Delhi High Court
Oriental Insurance Co. Ltd. vs Rajesh Sah & Ors. on 26 September, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 26th September, 2017
+ MAC APPEAL No. 83/2016 & CM No. 3061/2016 (stay)
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Adv.
versus
RAJESH SAH & ORS. ..... Respondents
Through: Mr. S.N. Parashar, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent had suffered injuries in a motor vehicular
accident that occurred on 01.12.2014 due to negligence of bus bearing
registration no. DL 1PC 2966, it admittedly being insured against third
party risk for the period in question with appellant insurance company
(insurer). On his accident claim case (suit no. 33/2015), the tribunal
held inquiry, and by judgment dated 23.10.2015 awarded
compensation of Rs. 28,07,000/- directing the insurer to pay with
interest @ 9% per annum, the said amount having been calculated
thus:-
S.No. Heads Compensation
1. Medicines & Medical treatment Rs.1,75,000/-
2. Pain & suffering Rs. 1,80,000/-
3. Loss of amenities of Life Rs. 80,000/-
4. Compensation towards disability Rs. 50,000/-
5. Conveyance Rs. 10,000/-
6. Special diet Rs. 5,000/-
7. Attendant charges Rs. 18,000/-
8. Loss of income Rs.22,89,000/-
Total Rs.28,07,000/-
2. The insurer by the appeal at hand takes exception to the
inclusion of loss of income due to disability with the element of future
prospects having been added.
3. It is noted that in absence of any cogent proof of income, the
tribunal went by minimum wages of an unskilled worker at Rs. 7,400/-
per month, it being converted into an annual income of Rs. 88,800/-.
It is also noted that the claimant was 27 years old at the relevant point
of time and on account of injuries sustained in the accident he has
been rendered visually impaired to the extent of 100%, his functional
disability having been accordingly assessed by the tribunal on the
basis of disability certificate (Ex.PW-1/6).
4. In the case reported as Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121, Supreme Court, inter-alia,
ruled that the element of future prospects of increase in income will
not be granted in cases where the deceased was "self employed" or
was working on a "fixed salary". Though this view was affirmed by a
bench of three Hon'ble Judges in Reshma Kumari & Ors. Vs. Madan
Mohan & Anr., (2013) 9 SCC 65, on account of divergence of views,
as arising from the ruling in Rajesh & Ors. vs. Rajbir & Ors., (2013) 9
SCC 54, the issue was later referred to a larger bench, inter-alia, by
order dated 02.07.2014 in National Insurance Company Ltd. vs.
Pushpa & Ors., (2015) 9 SCC 166.
5. Against the above backdrop, by judgment dated 22.01.2016
passed in MAC Appeal No. 956/2012 (Sunil Kumar v. Pyar Mohd.),
this Court has found it proper to follow the view taken earlier by a
learned single judge in MAC Appeal No. 189/2014 (HDFC Ergo
General Insurance Co. Ltd. v. Smt. Lalta Devi & Ors.) decided on
12.01.2015, presently taking the decision in Reshma Kumari (Supra)
as the binding precedent, till such time the law on the subject of future
prospects for those who are "self-employed" or engaged in gainful
employment at a "fixed salary" is clarified by a larger bench of the
Supreme Court.
6. Since there was no proof of regular income muchless of
progressive rise therein, the element of future prospects is kept out and
loss of earnings due to disability in future is recomputed as (88,800 x
17) Rs 15,09,600/-, rounded off to Rs. 15,10,000/-.
7. It was, however, pointed out by the counsel for the claimant that
the compensation under the non-pecuniary heads of damages of pain
& suffering and loss of amenities of life granted by the tribunal are
inadequate. It is also noted that there is no provision made for future
medical expenditure which would be necessary to be awarded in the
present case.
8. Following the dispensation in similarly placed case of
Shahzama vs. Rakesh Kumar & Anr.(MAC Appeal No. 517/2010)
decided on 20th September, 2017, the awards of Rs. 2,00,000/- each on
account of loss of amenities of life, on one hand, and pain & suffering,
on the other, besides Rs. 50,000/- towards future medical expenditure
are granted. Adding the other components of compensation awarded
by the tribunal, the total compensation in the present case comes to
(1,75,000 + 2,00,000 + 2,00,000 + 50,000 + 10,000 + 5,000 + 18,000
+ 50,000 + 15,10,000) Rs. 22,18,000/- (Twenty Two Lakhs Eighteen
Thousand Only). The award is modified accordingly. It shall carry
interest @ 9% (nine percent) as levied by the tribunal.
9. By order dated 29.01.2016, the insurance company had been
directed to deposit the entire awarded amount with interest and out of
the same 70% (seventy percent) was allowed to be released to the
claimants. The tribunal shall now calculate the amount payable in
terms of the modified award and release the balance accordingly to the
claimant and refunding the excess to the insurance company.
10. The statutory amount shall be refunded to the appellant.
11. The appeal is disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 26, 2017
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