Delhi High Court
Shriram General Insurance Co. Ltd vs Anil Sharma & Ors. on 15 November, 2017
$~R-492
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th November, 2017
+ MAC.APP.430/2012
SHRIRAM GENERAL INSURANCE CO. LTD...... Appellant
Through: Mr. Priyadarsi Acharya, Adv.
versus
ANIL SHARMA & ORS. ..... Respondents
Through: Mr. Hanish Saharawat, Adv. for
R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent (claimant) was travelling in Mahindra
Champion bearing registration no. DL 1LN 0947 (the vehicle) on
16.10.2010, it being driven by the second respondent (the driver) and
suffered injuries when it came to be involved in motor vehicular
accident at about 6 p.m. On his accident claim case (MACT
1258/2010) instituted on 14.12.2010, the tribunal upheld the case for
compensation holding the second driver responsible for the mishap.
The vehicle was admittedly owned by the third respondent and insured
against third party risk with the appellant (insurer). The tribunal
awarded compensation in the total sum of Rs.16,90,880/-, and
fastening the liability to pay with interest @ 7.5% p.a. calculating it
thus:-
S.No. Heads Compensation
Pecuniary damages (special damages)
1. Medical expenses Rs. 2,822/-
2. Loss of future income etc. Rs. 13,68,058/-
3. Special diet, conveyance etc. Rs. 20,000/-
Non-pecuniary damages (General damages)
1. Pain and sufferings& trauma and Rs. 3,00,000/-
loss of amenities etc.
Total Rs. 16,90,880/-
2. This appeal was directed to be put in the category of 'regulars'
by order dated 11.03.2016. In the context of application (CM No.
41123/2017) moved by the claimant for release of the amount, it came
before the Court on 14.11.2017 when it was adjourned for 23.11.2017
though with rider that it would retain its position in the list of
'regulars'. Since the appeal has come up for hearing, in the list of
'regulars' in its turn today, the date 23.11.2017 fixed earlier is
cancelled.
3. The insurer, by the appeal at hand, questions the calculation of
compensation, particularly the assessment of functional disability
taken by the tribunal as 90%. It is noted that due to injuries sustained
in the accident, the claimant suffered amputation of left leg below
knee. This has rendered him permanently disabled, he having been
certified (Ex.PW-1/7) by a board of doctors of Guru Govind Singh
Govt. Hospital to be physically disabled to the extent of 70% in
relation to left lower limb. The tribunal took this to be a case of
functional disability to the extent of 90% noting that claimant was
earning his livelihood as a labourer.
4. In similarly placed case involved in MAC Appeal No. 563/2009
Oriental Insurance Co. Ltd. vs. Sushila & ors. decided on 23.08.2017,
this Court has taken the functional disability to be 60%. Following the
said ruling, suitable correction in the present case would need to be
made.
5. In calculating the loss of future income due to functional
disability, the tribunal after assuming the notional income with the
help of minimum wages (Rs. 5,278) added the element of future
prospects of increase to the extent of 50%. Having regard to the ruling
of 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., this will have to be restricted to 40%.
6. Thus calculated, the loss of income due to disability in future is
recomputed as (5278 x 140 ÷ 100 x 60÷ 100 x 12 x 16)
Rs.8,51,235.84 rounded off to Rs.8,51,236/-. The tribunal had
awarded Rs.13,68,058/- under this head. The award would need to be
reduced by (13,68,058 - 8,51,236) Rs.5,16,822/-.
7. The awards under other heads are found to be just and adequate.
8. Thus, the total compensation is reduced to (16,90,880 -
5,16,822), Rs. 11,74,058/-, rounded off to Rs. 11,75,000/- (Rupees
Eleven Lacs Seventy Five Thousand Only).
9. Following the consistent view taken by this Court, the rate of
interest is increased to nine per cent (9%) 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. The insurer, however, also submits that the claimant was
travelling as gratuitous passenger and, therefore, the insurance
company cannot be burdened with the liability to pay. It is noted that
the tribunal has observed that, as per the evidence on record, the
service of the claimant had been availed by the owner of the vehicle,
for loading and unloading of the goods. In these circumstances, the
plea is rejected.
11. There being no justification for the addition of Rs.55,000/-
towards lawyers charges, the direction to that extent in the impugned
judgment is set aside.
12. By order dated 23.04.2012, the entire award had been directed
to be held in fixed deposit with UCO Bank, Delhi High Court Branch.
By subsequent orders dated 27.07.2012, 12.08.2013 and 25.10.2013,
some part of the deposit was released to the claimant. The registry
shall now calculate the balance payable to the claimant in terms of the
modification ordered above, refunding the excess in deposit, if any, to
the insurance company. Conversely, if there is further payment to be
made, the insurance company will be obliged to take necessary steps
by requisite deposit with the tribunal within thirty days. On the other
hand, if excess has been released, the claimant will be obliged to
reimburse the same to the insurance company.
13. The statutory deposit shall be refunded.
14. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 15, 2017
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