Delhi High Court
National Insurance Company Ltd. vs Prashant Kumar Sharma & Ors. on 30 November, 2017
$~44 (R-563)
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th November, 2017
+ MAC. APPEAL No.835/2012 and CM No.43223/2017
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
versus
PRASHANT KUMAR SHARMA & ORS. .....Respondents
Through: Ms. Suman Bagga, Adv.for R-1
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent (claimant) was the petitioner before the
tribunal, in accident claim case (MACT No.942/10/07) instituted on
05.10.2007, which was decided by the tribunal, by judgment dated
26.04.2012, returning a finding that he had sustained injuries and
consequently suffered permanent disablement, on account of motor
vehicular accident that had occurred on 10.11.2006, due to rash
driving of Maruti car bearing registration No.DL-1CF-1366, which
was admittedly insured against third party risk for the period in
question with the appellant (insurer). The tribunal concluded that the
claimant had suffered functional disability to the extent of fifty per
cent (50%) and, on that basis, granted the award in the total sum of
Rs.23,93,500/-, calculating it thus:-
Sl.No. Heads Amount
(in Rs.)
1. Medical expenses 23,500/-
2. Future medical expenses 1,00,000/-
3. Loss of future income etc. 19,12,500/-
4. Special diet 10,000/-
5. Conveyance 10,000/-
6. Loss of income for six months 75,000/-
7. Damage of laptop 37,500/-
8. Pain and sufferings and trauma 50,000/-
9. Loss of amenities & enjoyment of life 75,000/-
10. Loss of marriage prospect 1,00,000/-
TOTAL 29,93,500/-
2. The insurer was directed to pay the above mentioned amount
with interest @ nine per cent (9%) p.a, this in addition to Rs.51,000/-
towards lawyer's fee and Rs.4,000/- as out of pocket expenses.
3. The insurer by the appeal at hand has questioned the quantum of
compensation, directions to pay lawyer's fee and out of pocket
expenses.
4. During the pendency of the appeal, the respondent had moved
an application (CM APPL.43223/2017) seeking to bring on record
change of his name and address. There being no objection to the said
application, the prayer is granted. New particulars of the respondent
shall be taken on record.
5. The injuries suffered in the accident included loss of four toes
and part of left foot. The claimant was earning his livelihood as an
agent of the insurance company during the relevant period. The
tribunal has assessed the functional disability to the extent of fifty per
cent (50%) which, in the opinion of this court, was inappropriate. It
is only in case of amputation of the foot that such assessment would
be justified. Having regard to Entry No.24 in the Second Part of the
First Schedule appended to the Employees Compensation Act, 1923,
the functional disability in the case is taken as twenty per cent (20%).
6. It was shown to the satisfaction of the tribunal that the claimant,
then aged around 29 years, was earning Rs.1,50,000/- per annum.
The tribunal added element of future prospects of increase in income
to the extent of 50%, which factor is questioned by the appellant.
7. Having regard to 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
submission must be accepted and the factor of future prospects is
restricted to forty per cent (40%) only. Thus, the loss of future
income due to disability is re-computed as (1,50,000/- x 140/100 x
20/100 x 17) Rs.7,14,000/-.
8. The plea of the insurance company that one-third should have
been deducted towards personal expenses in the calculation cannot be
accepted as such consideration does not come in where the claim is
for compensation for injuries.
9. As pointed out by the counsel for the claimant, the award of
Rs.50,000/- towards pain and suffering and trauma and Rs.75,000/-
towards loss of amenities and enjoyment of life are inadequate. The
same are increased to Rs.1,00,000/- each. The awards under the other
heads of damages are found to be correct and, therefore, do not call
for any interference.
10. In view of the above, the award needs to be reduced by
[(19,12,500/-) - (7,14,000/- + 50,000/- + 25,000/-)] Rs.11,23,500/-.
Thus, the award is reduced to (23,93,500/- - 11,23,500/-)
Rs.12,70,000/- (Rupees Twelve Lacs Seventy Thousand Only).
Ordered accordingly.
11. Needless to add, the award shall carry interest as levied by the
tribunal.
12. There being no justification for such inclusion, directions in the
impugned order about counsel fee and out of pocket expenses are set
aside.
13. By order dated 01.08.2012, the insurance company had been
directed to deposit fifty per cent (50%) of the awarded amount
excluding counsel fee with UCO Bank, Delhi High Court Branch,
New Delhi. By order dated 17.04.2013, fifty per cent (50%) of the
deposited amount was released to the claimant.
14. It appears that the tribunal had recovered the entire amount by
attachment in the course of execution proceedings. In these
circumstances, it is directed that if the amount was deposited with it
the registry shall recalculate the amount payable to the claimant in
terms of the modifications ordered above and release the balance, if
any, to the claimant, refunding the excess, if any, to the insurance
company along with statutory deposit. Similar exercise will also be
carried out at the end of the tribunal for needful further directions.
15. The appeal along with pending application stands disposed of in
above terms.
R.K.GAUBA, J.
NOVEMBER 30, 2017
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