Delhi High Court
United India Insurance Company ... vs Zile Singh & Ors. on 27 September, 2017
$~R-279
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th September, 2017
+ MAC APPEAL NO.861/2010
UNITED INDIA INSURANCE COMPANY LIMITD
......Appellant
Through: Mr. Sameer Nandwani,
Advocate
Versus
ZILE SINGH & ORS. ..... Respondents
Through: Mr. Anshuman Bal, Advocate
for R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent (the claimant) had instituted accident claim
case (Suit No.533/2008) on 29.04.2008, inter alia, against the
appellant insurance company (insurer) on the averments that on
12.03.2008 while boarding the bus bearing registration No.DL-1P-
2052 (the bus) at about 5:30 p.m., he had suffered injuries as the driver
of the bus (second respondent) had started it with a jerk making him
lose balance and consequently falling on the road getting crushed
under the wheels of the bus. The bus, admittedly belonged to Delhi
Transport Corporation (DTC), the third respondent, and was
concededly insured against third party risk for the period in question
with the appellant.
2. The tribunal held inquiry and, by judgment dated 31.08.2010,
upheld the case for compensation holding the bus driver responsible
for the mishap. It awarded compensation in the sum of Rs.8,13,467/-
and directed the insurer to pay the same to the claimant with interest
@ 7.5% per annum, the said amount inclusive of Rs.6,07,947/-
calculated towards loss of earning capacity, this on the basis of finding
that the claimant has been rendered permanently disabled, his
functional disability having been assessed to the extent of 35% and,
for such purposes, the multiplier of 9 having been applied, taking into
fact that the claimant on the relevant date was 57 years old.
3. The insurer, by the appeal at hand, questions the above
mentioned award on the grounds that the claimant being an employee
of DTC, could have claimed compensation under Employees'
Compensation Act, 1923 and that since he has instead chosen to claim
the same under the Motor Vehicles Act, 1988, the calculation of
compensation will still have to be made in terms of dispensation under
Employees' Compensation Act, 1923. It is submitted that there was
no actual loss of earnings as the evidence showed that the claimant
had continued to be in the employment of DTC notwithstanding the
disability suffered. It is also submitted that the medical expenses were
wrongly included in the award in the sum of Rs.35,520/- since the
same were reimbursable by the employer.
4. To say the least, all the three above mentioned contentions are
found to be unfair and unjust. The claimant had shown by positive
evidence the medical expenditure incurred. It was his wish to have it
included in the award of compensation rather than claim it by way of
reimbursement. The possibility of reimbursement does not mean the
insurer may seek discount on such basis. As pointed out by the
counsel on the other side, the claimant was not boarding the bus in the
course of his employment with DTC or for discharge of his official
duty in such employment. He was boarding it as an ordinary citizen to
undertake the journey on the route on which the bus was plying.
Therefore, the reference to Employees' Compensation Act, 1923 is
improper.
5. Even if the fact of the claimant having continued in the same
employment, despite disability suffered, till the age of 60 years were
to be accepted, the loss of future income due to disability at the age of
60 years would require to be computed with the multiplier of 9 only.
Thus, the above consideration will not have any effect on the
computation of compensation.
6. The appeal is found wholly devoid of substance and is
dismissed with costs of Rs.25,000/- to be paid in favour of Delhi High
Court Legal Services Committee. For this, the statutory deposit shall
stand forfeited to be made over to the said authority.
7. By order dated 20.12.2010, the insurance company had been
directed to deposit the awarded amount with interest. By subsequent
order dated 18.05.2011, fifty per cent (50%) was allowed to be
released to the claimant. The registry shall now release the balance to
the claimant from the amount which was retained in fixed deposit in
terms of the impugned judgment.
8. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 27, 2017
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