Delhi High Court
Shriram General Insurance Co. ... vs Pawan Kumar Sharma & Ors. on 9 November, 2017
$~R-446 & 447
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 9th November, 2017
+ MAC APPEAL No. 50/2012 and CM 739/2012
SHRIRAM GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
versus
PAWAN KUMAR SHARMA & ORS. ..... Respondents
Through: Mr. Manish Maini, Adv. for R1
+ MAC APPEAL No. 414/2015
PAWAN KUMAR SHARMA ..... Appellant
Through: Mr. Manish Maini, Advocate
versus
SHRIRAM GENERAL INSURANCE CO. LTD.
& ORS. ..... Respondents
Through: Mr. Pankaj Seth, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Pawan Kumar Sharma (appellant in MACA 414/2015), he also
being a respondent in the connected appeal (MACA 50/2012) had
instituted accident claim case (suit no.405/10) on 23.07.2010 seeking
compensation for injuries suffered in a motor vehicular accident that
had occurred on 05.06.2010, statedly due to the negligent driving of
three wheeler scooter bearing registration no.UP-16T-1227 (TSR) by
Brijesh Kumar Tiwari, a respondent in these appeals.
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry
and, by judgment dated 25.08.2011, accepted the evidence regarding
negligence on the part of the TSR driver to be the cause for accident.
The tribunal found that the injuries suffered by the claimant had
rendered him permanently disabled, his functional disability being
assessed to the extent of 25%. The claimant had pleaded that he was
earning his livelihood by running a stationery shop. He, however,
could not produce any documentary evidence in this regard in
corroboration. He had also shown by evidence that he was pursuing a
course of study leading to award of graduation degree from University
of Delhi. The tribunal assessed the income on the basis of minimum
wages (Rs.6448) payable to a matriculate during the relevant period
and calculated the compensation accordingly. It awarded total
amount of Rs.4,43,944/-, the same having been calculated thus :-
Medical expenses Rs.30,888/-
Conveyance Rs.5,000/-
Special diet Rs.5,000/-
Loss of income Rs.12,896/-
Prospective loss of income Rs.2,90,160/-
Pain and sufferings Rs.50,000/-
Curtailment of enjoyment of life Rs.50,000/-
TOTAL Rs.4,43,944/-
3. The liability to pay the compensation with interest at the rate of
7.5% p.a. was placed at the door of Shriram General Insurance
Company Ltd. (insurer) which had issued the insurance policy in
respect of the TSR covering the period in question.
4. The insurer, by its appeal (MACA 50/2012), raises two points at
the hearing, namely, that the finding on the issue of negligence on the
part of the TSR was incorrect and, second, that the functional
disability has been over rated.
5. Per contra, the claimant, by his appeal (MACA 414/2015),
submits that the functional disability should have been assessed at a
higher level given the nature of injuries suffered.
6. It is noted that the claimant had appeared as his own witness
(PW-1) on the strength of his affidavit (Ex. P1) wherein he had
narrated the sequence of events leading to the mishap. According to
his version, he was travelling as a passenger in the TSR, the driver
whereof had driven with excessive speed which was the cause for its
collision against another vehicle (Tempo), this inspite of caution
administered by him to the driver during the course of journey, to be
careful. None of the respondents in the inquiry before the tribunal
made any effort to examine the TSR driver or, for that matter, the
driver of the Tempo which is the other vehicle involved in the
collision. In these circumstances, the evidence of PW-1 having gone
virtually unassailed and unimpeached, there is no good reason why the
finding on the issue of negligence should be disturbed.
7. The evidence would show that the claimant had suffered
fracture of the shaft of the left humerus bone. The treatment that was
undertaken included surgical process wherein a screw fixation was
done and limb repaired accordingly. The claimant proved the
disability certificate (Ex. PX) issued by the board of doctors of Lal
Bahadur Shastri Hospital of the Government of NCT of Delhi
affirming that he has been rendered permanently physically disabled
in the left upper limb on account of the said implant, the physical
impairment having been assessed to the extent of 61% in relation to
that part of the body. Having regard to the nature of injuries suffered
and the disability which has followed, as indeed the nature of
avocation in which the claimant stated he was engaged, the functional
disability is found to have been over rated. It is assessed by this court
to the extent of 10% (ten percent).
8. There is, however, an error on the part of the tribunal in not
taking into account the element of future prospects while calculating
the loss of income due to functional disability in future. Following the
dispensation in the judgment of a 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., the said element
to the extent of 40% (forty percent) will have to be added.
9. The tribunal adopted the multiplier of 15. Since the claimant
was 31 years old on the relevant date, the appropriate multiplier would
be 16.
10. Thus, the loss of future income due to disability is re-computed
as [Rs.6,448 x 140/100 x 10/100 x 12 x 16] Rs.1,73,322.24, rounded
off to Rs.1,73,323/-. Since the tribunal has awarded Rs.2,90,160/-
under this head, the compensation would deserve to be reduced by
[Rs.2,90,160/- (-) 1,73,323/-] Rs.1,16,837/-. The awards under the
non-pecuniary heads of damages granted by the tribunal are found to
be just and appropriate.
11. The award is, thus, reduced to [Rs.4,43,944/- (-) Rs.1,16,837/-]
Rs.3,27,107/-, rounded off to Rs.3,28,000/- (Rupees Three lakh and
twenty eight thousand only).
12. Following the consistent view taken by this Court, the rate of
interest is increased to 9% per annum (nine percent) 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 13.01.2012 in MACA 50/2012, the insurance
company had been directed to deposit the entire awarded amount with
up-to-date interest with the Registrar General. In terms of order dated
29.01.2013, seventy five percent (75%) of the said amount was
permitted to be released to the claimant. The Registry shall calculate
the amount payable to the claimant in terms of the modification
ordered above and release the balance, if any, refunding the excess in
deposit to the insurance company. Conversely, if there is any
deficiency in the deposit, the insurance company will make it good
within 30 days by requisite deposit with the tribunal and further if the
claimant has received in excess of his entitlement, he shall be liable to
refund it through the tribunal to the insurance company within the
same period.
14. The statutory amount deposited by the insurance company shall
be refunded.
15. Both appeals and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
NOVEMBER 09, 2017/yg
