment or income, leave alone proof of progressive rise in
income. The error in calculation on the basis of functional disability is
clear, in view of observations in para 29 and 30. Suitable correction,
therefore, must be made.
6. Thus, the loss of future income is re-calculated as (7000 x 35 ÷
100 x 12 x 18) Rs. 5,29,200/-. This would mean the award has to be
reduced by Rs. 9,45,000/-. The award is, thus, reduced to (17,40,863-
9,45,000) Rs. 7,95,863/-,rounded off to Rs. 7,96,000/-. Needless to
add, it shall carry interest as levied by the tribunal. The award is
modified accordingly.
7. By order dated 20.01.2015, the insurance company had been
directed to deposit 40% of the awarded amount which was allowed to
be released to the claimant. The insurance company shall now pay the
balance in terms of the modified award by requisite deposit with the
tribunal within 30 days.
8. For any premature release of the amount put in fixed deposits,
the claimant is at liberty to approach the tribunal with appropriate
application.
9. The appeal and applications are disposed of.
10. The statutory amount shall be refunded.
11. Dasti to both parties.
R.K.GAUBA, J.
JULY 25, 2017
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