Delhi High Court
New India Assurance Company Ltd vs Rakesh Kumar & Ors on 7 September, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:7th September, 2017
15
+ MAC.APP. 628/2015 and C.M. Appl. 14136/2015
NEW INDIA ASSURANCE COMPANY LTD ..... Appellant
Through: Mr. Vijay Singh and Mr. Abhishek
Kumar, Advocates
versus
RAKESH KUMAR & ORS ..... Respondents
Through: Mr. S.N. Parashar, Advocate
16
+ MAC.APP. 7/2017
RAKESH KUMAR ..... Appellant
Through: Mr. S.N. Parashar, Advocate
versus
RAM SUMIRAN & ORS ..... Respondents
Through: Mr. Vijay Singh and Mr. Abhishek
Kumar, Advocates for New Indian
Assurance Co. Ltd.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The Claims Tribunal has awarded compensation of Rs.14,52,044/- to
the injured, Rakesh Kumar, which is under challenge in these appeals. The
insurance company is seeking reduction of the award amount whereas the
claimant/injured is seeking enhancement of the award amount.
2. On 27th October, 2009, Rakesh Kumar was driving car bearing
No.CH-04E-0362 while going from Dulhera Village to Mundka Village
when he met with an accident with truck No.HR-38J-8589 on main road
Ghewra More, Delhi, which resulted in grievous injuries to the claimant.
3. The claimant suffered fracture of neck right humerus fracture right
acetabulum and other grievous injuries all parts of body. The claimant was
initially taken to Sanjay Gandhi Memorial Hospital, Mongolpuri, Delhi from
where he was shifted to Jaipur Golden Hospital on 28 th October, 2009,
where he was operated for fracture of neck humer right on 29th November,
2009. The claimant was discharged on 01st November, 2009. He was again
admitted in Sonia Hospital, Nangloi on 15th November, 2009 where he was
operated for right acetabulum along with right neck humerus and was
discharged on 19th November, 2009. The claimant was again admitted in
Sonia Hospital from 09th December, 2009 to 18th December, 2009 and again
from 11th January, 2010 to 27th January, 2010. The claimant was admitted in
AIIMS from 27th March, 2010 to 17th April, 2010, where he was operated for
right acetabulum; right girdle stone arthroplasty; implant removal;
debridement and antitibial bead application on 29 th March, 2010. The
claimant was again admitted in AIIMS from 11th January, 2011 to 27th
January, 2011 where he was operated for right hip replacement as he was
unable to bear any weight on the right lower limb and was unable to lift his
arm. The injuries suffered by the claimant resulted in 72% permanent
disability with respect to right upper and lower limb as per the disability
certificate Ex.PW-1/1.
4. The injured was working as a driver with Azad Singh and company.
It was claimed that the injured was earning Rs.13,000/- per month.
However, in the absence of any documentary proof of income, the Claims
Tribunal took the minimum wages of Rs.4401/-, added 50% towards future
prospects and applied the multiplier of 13 to compute the loss of earning
capacity as Rs.5,14,917/- by taking the loss of functional disability as 50%.
The Claims Tribunal awarded Rs.4,56,503/- for treatment expenses,
Rs.2,00,000/- for pain and sufferings, Rs.75,000/- for conveyance, attendant
charges and special diet, Rs.5,14,917/- for loss of future earning capacity,
Rs.1,00,000/- for loss of enjoyment of life and Rs.1,05,624/- for loss of
income during treatment. The total compensation awarded is Rs.14,52,044/-.
5. Learned counsel for the insurance company urged at the time of
hearing that the future prospects of 50% should not be taken into
consideration for computing the loss of earning capacity. It is further
submitted that the compensation of Rs.2 lakh awarded under the heads of
pain and suffering is on a higher side. It is further submitted that the
compensation of loss of income during the treatment should not be awarded
since the compensation has been awarded for loss of earning capacity.
6. Learned counsel for the injured urged at the time of hearing that the
injured was earning Rs.13,000/- per month which should be taken into
consideration for computing the loss of earning capacity instead of minimum
wages. It is further submitted that the functional disability of injured be
taken as 72% instead of 50% as per the disability certificate. It is further
submitted that the multiplier of 15 is applicable as the injured was aged 40
years. Learned counsel for the appellant seeks enhancement of rate of
interest from 8% per annum to 9% per annum.
7. Injured Rakesh Kumar is present in Court and his condition has been
seen. This Court is of the view that the functional disability of the injured
has been rightly taken as 50%.
8. The Claims Tribunal has taken the minimum wages as income for
computing loss earning capacity whereas the income of the injured was
proved by the salary certificate (Ex.PW1/10) in which his income has been
stated as Rs.13,000/- per month. This Court is of the view that the income of
the injured should have been taken as Rs.13,000/- per month instead of
minimum wages as the income was proved by the salary certificate and
therefore, the income of injured is taken as Rs.13,000/- per month. However,
the addition of future prospects of 50% is set aside.
9. The multiplier applied by the Claims Tribunal is on the lower side as
the appropriate multiplier at the age of 40 is 15. The multiplier is, therefore,
enhanced from 14 to 15.
10. Taking the income of the injured as Rs.13,000/- as per the salary
certificate, applying the multiplier of 15 and taking the functional disability
as 50%, the loss of earning capacity is computed as Rs.11,70,000/-. The
compensation awarded under the head of loss of income during treatment is
included in the loss of earning capacity and, therefore, not awarded
separately. The compensation awarded under the heads of pain and suffering
and other non-pecuniary heads is fair and reasonable. The injured is entitled
to total compensation of Rs.20,01,504/- (Rs.11,70,000/- + Rs.4,56,503/- +
Rs.2,00,000/- + Rs.75,000/- + Rs.1,00,000/-). The Claims Tribunal has
awarded interest @ 8% which is on a lower side. Considering that this Court
is constantly awarding compensation @ 9% per annum, the rate of interest
is, therefore, enhanced from 8% to 9%.
11. Both the appeals are partially allowed. The compensation amount is
enhanced from Rs.14,52,044/- to Rs.20,01,504/- along with interest @ 9%
per annum from the date of filing of claim petition i.e. 5th July, 2011 till
realisation. The pending application is disposed of.
12. Respondent no.1 is entitled to Rs. 20,01,504/- along with interest @
9% per annum from 5th July, 2011.
13. New India Assurance Company Ltd is directed to deposit the
enhanced award amount along with upto date interest within six weeks from
today.
14. Rakesh Kumar shall remain present in Court on the next date of
hearing along with passbook of their savings bank account near the place of
his residence as well as PAN Card and Aadhaar Card.
15. List for disbursement on 16th November, 2017.
16. The statutory amount be refunded back to the insurance company.
17. Copy of this judgment be given dasti to counsel for the parties under
the signature of the Court Master.
SEPTEMBER 07, 2017 J.R. MIDHA, J.
rsk
