Delhi High Court
Bharti Axa Gen. Ins. Co. Ltd. vs Ram Singh on 4 September, 2017
$~12 & 21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 4th September, 2017
+ MAC APPEAL No. 647/2016
BHARTI AXA GEN. INS. CO. LTD. ..... Appellant
Through: Mohd. Mustafa, Adv.
versus
RAM SINGH ..... Respondent
Through: Mr. S.N. Parashar, Adv. with
respondent in person.
+ MAC APPEAL No. 1073/2016
RAM SINGH ..... Appellant
Through: Mr. S.N. Parashar, Adv. with
appellant in person.
versus
BHARTI AXA GEN. INS. CO. LTD. ..... Respondent
Through: Mohd. Mustafa, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Ram Singh (first respondent in MAC Appeal No. 647/2016 and
appellant in cross appeal MAC Appeal No.1073/2016), statedly
earning his livelihood as a cook, then aged about 49 years, suffered
injuries in motor vehicular accident that occurred on 28.12.2013 at
about 8.40 p.m. in front of Hotel Lalit, ahead of Sarai Toll Tax, Delhi
Faridabad road due to negligent driving of truck trolla bearing
registration no. HR 38L 5725, admittedly insured against third party
risk with Bharti Axa General Insurance Company Ltd. (appellant in
MAC appeal no. 647/2016 and first respondent in MAC Appeal No.
1073/2016). He instituted accident claim case (petition no. 91/2014)
on 25.03.2014 seeking compensation pleading that he had been
rendered permanently disabled, both his lower limbs having been
amputated, his disability as per the opinion (Ex.PW1/3) of a board of
doctors of Pandit Madan Mohan Malviya hospital being to the extent
of 88 % in relation to the said lower limbs.
2. The tribunal, after inquiry, by judgment dated 21.04.2016,
upheld the claim for compensation on the basis of finding that the said
vehicle was driven negligently by its driver Suresh Kumar (a
respondent in these appeals), the vehicle being registered in the name
of M/s Saru Frieght Corporation (another respondent in these appeals)
and being insured against third party risk with the aforementioned
insurance company. The finding on the issue of negligence has
attained finality as it was not challenged by any of the affected parties.
3. The tribunal awarded compensation in the total sum of Rs.
21,12,300/-, which includes loss of future income and Rs. 32,300/-
towards medical expenses. The future income loss has been computed
on the basis of functional disability and the non- pecuniary awards of
damages under the heads of pain & suffering, enjoyment of life have
been added.
4. The insurance company has come up in appeal questioning the
computation of loss of future earnings due to disability on the ground
that the evidence about the income at Rs. 10,000/- per month should
not have been accepted merely on the oral word of the claimant who
appeared as his own witness (PW-1). The claimant, on the other hand,
by his appeal, submits that the compensation awarded is grossly
inadequate, the fact that the treatment is continuing and further that his
right upper limb is also affected, it having been fractured on account
of crush injuries suffered, temporarily repaired with the help of a
fixator, the fact that it requires further surgical procedure having not
been borne in mind.
5. During the course of hearing, however, it was brought out that
while assessing the permanent disability, the board of doctors of
Pandit Madan Mohan Malviya Hospital of the Govt. of NCT of Delhi,
issuing disability certificate on 25.11.2014 (Ex.PW-1/3) has not even
considered the evaluation of the injury to the right upper limb.
Against the above backdrop, the learned counsel for the claimant, on
instructions, submitted that the matter would require further inquiry in
the course of which further medical opinion would need to be
obtained, the injuries suffered and the effect thereto having not yet
stabilized. The counsel, thus, submitted that the impugned judgment
may be set aside and for the matter may be remitted to the tribunal for
further inquiry and fresh assessment of the compensation, taking into
account all the necessary elements. On being asked, the counsel for
the insurer responded by submitting that he leaves the matter to the
discretion of the Court.
6. In the foregoing facts and circumstances, the request of the
claimant appears to be proper deserving to be accepted. At the same
time, the request for some arrangement to be made such that the
claimant is not deprived of the basic source of sustenance during the
course of further inquiry will also have to be borne in mind.
7. In view of the above, the impugned judgment is set aside. The
matter is remitted to the tribunal for further inquiry. During the
proceedings which are consequently to recommence before the
tribunal, it shall make arrangement for full and proper evaluation to
be made of the state of handicap suffered by the claimant in the
aforementioned accident which needless to add, would also include
the evaluation of the injury to the right upper limb. The claimant will
be granted opportunity to lead further evidence followed by similar
opportunity to lead evidence in rebuttal being given to the parties that
contest.
8. The parties shall appear before the tribunal for further
proceedings on 16th October, 2017.
9. By order dated 22.08.2016 in MAC Appeal no. 647/2016, the
insurance company had been directed to deposit the awarded amount
with upto date interest with UCO Bank Delhi High Court Branch,
where it was directed to be kept in fixed deposit for the period
specified. By subsequent order dated 08.09.2016, while retaining Rs.
25,00,000/- in eleven fixed deposit receipts for different periods, the
balance was allowed to be released to the claimant by transferring it
into his saving banks account. Having regard to the afore-mentioned
condition of the claimant, it is directed that he shall be entitled to
periodic interest against the amounts which have been kept in fixed
deposits receipts for his sustenance till the tribunal takes a fresh
decision in the matter. On conclusion of further inquiry, the tribunal
will not only grant appropriate award of compensation but also issue
necessary directions with regard to the amounts kept in fixed deposit
receipts in terms of these directions.
10. The appeals are disposed of in above terms.
11. The statutory amount deposited by the insurer in its appeal shall
be refunded.
R.K.GAUBA, J.
SEPTEMBER 04, 2017
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