Delhi High Court
Shriram General Insurance Co. ... vs Naresh & Ors. on 23 November, 2017
$~R-547
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd November, 2017
+ MAC APPEAL 759/2012
SHRIRAM GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Priyadarsi Acharya,
Advocate.
versus
NARESH & ORS. ... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent (the claimant), then aged 36 years, earning
his livelihood as a worker in a factory, suffered injuries in a motor
vehicular accident that occurred on 23.03.2011 due to negligent
driving of Truck bearing registration no.HR-69-4919, which was duly
insured against third party risk with the appellant (the insurer) for the
period in question. On his accident claim case (MACT case No.
128/2011), the Tribunal, by judgment dated 17.05.2012, returned a
finding that the accident had occurred due to negligent driving of the
truck by the second respondent holding him and the third respondent
(owner) jointly and severally liable to pay compensation. The
Tribunal computed the compensation by the said judgment in the total
sum of Rs.19,00,129/- calculating thus:-
A) Pecuniary damages (Special damages)
a) Medical bills ......................................Rs.34,213/-
b) Future Medical Expenses........................Rs.30,000/-
c) Special diet....................................... Rs.25,000/-
d) Conveyance charges..............................Rs.10,000/-
e) Attendant charges.................................Rs.36,000/-
f) Loss of Income................................. Rs.36,504/-
g) Loss of future income.............................Rs.14,78,412/-
B) Non-peciniary damages (General damages):
a) Pain, suffering, inconvenience, shock
and frustration etc ..................................Rs.70,000/-
h) Loss of amenities and shortening of life.........Rs.1,50,000/-
______________
Total: Rs.19,00,129/-
2. Upon error being pointed out by an application, the Tribunal
revised the said award by subsequent order dated 03.07.2012 and
added Rs.1,09,512/- to the total compensation, such amount being
towards loss of income. The insurer was called upon to pay the above
said amount of compensation with interest at 9% per annum.
3. By the appeal at hand, the insurer presses reconsideration of the
award submitting that it is excessive, arguing that the functional
disability assumed to the extent of 90% was uncalled for. It is also the
argument of the insurer that the loss of income has been added twice
to the compensation. It is further the submission that the non-
pecuniary damages are on the higher side.
4. It is noted that on account of the injuries suffered, the claimant
underwent prolonged medical procedure including surgeries which led
to amputation of his right lower limb below knee. He was examined
by a board of doctors of Dr. Baba Saheb Ambedkar hospital which
issued disability certificate (Ex.PW3/A) according to which the
disability is permanent and assessed as 60% physical impairment. The
Tribunal, however, took it as functional disability to the extent of
90%. This assumption of functional disability is apparently
inappropriate. In similarly placed case which was subject matter of
MAC. Appeal No. 563/2009, Oriential Insurance Co. Ltd. v. Smt.
Sushila & Ors., decided on 23.08.2017, this Court had taken the
functional disability to the extent of 60%. Following the said ruling,
the loss of future income due to disability needs to be reconsidered.
5. There is one more error committed in the calculation by the
Tribunal which needs small correction. Future prospects of increase
in income to the extent of 50% has been added. Following the ruling
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., this would have to be restricted to 40%.
6. Thus, loss of future income due to disability is re-calculated as
Rs. (6084 X 140/100 X 60/100 X 12 X 15) Rs.9,19,900.80 rounded
off to Rs.9,20,000/-.
7. Indeed there is an overlapping in the calculation in the judgment
dated 17.05.2012 and the order dated 03.07.2012. The Tribunal had
initially granted loss of income during the period of treatment for six
months. But then, on error being pointed out, the award under the said
head was revised so as to calculate it for the period of 12 months
against the income notionally assumed with the element of future
prospects which was inappropriate. The loss of income for the period
of 12 months would come to Rs.(6084 X 12) Rs.73,008/- rounded off
to Rs.74,000/-. Thus, this amount will have to be added to the
compensation instead of the two amounts mentioned under the head of
loss of income in the impugned judgment and the order.
8. Having regard to the facts and circumstances of the case, the
non-pecuniary damages awarded by the Tribunal do not seem to be
excessive and so do not call for any interference, rather there is a
deficiency to the effect that there is no provision made for the artificial
limb, evidence in which regard have been duly adduced by the
claimant before the Tribunal through Kapil (PW-2) and Ashutosh
Burman (PW-4), officials from a company, engaged in the business of
providing prosthetic limbs, Endolite India Limited. According to the
said evidence, the cost of arrangement of artificial limb at that point of
time was Rs.87,700/-. PW-4 clarified that the life of such artificial
limb would generally be two years, whereafter it would require either
a change or replacement of its components. In the given facts and
circumstances, some arrangement will have to be put in position so
that a corpus is created for it to be tapped by the claimant as and when
he requires the artificial limb to be changed. Taking into account the
quotation of the expenditure for one such artificial limb, as in 2012,
and adding the overhead charges, that would be required, as also the
possibility of its replacement, assumed to be minimum three during
the life time of the claimant, an amount of Rs.4,00,000/- deserves to
be added in the compensation under this head.
9. It is also noted that there is no award made towards
disfigurement. An amount of Rs.1,00,000/- under the said head is
added.
10. Putting together all the other heads of damages awarded by the
Tribunal, the total compensation in the case comes to (34,213 +
30,000 + 25,000 + 10,000 + 36,000 + 74,000 + 9,20,000 + 1,00,000 +
1,50,000 + 4,00,000 + 1,00,000) Rs.18,79,213/- rounded off to
Rs.18,80,000/- (Rupees Eighteen Lakhs and Eighty Thousand Only).
The award is modified accordingly. Needless to add, it shall carry
interest as levied by the Tribunal.
11. By order dated 20.07.2012, the insurance company had been
directed to deposit 75% of the awarded amount with up-to-date
interest with UCO Bank, Delhi High Court branch and out of such
deposit, Rs.3,00,000/- were permitted to be released to the claimant.
By order dated 23.09.2013, the insurance company was directed to
deposit the balance 25% of the awarded amount with up to date
interest and upon such deposit, the amount so deposited was to be
released to the claimant. If such release has been made, it is clear that
excess amount would have been received by the claimant, which he is
liable to refund. Conversely, if such release has not been made and
there is any deficiency, the insurer will be liable to make it good by
requisite deposit with the Tribunal within 30 days. Both sides are
given liberty to take appropriate proceedings in this regard.
12. The appeal is disposed of in above terms.
13. The statutory amount shall be refunded to the appellant.
R.K.GAUBA, J.
NOVEMBER 23, 2017
srb
