Delhi High Court
National Insurance Company Ltd. vs Himayu Ali & Anr. on 14 November, 2017
$~R-482 & 483
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 14th November, 2017
+ MAC APPEAL 373/2012
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Manoj Ranjan Sinha and
Ms. Mani Shandilya, Advocates
versus
HIMAYU ALI & ANR. ..... Respondents
Through: Mr. S.N. Parashar, Adv. for R-1
+ MAC APPEAL 1047/2013
HIMAYU ALI & ORS. ..... Appellant
Through: Mr. S.N. Parashar, Advocate
versus
NATIONAL INSURANCE COMPANY LTD. ..... Respondent
Through: Mr. Manoj Ranjan Sinha and
Ms. Mani Shandilya, Advocates
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Himayu Ali (appellant in MACA 1047/2013 and first
respondent in MACA 373/2012) suffered injuries in a motor vehicular
accident that occurred on 22.01.2010 due to the negligent driving of a
truck bearing registration no.HR-37-B-7755, it admittedly being
insured against third party risk with National Insurance Company Ltd.
(appellant in MACA 373/2012 and first respondent in MACA
1047/2013).
2. The Motor Accident Claims Tribunal (Tribunal) held inquiry
and, by judgment dated 18.02.2012, held that the said claimant had
suffered injuries due to negligent driving of the truck. It found that the
injuries suffered by the claimant included grievous hurt in the right
ankle knee besides loss of toes of the right foot. The claimant had
been examined by a board of doctors constituted by Chief Medical
Officer, Bulandshahar which issued disability certificate (Ex. PW2/A)
affirming that he has been rendered a case of permanent disability, his
physical impairment being on account of post traumatic severe
anklosis of right ankle, it being 75% in relation to the said lower limb.
The tribunal took it to be a case of functional disability to the extent of
38%. It awarded compensation in the total amount of Rs.8,50,432/-, it
having been calculated thus :-
Compensation towards pain and Rs.1,00,000/-
sufferings
Compensation towards loss of Rs.1,00,000/-
amenities and enjoyment
Compensation towards change of gait Rs.75,000/-
/ disfigurement
Loss of earning capacity due to Rs.4,09,150/-
injuries
Loss of earning of petitioner for 12 Rs.63,336/-
months @ Rs.5,278/- per month
Expenses towards medical bills Rs.2,946/-
Compensation towards marriage Rs.75,000/-
prospect
Compensation towards conveyance Rs.25,000/-
and special diet (without bills)
Total 8,50,432/-
3. The liability to pay the compensation was fastened on the
National Insurance Company Ltd. (insurer) with interest at the rate of
7.5% p.a.
4. The insurer by its appeal (MACA 373/2012) has argued that the
damages awarded are excessive. Per contra, the claimant by his
appeal (MACA 1047/2013) has submitted that the tribunal fell into
error by not including the element of future prospects of increase for
compensating the loss of future income due to disability.
5. The contention of the claimant to above effect may be accepted
in view of 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. Since the income was
assumed with the help of minimum wages (Rs.5278/- p.m.), the
element of future prospects of increase to the extent of 40% are added.
The loss of income due to functional disability correctly assessed at
38% on the multiplier of 17 (he being more than 26 years old) is, thus,
re-computed as [Rs.5,278/- x 140/100 x 38 / 100 x 12 x 17]
Rs.5,72,810.78, rounded off to Rs.5,72,811/- (Rupees Five lakh
seventy two thousand eight hundred and eleven only). Since the
tribunal had awarded Rs.4,09,150/- under this head, the compensation
on this score would need to be enhanced by [Rs.5,72,811/- (-)
Rs.4,09,150/-] Rs.1,63,661/- (Rupees One lakh sixty three thousand
six hundred and sixty one only).
6. The compensation under the other heads of damages included in
the award is found to be just and fair. Thus, the total compensation is
increased to [Rs.8,50,432/- + Rs.1,63,661/-] Rs.10,14,093/-, rounded
off to Rs.10,15,000/- (Rupees Ten lakh and fifteen thousand only).
7. 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.].
8. By order dated 11.04.2012 in MACA 373/2012, the insurance
company had been directed to deposit the entire awarded amount with
up-to-date interest with the Registrar General and, by subsequent order
dated 07.12.2012, seventy five percent (75%) was permitted to be
released to the claimant. Since the award has been increased, the
Registry shall release the balance with accrued interest to the claimant.
The insurance company will be obliged to deposit the balance of its
liability under the modified award by requisite deposit with the
tribunal within 30 days making it available to be released to the
claimant.
9. The statutory deposit of the insurance company shall be
refunded, after proof of deposit is furnished.
10. Both appeals are disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 14, 2017
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