Delhi High Court
The New India Assurance Co. Ltd. vs Mohd. Aslam Ali & Ors. on 27 November, 2017
$~R-567
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th November, 2017
+ MAC.APP. 878/2012
THE NEW INDIA ASSURANCE CO. LTD...... Appellant
Through: Mr. J.P.N. Shahi, Advocate with
Ms. Komal Dhingra, Advocate
Versus
MOHD. ASLAM ALI & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent, then aged less than 20 years, suffered
injuries in a motor vehicular accident that occurred on 08.09.2005, due
to negligent driving of bus bearing registration no. DL-1PA-5913,
which was admittedly insured against third party risk for the period in
question with appellant (insurer). On his accident claim case (Suit
No.462/2010/2008) instituted on 22.04.2008, the tribunal held inquiry
and, by judgment dated 15.05.2012, held that he had suffered injuries
due to negligent driving on the part of bus driver, which finding has
attained finality as it was not challenged by any of the contesting
parties. The tribunal awarded total compensation in the sum of
Rs.8,27,523/- with interest @ 9% per annum directing the insurer to
pay the same.
2. The appeal challenges the computation of compensation on the
assessment that the appellant had suffered total functional disability to
the extent of 100%.
3. The appeal was put in the list of „Regulars‟ as per order dated
21.03.2016. When it is called out on its own turn, there is no
appearance on behalf of the first respondent (the claimant). The
learned counsel for the appellant has been heard and the record
perused.
4. The claimant was his own witness (PW-1) before the tribunal.
He proved by the medical record that the injuries sustained in the
accident included "compound communited supra condyral fracture
with degloving injury over right arm lower tibia and right forearm
whole volar aspect and pastrally dorsally", subsequent evaluation also
indicating "communited fracture supracondylar humerus of right
side", resulting in active bleeding and the muscles being exposed. The
treatment that was undergone included several surgical procedures, the
disability in the right elbow having remained unrepaired. The
claimant was evaluated by board of doctors of Pandit Madan Mohan
Malviya hospital which issued disability certificate on 12.08.2011
affirming that the claimant is a case of permanent physical impairment
to the extent of 26% in relation to the right upper limb (page 331 of
the tribunal‟s record).
5. The claimant had stated before the tribunal that he was earning
his livelihood as an employee in the canteen at Jamia Milia School. It
is on that basis that the tribunal took him to be a case of total
functional disability meriting computation of award for loss of income
in future. In the opinion of this court, the said evaluation is
unfounded. Having regard to the nature of injuries suffered, on the
evaluation by the medical board, the disability cannot be treated as
more than thirty per cent (30%) functional disability
6. At the same time, 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., the
element of future prospects of increase in income to the extent of forty
per cent (40%) would have to be added. Thus, the loss of future
income due to disability is recomputed as Rs.(3165.90 x 140/100 x
30/100 x 12 x 18) Rs.2,87,210.45 rounded off to Rs. 2,87,210/-.
7. Since the tribunal had added Rs.6,83,838/- under this head, the
award would need to be reduced by (6,83,838/- - 2,87,210/-)
Rs.3,96,628/-.
8. In the opinion of this court, however, the awards under the head
of pain and suffering and loss of appearance/amenities/enjoyment of
life are inadequate. It is noted that the amount of Rs.50,000/- has been
added under the composite head of loss of
appearance/amenities/enjoyment of life. The said amount is treated as
compensation towards loss of disfigurement (appearance). The
amount of damages under the head of pain and suffering are increased
to Rs.1,00,000/- and another amount of Rs.1,00,000/- is added for loss
of amenities of life.
9. Thus, the net reduction in the award would be (3,96,628 -
55,000 - 1,00,000) Rs.2,41,628/-. The total award is thus reduced to
Rs.(8,27,523 - 2,41,628) Rs.5,85,895/- rounded off to Rs.5,86,000/-
(Rupees Five Lac Eighty Six Thousand only).
10. The award is modified accordingly. Needless to add, it shall
carry interest as levied by the tribunal.
11. By order dated 17.08.2012, the insurance company had been
directed to deposit the entire awarded amount minus counsel fee and
out of pocket expenses with proportionate interest with UCO bank and
out of said deposit, fifty per cent (50%) was directed to be released to
the claimant. The registry shall now calculate the balance payable to
the claimant under the modified award and release the same, refunding
the excess in deposit with corresponding interest to the insurance
company along with statutory deposit.
12. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 27, 2017
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