Delhi High Court
New India Assurance Co Ltd vs Dharam Pal & Ors on 30 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: March 30, 2017
+ MAC.APP. 165/2015
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. P. Acharya, Advocate
versus
DHARAM PAL & ORS .....Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
Vide impugned Award of 2nd January, 2015, Motor Accident
Claims Tribunal (hereinafter referred to as the Tribunal) grants
compensation of `14,45,027/- with interest @ 9% per annum to
respondent-Claimant on account of injuries sustained by Dharam Pal in a
road accident on 13th October, 2011. The facts as noted in impugned
Award need no reproduction for the reason that the limited challenge in
this appeal is to impugned Award on the ground of quantum of
compensation. Suffice to note that apart from respondent-Injured, there is
evidence of Dr.Radha Raman (PW-2), who has proved the Disability
Certificate of respondent-Injured indicating permanent disability to be
80% in left lower limb. Pertinently, no evidence was led by appellant-
Insurer before the Tribunal. On the basis of evidence recorded, impugned
Award has been rendered by the Tribunal.
As per order of 26th August, 2016, service is complete. It is evident
from order of 28th February, 2017 that appellant's counsel had informed
the counsel for respondent-Injured/Claimant about the date of 'regular
hearing' in this appeal, but despite that none has appeared on behalf of
respondent on the last date of hearing. Even today, none appears on their
behalf.
With the assistance of learned counsel for appellant-Insurer,
impugned Award and the evidence on record have been perused. The
precise submission of appellant's counsel is that although the Tribunal
has rightly assessed income of respondent-Claimant on minimum wages,
but has erred in making addition of 30% towards 'future prospects'. To
submit so, reliance is placed upon Supreme Court's decision in Reshma
Kumari & Ors. v. Madan Mohan & Anr., (2013) 9 SCC 65.
It is next submitted by appellant's counsel that the functional
disability of respondent-Claimant ought to be taken as 40% whereas the
Tribunal has erred in taking it to be 80%. So, it is submitted by
appellant's counsel that the compensation awarded needs to be suitably
reduced. No other submission has been advanced on behalf of appellant-
Insurer.
Upon considering the submissions advanced by appellant's counsel
in light of evidence on record and the decision cited, I find that
respondent-Claimant was a fruit seller aged 45 years on the day of
accident and as per his evidence, he is unable to sell the fruits after this
accident. Infact, respondent-Claimant has gone to the extent of deposing
on oath that he is unemployed. It is relevant to note that there is no cross-
examination of respondent-Claimant on this vital aspect. So, it has to be
taken that the functional disability suffered by respondent-Claimant is
infact 100%. However, in view of evidence of Dr. Radha Raman (PW-2),
functional disability has to be taken as 80% as it has come in the evidence
of this witness (PW-2) that respondent-Claimant can sell fruits while
sitting, but certainly cannot sell fruits on Rehri and is unable to walk
without support. In the considered opinion of this Court, the functional
disability assessed by learned Tribunal at 80% does not call for any
interference in this appeal.
As regards, addition of 30% towards 'future prospects', I find that
in view of Supreme Court's decision in Reshma Kumari (supra) such
addition cannot be made as respondent-Claimant was not in permanent
stable employment. So, addition of 30% towards 'future prospects' is
disallowed and the 'loss of earning capacity' is re-assessed as under:-
`6,656 p.m. X 12 X 14 (Multiplier) X 80% (Functional Disability)
= `8,94,566/- (Rounded off to `8,94,570/-)
As such, compensation granted under the head of 'loss of earning
capacity' due to the disability suffered is reduced from `11,62,936/- to
`8,94,570/-. However, the compensation granted under the non-pecuniary
heads by the Tribunal is found to be on lower side. In view of Supreme
Court's decision in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343,
compensation under the head of 'pain and suffering' is enhanced from
`60,000/- to `1 lac. Likewise, compensation granted under the head of
'loss of amenities of life' is enhanced from `20,000/- to `1 lac. The
compensation granted under other various heads is found to be reasonable
and is hence maintained.
In the light of aforesaid, the re-assessed compensation payable to
respondent-Claimant is as under: -
1. Loss of earning capacity `8,94,570/-
2. Loss of Income for 3 `19,968/-
months
3. Pain and sufferings `1,00,000/-
4. Loss of amenities of life `1,00,000/-
5. Conveyance Charges `11,500/-
6. Special diet expenses `5,000/-
7. Medical bills `1,05,623/-
8. Attendant charges `20,000/-
9. Loss on account of `20,000/-
shortening of life span
10. Compensation for `20,000/-
disfigurement
Total `12,96,661/-
In view of Supreme Court's decision in Shivakumar M. v. The
Managing Director, BMTC, 2017 SCC OnLine SC 148, the rate of
interest awarded appears to be just and proper and hence, it is not
disturbed. Accordingly, the compensation of `14,45,027/- granted by the
Tribunal is reduced by `1,48,366/. As per order of 20th February, 2015,
75% of the awarded amount deposited by appellant was directed to be
released to respondent-Claimant. Learned counsel for appellant submits
that the aforesaid order has been complied with.
Consequentially, appellant is granted four weeks' time to deposit
the balance modified awarded amount alongwith interest @9% per
annum from the date of filing of the claim petition till the date of deposit
with the Tribunal. Upon deposit, modified compensation be released to
respondent-Claimant directly into his bank account upon bank account
details being furnished to the Tribunal.
Statutory deposit, if any, be refunded to appellant-Insurer as per
Rules.
With aforesaid directions, this appeal is disposed of while
modifying the impugned Award.
(SUNIL GAUR)
JUDGE
MARCH 30, 2017
s
