Reliance General Insurance Co Ltd vs Anil Patel & Ors
2020 Latest Caselaw 1142 Del

                          $~34
                          * IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                 Date of Decision: 19th February, 2020

                          +     MAC.APP. 974/2012

                                RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
                                             Through: Mr. Pankaj Seth, Advocate


                                                   versus


                                ANIL PATEL & ORS                                  ..... Respondents
                                              Through:          Mr. Mukesh Gupta, Advocate along
                                                                with respondent No.1 in person.

                                CORAM:
                                HON'BLE MR. JUSTICE J.R. MIDHA


                                                  J U D G M E N T (ORAL)

CM APPLs.10932-34/2019

1. On 22nd November, 2008, respondent No. 1 was loading his rickshaw with vegetables at Azadpur Mandi when he was hit by a truck no. HR -38-H- 1865 which resulted in grievous injuries to respondent No.1. Respondent No. 1 suffered 49% permanent disability due to the accident in question. Respondent No. 1 was aged 32 years at the time of the accident and was working as a rickshaw puller.

2. The Claims Tribunal awarded Rs.26,000/- towards medical bills and expenses, Rs.2 lakh towards future medical expenses, Rs.20,000/- towards special diet, Rs.25,000/- towards conveyance charges, Rs.23,076/- towards

Digitally Signed By:RAJENDER SINGH KARKI Signing Date:02.03.2020 12:21:22 loss of income, Rs.1,50,000/- towards pain and sufferings, Rs.1,50,000/- towards loss of amenities and enjoyment of life and Rs.11,08,512 towards loss of future income. Total compensation awarded is Rs.17,02,588/- along with interest @ 9% per annum.

3. The appellant challenged the award before this Court seeking reduction of the award amount. The notice of this appeal was issued to respondent No. 1 on 4th September, 2012 which was unserved whereupon fresh notices were repeatedly issued but the same were returned back with the report that respondent No. 1 was not residing at the given address. The appellant sought substituted service of respondent No.1 which was allowed and the summons were published in Jagat Kranti newspaper, Haryana Edition.

4. On 25th March, 2015, this Court heard the appeal in the absence of respondent No.1. This Court allowed the appeal and reduced the compensation amount from Rs. 17,02,588/- to Rs.8,58,332/-. This Court also set aside the lawyer's fees of Rs.70,000/-awarded by the Claims Tribunal. This Court reduced the compensation amount on two grounds, namely, the appellant was not entitled to the future prospects on minimum wages and therefore, the loss of earning capacity was reduced from Rs.11,08,512/- to Rs.5,54,256/-. This Court further held that respondent No.1 was not entitled to future medical expenses and the amount of Rs. 2,00,000/- was reduced to Rs.10,000/-.

5. In the meantime, respondent No.1 had already recovered the award amount from the appellant. The appellant therefore, initiated recovery proceedings to recover the excess award amount from respondent No.1.

6. Respondent No.1 has filed CM APPL.10932/2019 seeking setting

Digitally Signed By:RAJENDER SINGH KARKI Signing Date:02.03.2020 12:21:22 aside of the ex parte judgment dated 25th March, 2015 along with an application for condonation of delay.

7. Respondent No.1 is today present in Court along with his counsel and he submits that he was never served with the summons issued by this Court. It is submitted the respondent No.1 was residing at Bihar and his address is mentioned in the FIR before the Claims Tribunal. It is further submitted that respondent no. 1 had also filed his election card before the Claims Tribunal which contains his Bihar address. It is submitted that the appellant should have furnished the aforesaid address and the summons should have been issued at the given address. It is further submitted that respondent no. 1 came to know about these proceedings when the police officials contacted him in the execution proceedings initiated by the appellant.

8. Learned counsel for the appellant opposes the applications of respondent No.1 on the ground that delay has not been sufficiently explained.

