Full Judgment Text
$~2 & 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of Decision: 26 April, 2016
+ MAC.APP. 1142/2011 & CM no. 23034/2011
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Ms. Shantha Devi Raman, Adv.
versus
PRAVEEN SHARMA ..... Respondent
Through: Mr. S. N. Parashar, Adv.
AND
+ MAC.APP. 854/2013
SH PRAVEEN SHARMA & ORS ..... Appellant
Through: Mr. S. N. Parashar, Adv.
versus
NATIONAL INSURANCE CO LTD ..... Respondents
Through: Ms. Shantha Devi Raman, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Praveen Sharma (appellant in MAC appeal no.854/2013) suffered
injuries in a motor vehicular accident that occurred on 03.02.2008 at about
MAC APP. No. 1142/2011 & 854/2013 Page 1 of 5
02:20 PM within the jurisdiction of police station M. S. Park on account of
negligent driving of car bearing registration no.DL-7B-9335 (the offending
vehicle) admittedly insured against third party risk for the period in question
with National Insurance Co. Ltd. (appellant in MAC appeal no.1142/2011).
He instituted a claim case (MACT suit no.166/2008) on 21.04.2008 seeking
compensation under Sections 140 and 166 of the Motor Vehicles Act (the
MV Act) impleading the insurance company (insurer), the driver and owner
respectively of the offending vehicle as respondents. The tribunal held
inquiry and on that basis upheld the case that the accident had occurred due
to negligent driving of the offending vehicle. It quantified the compensation
in the sum of ` 5,47,800/- which includes certain medical expenses and loss
of future income on account of disability, directing the insurer to pay with
interest at the rate of seven & half percent (7.5%) per annum from the date
of filing of the petition till realization.
2. The insurer, by its appeal (MAC Appeal no.1142/2011), questions the
calculation of ` 1,56,545/- in the award (para 27 of the impugned judgment)
on the ground that the said amount has already been received by
reimbursement under medi-claim policy by the claimant. The learned
counsel for the claimant at the hearing fairly conceded that the said amount
cannot be claimed again in the claim petition under Section 166 of the Motor
Vehicles Act, 1988 (the MV Act). Thus, amount of ` 1,56,545/- will have to
be discounted.
3. By his appeal (MAC appeal no.854/2013), Praveen Sharma (the
claimant) submits that his disability certificate (Ex.PW4/A) showed the
disability to be permanent on account of locomotor impairment of left lower
MAC APP. No. 1142/2011 & 854/2013 Page 2 of 5
limb which has been assessed to the extent of 26% in relation to the said part
of the body. His grievances are that the tribunal while calculating loss of
future income reduced the functional disability to the extent of 13%. He
also submits that the tribunal rejected the evidence in the form of income tax
return (ITR) submitted by him for the assessment years (AY) 2005-2006,
2006-2007 and 2007-2008 (Ex.PW1/6 collectively) and instead computed
the loss of income by assuming income notionally at 4393, it being
`
minimum wages payable to a graduate at the relevant point of time.
4. The contention of the claimant with regard to functional disability
cannot be accepted. The evidence shows that he was engaged as an
employee in the shop of his mother and was receiving salary in lieu of
services rendered. The income tax returns relied upon by him further show
that he was earning certain further amounts from private tutorial classes
taken by him. In the facts and circumstances, having regard to the nature of
injuries and disability suffered, functional disability assessed to the tune of
13% in relation to the whole body cannot be faulted.
5. But, there is merit in the grievances that the income has been wrongly
assessed. The income tax returns referred to above were submitted before
the date of accident. It is not a case where ITR only of one year has been
relied upon. ITRs of the three years, one after the other, show progressive
rise in the income. There is no reasons why the income declared in the ITR
(for AY 2007-2008) ` 1,65,800/- should not have been accepted as good
proof of his earnings. The loss of income for period of ten months when the
claimant had remained unable to work for gain on account of prolonged
treatment was calculated by the tribunal on the basis of income of ` 4,393/-.
MAC APP. No. 1142/2011 & 854/2013 Page 3 of 5
It needs to be recalculated on the annual income of (1,65,800x10/12)
` 1,38,166/-, rounded off to ` 1,38,200/-. Since the tribunal had awarded
43,930/- under this head, it needs to be increased by (1,38,200-43,930)
`
` 94,270/-.
6. Thus, the loss of future earning on account of functional disability to
the extent of 13% must be granted. On the multiplier of 16 (the age of the
claimant on the relevant date was 33 years), it is computed as
(1,65,800x13/100x16) ` 3,44,864/-. Since the tribunal had calculated the
loss of future earnings in the sum of 1,09,648/-, the award is to be
`
increased by (3,44,864-1,09,648) ` 2,35,216/-. After discounting the amount
of ` 1,56,545, the net comes to (2,35,216-1,56,545) ` 78671/-. The total
compensation payable in the case, thus, computes as to
(5,47,800+78,671+94,270) ` 7,20,741/-, rounded off to ` 7,21,000/-.
7. Following the consistent view taken by this court [see judgment dated
22.02.2016 in MAC.APP. 165/2011 Oriental Insurance Co Ltd v. Sangeeta
Devi & Ors .], the rate of interest is increased to 9% per annum from the date
of filing of the petition till realization.
8. By order dated 04.01.2012 (in MAC appeal no.1142/2011), the
insurance company had been directed to deposit the entire awarded amount
with interest with the Registrar General within the period specified and out
of the same ` 3,00,000/- with proportionate interest was allowed to be
released to the claimant, balance kept in fixed deposit receipt for a period of
one years with periodic renewal. The balance shall also now be released to
the claimant. The insurance company is directed to deposit the remainder of
MAC APP. No. 1142/2011 & 854/2013 Page 4 of 5
its liability under modified award with proportionate interest whereupon the
same shall also be released to the claimant.
9. The statutory amount, if made, by the insurer shall be refunded.
10. The appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
APRIL 26, 2016
ssc
MAC APP. No. 1142/2011 & 854/2013 Page 5 of 5