Delhi High Court
Meer Khan vs Mahender Kumar Singh & Ors. on 1 November, 2017
$~R-381 & 410
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 1st November, 2017
+ MAC APPEAL No. 758/2011
MEER KHAN ..... Appellant
Through: Mr. N.K. Jha, Adv.
versus
MAHENDER KUMAR SINGH & ORS. .... Respondents
Through: Mr. Shoumik Mazumdar, Adv.
for insurance company.
+ MAC APPEAL No. 988/2011
SHRI RAM GENERAL INSURACE CO. LTD ..... Appellant
Through: Mr. Shoumik Mazumdar, Adv.
versus
MEER KHAN & ORS. .... Respondents
Through: Mr. N.K. Jha, Adv. for
claimant.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 30.08.2009, Meer Khan appellant in MAC appeal no.
758/2011 (the claimant) suffered injuries in a motor vehicular accident
that occurred due to negligent driving of trolla bearing registration no.
HR 38L 7176 (the offending vehicle) by Mahender Kumar Singh (a
respondent in these appeals). As a result of the injuries suffered, the
right arm of the claimant had to be amputated in the course of
treatment that followed rendering him permanently disabled. His
disability having been certified by a board of doctors of Pt. Madan
Mohan Malaviya Hospital to be 69% in relation to the right upper limb
(Ex. PW-1/1). On his accident claim case (suit no. 656/09), instituted
on 06.10.2009, the tribunal held inquiry and, by judgment dated
19.05.2011, found that the accident had occurred due to negligent
driving of the said driver, thereby holding the driver and Kishan, the
registered owner of the vehicle (another respondent in these appeals)
to be jointly and severally liable to pay compensation.
2. The claimant had also impleaded Shriram General Insurance
company Ltd., appellant in MAC Appeal No. 988/2011(insurer) as
party respondent to the claim proceedings. The tribunal held the
insurer liable to indemnify the owner and to pay the awarded
compensation in the sum of Rs.6,65,754/- with interest @ 7.5% per
annum from the date of filing of the petition, calculating the said
amount thus:-
S.No. Heads Compensation
1. Medical expenses Rs. 7,092/-
2. Special diet and travelling Rs. 50,000/-
expense
3. Loss of earning during Rs. 20,000/-
treatment
4. Loss of future earning Rs. 3,98,662/-
5. Other non-pecuniary damages Rs. 1,90,000/-`
Total Rs. 6,65,754/-
3. It may be mentioned here that the amount of Rs. 1,90,000/-
which has been included in the award was clarified by observations in
para 22 of the impugned judgment to include Rs. 50,000/- towards
pain & sufferings, Rs. 1,00,000/- on account of disfigurement and Rs.
40,000/- towards future medical expenses.
4. The claimant, by his appeal, submits that while calculating the
loss of future earning due to disability on the functional disability,
assessed at 69%, the tribunal should have added the element of future
prospects of increase in income. It is also the contention that since the
avocation of the claimant was that of a driver, the functional disability
should have been taken as 100%. The claimant further seeks enhanced
rate of interest @ 9% per annum.
5. Per contra, the insurer argues that the functional disability
could not have been taken same as the disability in relation to the right
upper limb on which opinion has been given by the medical authority.
The insurer also argues that there was no formal proof of the avocation
and, therefore, the award on the basis of wages payable to a skilled
worker ought not be upheld.
6. The evidence of the claimant appearing on his own behalf about
he earning his livelihood as a driver has remained unchallenged. In
these circumstances, the tribunal correctly assessed the functional
disability taking the said nature of avocation of the victim. In the view
of this court, the functional disability assessed by the tribunal is
appropriate, this in view of the dispensation in Employees'
Compensation Act, 1923.
7. There is, however need for correction in the calculation of loss
of future earnings since the element of future prospects was omitted.
Following the ruling of the Constitution Bench of the Supreme Court
rendered on 31.10.2017 in SLP (C) 25590/2014, National Insurance
Company Ltd. Vs. Pranay Sethi and Ors, future prospects to the extent
of 10% will have to be added, this keeping in view the facts that the
claimant was a self-employed person, his income having been
assessed notionally, his age on the relevant date being 54 years.
8. The loss of future earnings due to disability is re-calculated as
(4377 x 110/100 x 12 x 11 x 69/100) Rs.4,38,522.88 rounded to Rs.
4,38,523/-. Since the tribunal had awarded Rs. 3,98,662/- under this
head, the total award needs to be increased by (4,38,523-3,98,662) Rs.
39,861/-.
9. The award is increased to (6,65,754 + 39,861) Rs. 7,05,615/-,
rounded to Rs. 7,06,000/-( Rupees Seven lakhs Six Thousand only).
Following the consistent view taken by this Court, the rate of interest
is increased to 9% (nine percent) per annum from the date of filing of
the petition till realization. [see judgment dated 22.02.2016 in
MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta Devi &
Ors.]
10. By order dated 01.12.2011 in MAC Appeal No. 988/2011, the
insurance company had been directed to deposit the entire awarded
amount with upto date interest, such amount permitted to be released
to the claimant in the form of interest bearing fixed deposit receipts in
terms of the order of the tribunal. The insurer shall now satisfy the
enhanced award by requisite deposit with the tribunal within thirty
days, making it available to be released to the claimant.
11. Both appeals are disposed of in above terms.
12. The statutory amount deposited by the insurance company in its
appeal shall be refunded.
R.K.GAUBA, J.
NOVEMBER 01, 2017
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