Delhi High Court
Nisha & Ors. vs United India Insurance Co. Ltd. & ... on 10 October, 2017
$~R-304 & 305
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 10th October, 2017
+ MAC APPEAL No. 161/2011
RAJ KUMAR MALIK ..... Appellant
Through: None.
versus
UNITED INDIA INSURANCE CO. LTD. & ORS.
..... Respondents
Through: Mr. Priyadarsi Acharya for Mr.
K.L. Nandwani, Adv. for R-1.
+ MAC APPEAL No. 162/2011
NISHA & ORS. ..... Appellants
Through: None.
versus
UNITED INDIA INSURANCE CO. LTD. & ORS.
..... Respondents
Through: Mr. Priyadarsi Acharya for Mr.
K.L. Nandwani, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 12.06.2006, a motor vehicular accident took place involving
two vehicles, one Chevrolet Tavera (SUV) bearing registration no. DL
1CJ 4092 and, the other, a bus of the Delhi Transport Corporation
(DTC) bearing registration no. DL PA 3037. Several persons suffered
injuries including Raj Kumar Malik and Rajiv Chopra, the latter
having died. Ten accident claim cases came to be instituted on
19.07.2008 before the motor accident claims tribunal one of which
(suit no. 334/2008) was filed by Raj Kumar Malik (appellant in MAC
Appeal 161/2011) seeking compensation for the injuries suffered by
him and another (suit no. 330/2008) by the wife and other members of
the family of Rajiv Chopra seeking compensation on account of his
death. The cases were clubbed by the tribunal for inquiry and decided
by a common judgment dated 20.04.2010. By the said judgment the
tribunal upheld the claim that the accident had occurred due to
negligence on the part of driver of DTC bus holding him responsible
as the principal tortfeasor and the DTC as the entity vicariously liable.
The United India Assurance Company Ltd. (the insurer) which had
issued an insurance policy at the instance of DTC in respect of the bus
to cover the third party risk for the period in question was held liable
to indemnify.
2. In the case of Raj Kumar Malik, the tribunal awarded
compensation in the total sum of Rs. 12,05,488/- and directed the
insurer (first respondent in these appeals) to pay the same with
interest, the said amount inclusive of Rs. 3,00,000/- for loss of
amenities, comfort, conveyance etc., Rs. 1,00,488/- for loss of leave
salary, Rs. 6,00,00/- for prosthetic limb, Rs. 1,70,000/- for
maintenance of artificial limb, Rs. 10,000/- towards conveyance &
special diet and Rs. 25,000/- towards attendant charges.
3. In the case on account of death of Rajiv Chopra, the tribunal
awarded total compensation in the sum of Rs. 15,13,894/-, the said
amount inclusive of Rs. 14,73,894/- towards loss of dependency, Rs.
10,000/- each towards loss of consortium and Funeral expenses and
Rs.20,000/- towards loss of love & affection.
4. These appeals were filed by the respective claimants in the said
two cases seeking enhancement. They were put in the category of
'regulars' by order dated 10th May, 2011. Though they were taken up
on certain dates thereafter for exploring the possibility of amicable
settlement, such settlement could not be achieved. When they are
taken up in their turn there is no appearance on behalf of the
appellants. The cases have been considered with the assistance of the
learned counsel for the first respondent (insurer) and by perusal of the
respective records of inquiry before the tribunal.
5. In the case of Raj Kumar Malik (appellant in MAC Appeal No.
161/2011) it is noted that by evidence he had proved that his right
upper limb below elbow had to be amputated. The tribunal while
awarding compensation ignored the disability certificate (Ex.PW-
5/13) issued by Guru Gobind Singh Govt. Hospital, New Delhi,
confirming him to be permanently disabled to the extent of 74% in
relation to the said upper limb. No compensation for loss of earning
capacity in future has been awarded presumably because the claimant
did not suffer any immediate loss of employment. The evidence would
show that the appellant was a government servant employed in the
Cabinet Secretariat of Govt. of India at a salary of Rs. 12,651/- per
month on the date the accident occurred. The evidence would also
show that he continued to be in service of the Government inspite of
such physical handicap which is permanent in nature. But then, it has
to be remembered that as a government servant he would superannuate
on attaining the age of 60 years. Loss of earning capacity post
retirement had to be considered by the award of compensation and for
such purposes, the tribunal could adopt the multiplier of 9. In such
calculation, however, it would also need to be kept in mind that the
claimant would have earned 50% of the last emoluments drawn as
pension and thus the consequent functional disability will have to
make up for the loss against the balance.
