Delhi High Court
Cholamandalam Ms General ... vs Ms Rahat Khanam & Ors on 31 July, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 31st July, 2017
+ MAC.APP. 463/2014 and CM No.13762/2017
CHOLAMANDALAM MS GENERAL
INSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Gupta for Ms. Suman
Bagga, Advocate
versus
MS RAHAT KHANAM & ORS ..... Respondents
Through: Mr. M.K. Sinha, Adv. for R-1
Ms. Mahamaya Chatterjee and Mr. R.A. Iyer
for Mr. Gautam Narayan, ASC for GNCTD
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent, then 22 years old, having studied upto 12th
standard, working for gain in a private employment, suffered injuries
in a motor vehicular accident that occurred on 13.11.2011 due to
negligent driving of a motor vehicle no.DL-1LM-9040 admittedly
insured against third party risk with the appellant insurance company.
On her accident claim case (petition no.244/13), the Motor Accident
Claims Tribunal (Tribunal) held inquiry and, by judgment dated
23.01.2014, found a case for compensation made out on the principle
of fault liability. It also returned a finding that the claimant had
suffered injuries which had rendered her prematurely disabled, her
disability having been concluded to be to the extent of 60%. The
Tribunal accepted her word that she was earning Rs.8,500/- p.m. from
the private service and on that basis calculated the loss of income (for
a period of treatment for 2 years) and also the future loss of income
due to disability and awarded total compensation in the sum of
Rs.26,38,400/- with interest at the rate of 9% p.a. fastening the
liability on the insurance company.
2. By the appeal at hand, the insurer questions the computation on
three grounds, they being the absence of formal proof of wages earned
from private service, the assessment of functional disability being
unfounded and the addition of factor of future prospects of increase in
calculating the loss of future income.
3. During the pendency of this appeal, directions were given for
re-evaluation of the disability of the first respondent. She accordingly
appeared before the board of doctors of Indian Spinal Injuries Centre
which has issued a certificate dated 02.06.2017 which has come on
record with the affidavit of one of the associate consultants
(Orthopaedics) submitted on 04.07.2017. As per the said evaluation,
the claimant is a case of Malunited interconylar fracture left femur
with stiff knee. She has been found to be physically disabled, her
physical impairment having been assessed to be to the extent of
40.5%.
4. The learned counsel for the insurer and the claimant now fairly
agree that the future loss of income will have to be made on the basis
of the above noted assessment of disability to the extent of 40.5%,
such assessment being in relation to the left lower limb. As per the
evidence, the claimant was working as a sales girl in a private
establishment. Having regard to the nature of job in which she has
been engaged, the functional disability is assessed at 30%.
5. The learned counsel for the claimant fairly concedes that there
was no formal proof of actual wages earned. In these circumstances,
bearing in mind the educational qualification, the minimum wages of
Rs.8112/- p.m. applicable in the case of a matriculate at the relevant
time is taken as the basis.
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. Since there was no formal proof of regular progressive rise in
income, the prospects of increase of income will have to be kept out.
9. Thus, the loss of income for two years is calculated as
(Rs.8,112/- x 24) Rs.1,94,688/- instead of Rs.2,04,000/-, thereby
requiring reduction of Rs.9,312/-.
10. The future loss of income due to functional disability is
assessed at (Rs.8,112/- x 30/100 x 12 x 18) Rs.Rs.5,25,657.60 rounded
off to Rs.5,26,000/- necessitating deduction by (Rs.16,52,400/- (-)
Rs.5,26,000/-) Rs.11,26,400/-.
11. It is, however, noted that the Tribunal has awarded composite
sum of Rs.2 Lakhs towards loss of marriage prospects, disfigurement
and loss of amenities. This seems inadequate. Keeping in view the
nature of the injuries and their effect, an amount of Rs.1 Lakh each
should have been awarded under these heads. This would mean net
addition of Rs.1 Lakh under the said heads.
12. Thus, the total compensation in the case is computed as
(Rs.26,38,400/- (-) Rs.9,312/- (-) Rs.11,26,400/- + Rs.1,00,000/-)
Rs.16,02,288/- rounded off to Rs.16,03,000/-.
13. The award is modified accordingly. Needless to add, it shall
carry interest as levied by the Tribunal.
14. By order dated 19.05.2014, the insurance company had been
directed to deposit the entire awarded amount with upto date interest
and out of such deposit 60% was allowed to be released. The Registry
shall calculate the balance payable to the claimant in terms of the
modified award and release the same refunding the excess with
statutory deposit to the insurance company.
15. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
JULY 31, 2017
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