Delhi High Court
Som Pal Singh vs Rajeev Kumar Aggarwal & Ors. on 16 November, 2017
$~R-501 & 502
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 16th November, 2017
+ MAC APPEAL 502/2012
THE NEW INDIA ASSURANCE COMPANY
LTD. ..... Appellant
Through: Mr. J.P.N. Shahi, Advocate
versus
SOM PAL SINGH & ORS. ..... Respondents
Through: Mr. D.K. Sharma, Mr. S.K.
Vashistha and Mr. Abhinav
Sharma, Advocates for R-1
+ MAC APPEAL 567/2012
SOM PAL SINGH ..... Appellant
Through: Mr. D.K. Sharma, Mr. S.K.
Vashistha and Mr. Abhinav
Sharma, Advocates
versus
RAJEEV KUMAR AGGARWAL
& ORS. ..... Respondents
Through: Mr. J.P.N. Shahi, Adv. for R-2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Sompal Singh (appellant in MACA 567/2012 and first
respondent in MACA 502/2012) had instituted accident claim case
(suit no.1080/2008) on 16.12.2008. The Motor Accident Claims
Tribunal (Tribunal), after inquiry, held that he (claimant) had suffered
injuries and had been rendered permanently disabled in the
consequence, on account of the motor vehicular accident that had
occurred on 11.09.2008 due to negligent driving of a motor vehicle
described as a truck bearing registration no.HR-51GA-1172, which
had concededly been insured against third party risk for the period in
question with New India Assurance Company Ltd. (appellant in
MACA 502/2012 and the second respondent in MACA 567/2012). It
awarded compensation in the total sum of Rs.5,42,000/- calculating it
thus :-
Cost on treatment Rs.80,000/-
Pain and sufferings Rs.10,000/-
Conveyance & Special diet Rs.20,000/-
Payment for Attendant Rs.10,000/-
Loss of Income Rs.12,000/-
Future loss of Income Rs.3,60,000/-
Loss of amenities Rs.50,000/-
Total Rs.5,42,000/-
2. The liability to pay the compensation was fastened against the
said insurance company (insurer) with interest at the rate of 7.5% p.a.
Both the claimant and the insurer are in appeal, the latter pressing its
appeal questioning the award and insisting that it should have been
exonerated since it had proved that the driver of the offending vehicle
was not holding a valid or effective driving licence at the relevant time
and the former praying for enhancement of compensation.
3. Both appeals were put in the list of 'Regulars', to come up on
their own turn as per order dated 02.03.2016. When they are taken up
in their own turn, there is no appearance on behalf of the other
respondents i.e. the driver or owner of the offending vehicle.
4. The claimant, it is noted, had proved that as a result of the
accident he had suffered grievous injuries that included fractures in the
left bone, the said bone having been crushed and totally damaged.
The surgical procedure that was undergone required removal of the
shattered bone and implant of steel rod in its place. The damage also
related to the lower hip bone. The claimant has been found, upon
medical examination by a board of doctors of Guru Tegh Bahadur
Hospital, to be permanently disabled, the locomotor impairment
having been assessed to be 75% in relation to the left lower limb (page
217 of the tribunal's record). The tribunal assessed the functional
disability to the extent of 50% which, in the considered view of this
court, is appropriate evaluation.
5. It was found that the claimant was 40 years' old at the time of
the accident and that his income was Rs.4,000/-. p.m. from his
temporary employment with Delhi Transport Corporation. The loss of
future income has been calculated on such basis at Rs.3,60,000/-. It is,
however, noted that the earnings assumed by the tribunal would be
lower than the minimum wages (Rs.4107/-) that were payable at the
relevant point of time. It is also noted that in this calculation, the
element of future prospects of increase in income has not been
considered. Given the nature of employment and the age at which the
accident occurred, the element of future prospects of increase to the
extent of 40% should have been added. [see judgment 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.).
6. The loss of income in future due to functional disability is thus
re-computed as [Rs.4,107/- x 140/100 / 2 x 12 x 15] Rs.5,17,482/-,
rounded off to Rs.5,18,000/- (Rupees Five lakh and eighteen thousand
only).
7. It is also the grievance of the claimants that the treatment had
continued for almost two years whereas the tribunal has awarded
compensation for corresponding loss of income only for three months.
It is noted that the record of treatment does show several periods of
hospitalization for repeat surgical procedures, the last of which relates
to July 2010. Given the nature of injuries suffered, the plea to above
effect must be accepted. Thus, the loss of income for the period of
treatment is re-calculated as [Rs.4,107 x 24] Rs.98,568/-, rounded off
to Rs.1,00,000/- (Rupees One lakh only).
8. Given the nature of the permanent disability sustained and the
prolonged period of treatment undergone, the awards under the heads
of pain and suffering and loss of amenities of life are found to be
grossly inadequate. They are increased to Rs.1,00,000/- each. In
addition, Rs.50,000/- is awarded towards loss of dis-figurement.
9. Putting together, all the above mentioned heads, as also the
other heads of damages awarded by the tribunal, the total
compensation in the case comes to [Rs.5,18,000/- + Rs.1,00,000/- +
Rs.1,00,000/- + Rs.1,00,000/- + Rs.50,000/- + Rs.80,000/- +
Rs.20,000/- + Rs.10,000] Rs.9,78,000/- (Rupees Nine lakh and
seventy eight thousand only). The award is modified accordingly.
10. Following the consistent view taken by this Court, the rate of
interest is increased to 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.]
11. By order dated 08.05.2012 in MACA 502/2012, the insurance
company had been directed to deposit the entire awarded amount with
up-to-date interest with UCO Bank, Delhi High Court Branch which
was ordered to be kept in fixed deposit receipt initially for a period of
six months. By order dated 07.12.2012, fifty percent (50%) of such
awarded amount was permitted to be released. Since the
compensation has been increased, the balance lying in deposit with
accrued interest shall be released to the claimant in terms of the
judgment of the tribunal. The insurance company shall be liable to
satisfy the enhanced award by requisite deposit with the tribunal
within 30 days, it to be released in the form of fixed deposit interest
bearing receipt taken out from a nationalized bank for a period of
seven years with right to draw periodic interest. It is noted that while
entertaining the appeal of the insurance company by order dated
08.05.2012, notice was issued only to the claimant, the plea for
exoneration having been repelled. In these circumstances, the said
plea cannot be entertained at this stage. The interest of the insurance
company is duly protected by the recovery rights which have already
been granted.
12. The statutory deposit shall be refunded to the insurance
company after it furnishes proof of satisfaction of the enhanced award.
13. Both appeals are disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 16, 2017
yg