6. Having regard to the above facts, the notional income after
factoring in the element of future prospects of progressive rise in
income is taken as (12651 x 150 ÷100) Rs. 18976.5, rounded off to
Rs. 19,000/-. The pension to the extent of 50% would come to (19000
÷2) Rs. 9500/-. Having regard to the percentage of loss of earning
capacity as indicated against the third entry in second part of the first
schedule appended to Employees Compensation Act, 1923, the
functional disability is taken as 70%. Thus, the loss of earning
capacity due to permanent disability is computed as (9500 x 70 ÷ 100
x 12 x 9) Rs. 7,18,200/-.
7. There is no case made out for any modification of the award
under the other heads. Thus, the compensation in favour of Raj
Kumar Malik (appellant in MAC Appeal No. 161/2011) is increased
by Rs. 7,18,200/- (rupees seven lacs eighteen thousand and two
hundred only). It shall carry interest as levied by the tribunal. It is
directed that it shall be paid to him in the form of interest bearing
fixed deposit receipt to be taken out from a nationalized bank in his
name for a period of ten years with right to draw periodic interest.
8. The claimants in the case of death of Rajiv Chopra have
expressed grievance by their appeal primarily for the reason that there
was no element of future prospects of increase factored in. This
grievance is found to be correct. The claimants had proved income-tax
returns (ITRs) for the assessment years 2007-2008 (Ex.PW-2/2) and
2008-2009 (Ex.PW-2/1), the first indicating gross total income of Rs.
98,682/- and other of Rs. 1,09,310. There was irrefutable evidence of
progressive rise in income, and thus the element of future prospects of
increase cannot be denied [see judgment dated 28.03.2016 in
MAC.APP. 548/2013 United India Insurance Co. Ltd. v. Kamla &
Ors.].
9. Since the deceased was 25 years old on the relevant date, such
increase on account of future prospects will have to be to the extent of
50%. The tribunal took Rs. 1,09,310/- as the last income which had
been proved. Upon the element of future prospects being added and
after deduction of 1/4th towards personal & living expenses, there
being four claimants, applying the multiplier of 18, the loss of
dependency is re-calculated as (109310 x 150 ÷ 100 x 3 ÷ 4 x 18) Rs.
22,13,527/-, rounded off to Rs. 22,14,000/-.
10. It is noted that the awards under the non-pecuniary heads of
damages are highly deficient. Following the view taken in Rajesh &
Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 and Shashikala V.
Gangalakshmamma (2015) 9 SCC 150, compensation in the sum of
Rs.1,00,000/- each on account of loss of love & affection and loss of
consortium and Rs. 25,000/- each towards loss of estate and funeral
expense are added. Thus, the total compensation comes to
(22,14,000+ 1,00,000 + 1,00,000 + 25,000 + 25,000) Rs. 24,64,000/-
(rupees twenty four lacs and sixty four thousand only). The award is
modified accordingly. It shall carry interest as levied by the tribunal.
11. Having regard to the dispensation in favour of other claimants,
it is directed that the entire enhanced portion of the award shall fall to
the share of the first appellant Nisha (widow) alone, for it to be
released to her in the form of interest bearing fixed deposit receipts
taken out in a nationalized bank for a period of ten years with right to
draw periodic interest.
12. The first respondent (insurer in both these appeals) is directed to
satisfy the awards, as modified above, in each case, by requisite
deposits with the tribunal within thirty days.
13. The appeals are disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 10, 2017
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