9. This Court is satisfied that respondent No.1 has shown sufficient cause for non-appearance before this Court. It is on record that the summons issued to respondent No.1 by this Court at the Delhi address returned unserved with the report that respondent No.1 was not residing at the given address. The Bihar address of respondent No.1 was available in the FIR as well as the copy of the election card on record of the Claims Tribunal. In that view of the matter, there was no justification for appellant to have not furnished the Bihar address of respondent No.1 to this Court. Respondent No.1 is a permanent resident of Bihar whereas the summons were published in a Jagat Kranti newspaper, Haryana edition. The law with respect to the condonation of delay is well settled. Reference is made to the

Digitally Signed By:RAJENDER SINGH KARKI Signing Date:02.03.2020 12:21:22 Oriental Insurance Co. Ltd. v. Radha Devi, 2011 SCC OnLine Del 761 in which this Court summarized principles relating to condonation of delay laid down by the Apex Court.

10. Applying the well settled principles laid down in Oriental Insurance Co. Ltd. v. Radha Devi (supra), CM APPLs.10932/2019, 10933/2019, 10934/2019 are allowed and the judgment dated 25th March, 2015 is hereby set aside.

MAC.APP. 974/2012

11. Respondent No.1 is present in Court and his condition has been seen. He has suffered 49% permanent disability relating to amputation of left feet and is unable to stand. Respondent No.1 has produced the photograph of injured portion.

12. The appellant has challenged the impugned award on two grounds. First ground of challenge is that future prospects should not have been added while computing the loss of earning capacity. The law in this regard is well settled that respondent No.1 is entitled to addition of future prospects of 40% while computing the compensation. In that view of the matter, the future prospects of respondent no. 1 are reduced from 50% to 40%.

13. Second ground of challenge is that the functional disability of respondent no. 1 is on a higher side. The Claims Tribunal has taken the functional disability of respondent no. 1 as 90%. Considering the condition of respondent no. 1, present in Court, the functional disability has been rightly assessed by the Claims Tribunal as 90% and is hereby upheld.

14. The Claims Tribunal has awarded Rs.2 lakh towards future treatment. However, there is no proof of future treatment. In that view of the matter, the amount of Rs.2 lakh awarded towards the future treatment is hereby set

Digitally Signed By:RAJENDER SINGH KARKI Signing Date:02.03.2020 12:21:22 aside. The lawyer's fee awarded to respondent No.1 is also set aside.

15. The Claims Tribunal has not awarded compensation for disfiguration. This is a clear case in which respondent No.1 is totally disfigured and even unable to stand. Considering the disability of respondent No.1, Rs.2,77,361.92 is awarded for disfiguration, the compensation towards pain and sufferings is enhanced to Rs. Rs.2,00,000/- and the compensation towards loss of amenities and enjoyment of life is enhanced to Rs.2,00,000/-.

16. Taking the income of the deceased as Rs.3,849/- per month; adding 40% towards future prospects, applying the multiplier of 16 and taking the functional disability as 90%, the respondent no. 1 is entitled to loss of earning capacity of Rs.9,31,150.08. Adding Rs.23,076/- towards loss of income, Rs.26,000/- towards medical expenses, Rs.20,000/- towards special diet, Rs.25,000/- towards conveyance charges, Rs.2,00,000/- towards pain and sufferings, Rs.2,77,361.92 towards disfiguration, Rs.2,00,000/- towards loss of amenities and enjoyment of life, total compensation is computed as Rs.17,02,588/-.

17. Respondent No.1 is entitled to total compensation Rs.17,02,588/- along with interest at rate of 9% per annum from the date of filing of the petition. Respondent no. 1 has already recovered the entire compensation amount from the appellant.

18. The appeal is partially allowed and award of Rs.17,02,588/- is passed in favour of respondent No.1 against the appellant. Pending applications are disposed of.

19. The photograph of injured portion of respondent No.1 is annexed to this judgment as Annexure-'A'. However, the photograph shall not be uploaded on the website.

Digitally Signed By:RAJENDER SINGH KARKI Signing Date:02.03.2020 12:21:22

20. Copy of this judgment be given dasti to counsel for the parties under the signature of the Court Master.

J.R. MIDHA, J.

FEBRUARY 19, 2020 dk

Digitally Signed By:RAJENDER SINGH KARKI Signing Date:02.03.2020 12:21:22