Delhi High Court
Mahesh Kumar & Ors vs Icici Lombard General Insurance ... on 3 November, 2017
$~R-395 & 396
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 3rd November, 2017
+ MAC.APP. 843/2011
ICICI LOMBARD GENERAL INSURANCE CO. LTD.
..... Appellant
Through: Ms. Suman Bagga, Adv.
versus
MAHESH KUMAR & ORS ..... Respondents
Through: None.
+ MAC.APP. 255//2012
MAHESH KUMAR & ORS ..... Appellants
Through: None.
versus
ICICI LOMBARD GENERAL INSURANCE CO. LTD.
..... Respondents
Through: Ms. Suman Bagga, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Mahesh Kumar, the claimant, now appellant in MAC Appeal
255/2012, then aged 27 years, employed as an executive in Human
Resource Department of Amar Ujala Publications, suffered injuries in
motor vehicular accident that occurred on 18.03.2008 upon being hit
by Honda City Car bearing registration no. DL 7CF 4391, driven
negligently by respondents Suleman Khan (the driver), it being
registered in the name of Reliance Retail Ltd. (registered owner) and
admittedly insured against third party risk with ICICI Lombard
General Insurance Company (insurer), the appellant in MAC Appeal
No. 843/2011. He instituted accident claim case (280/08) on
21.04.2008 which was decided by the tribunal, by judgment dated
18.03.2011, the tribunal returning a finding on the basis of evidence
tendered, accepting the case of the appellant that injuries had been
sustained by him due to negligent driving of the car in question and,
thus, holding the owner and driver jointly and severally liable to pay
compensation. It computed compensation in the sum of Rs. 6,71,200/,
directing the insurer to pay the same with interest calculating it thus:-
S.No. Heads Compensation
1. Medical charges Rs. 15,000/-
2. Conveyance and special diet Rs. 10,000/-
3. Leave Rs. 25,000/-
4. Prospective Loss of Income Rs. 4,21,200/-
5. Attendant charges Rs. 50,000/-
6. Pain & sufferings Rs. 50,000/-
7. Curtailment of complete Rs. 1,00,000/-
enjoyment of life
Total Rs. 6,71,200/-
2. The insurer, by its appeal, submits that the tribunal had
assessed the functional disability to the extent of 15% and has granted
compensation on account of prospective loss of income on such
account by multiplier of 18 which was incorrect as there is no actual
loss of income, or employment, there being neither any claim made
nor proof adduced to such effect.
3. The claimant, on the other hand, by his appeal, contends that
his functional disability should have been taken as 28% as had been
certified (Ex.PX) by a board of doctors of Dr. Lal Bahadur Shastri
Hospital of the Govt. of NCT of Delhi, he having been found to be a
case of old, united and operated fracture of shaft of the right femur
bone. The claimant has also submitted by his appeal that the tribunal
has not awarded just compensation since the element of future price
rise affecting the income has not been considered; the loss of earnings
for the period of leave of absence for five months, and 12 days, has
not been compensated; and the awards under the non-pecuniary heads
of damages being inadequate.
4. The appeals were put in the category of 'regulars', to come
up on their own turn by order dated 21.01.2016. When the matters are
taken up, there is no appearance on behalf of the claimant. They have
been heard with the assistance of the counsel representing the insurer
and by perusal of the tribunal's record.
5. Having regard to the nature of injuries on which account the
claimant suffered permanent physical impairment in respect of which
opinion of board of doctors has been relied on, as indeed the nature of
job performed, the assessment of functional disability to the extent of
15%, as concluded by the tribunal, is found to be just and proper.
6. There is, however, merit in the plea raised in the appeal of the
claimant that the element of future prospects should have been
factored in [see Constitution Bench judgment dated 31.10.2017 in SLP
(C) 25590/2014, National Insurance Company Ltd. Vs. Pranay Sethi
and Ors.].
7. The contention of the insurer about the method of calculation
also is correct as in absence of any proof of loss of employment, the
multiplier of 18 could not have been applied. In normal course, the
present employment would assumably continue till the claimant
reaches the age of 60 years. In these circumstances, the loss of future
income due to disability would need to be calculated with the
multiplier of 9.
8. The prospective loss of income due to disability is re-
calculated as (13000 x 150/100 x 15 /100 x 12 x 9) Rs. 3,15,900/-.
Since the tribunal has awarded Rs. 4,21,200/- under this head, the
award would need to be reduced by (4,21,200 - 3,15,900) Rs.
1,05,300/-.
9. The tribunal concluded in (para 13 of) the impugned
judgment that the claimant was constrained to be on leave of absence
from duty for five months 12 days but it proceeded to award Rs.
25,000/- under this head of leave which should actually represent the
loss of income equivalent to the leave salary. Since the total
emoluments earned by the claimant at that point of time were Rs.
13,000/- per month, this was inappropriate. The amount on account of
loss of leave of absence is, thus, recalculated, taking it to be a case of
five and half months at (13000 x 5.5) Rs. 71,500/-. Thus, the award
under this head would need to be increased by (71,500 - 25,000) Rs.
46,500/-
10. Having regard to the nature of injuries sustained and the
disability suffered, the awards under the other heads are found to be
just and proper.
11. In above view, the total compensation needs to be reduced
by (1,05,300 - 46,500) Rs. 58,800/-. Thus, the total compensation is
reduced to (6,71,200 - 58,800) Rs. 6,12,400/-, rounded off to Rs.
6,13,000/- (Rupees six lakhs thirteen thousand only).
12. Following the consistent view taken by this Court, the rate of
interest is increased to 9% (nine per cent) 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.]
13. By order dated 02.11.2011 in MAC Appeal No. 843/2011,
the insurance company had been directed to deposit the entire awarded
amount with interest in UCO bank, Karkardooma Branch, Delhi. As
observed in the subsequent order dated 27.02.2012, the amount had
already been deposited accordingly with the claims tribunal and 50%
had been released to the claimant. The court had restrained any
further release during the pendency of the appeal of the insurance
company.
14. The tribunal is directed to calculate the amount payable to the
claimant in terms of the modification ordered above, and release the
balance to him from out of remainder in deposit, refunding excess, if
any, to the insurance company. Conversely, if any further amount
requires to be paid to the claimant, the insurance company will be
obliged to deposit the same with the tribunal making it available to be
released to the claimant.
15. Both appeals are disposed of in above terms.
16. The statutory amount of the insurance company shall be
refunded.
R.K.GAUBA, J.
NOVEMBER 03, 2017
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