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MAC APP. No. 562/2013 Page 1 of 4
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27th April, 2016
MAC.APP. 562/2013
RELIANCE GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr. A. K. Soni, Adv.
versus
KAMAL VERMA & ORS
..... Respondents
Through: Mr. R. P. Tomar, Adv. for R-1.
CORAM: HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL): 1. The first respondent (the claimant), then aged about 22 years, earning his livelihood by running the business of art gallery and paying income tax, suffered injuries and permanent disability on account of a motor vehicular accident that occurred on 30.09.2009 involving negligent driving of truck bearing registration no.HR-38L-0947 (the offending vehicle), admittedly insured against third party risk with the appellant/insurance company (the insurer). As a result of injuries suffered, his left leg above knee up-to lower one third thigh left had to be amputated. The claimant having been examined by a medical board constituted by Deen Dayal Upadhyay hospital of the Government of NCT, Delhi, has been certified (Ex.P-1/Q) to have
MAC APP. No. 562/2013 Page 2 of 4
suffered permanent disability on this account, it having been assessed to the extent of 80% in relation to the said lower limb. The tribunal held inquiry into his claim petition (S-89/10/09) which was instituted on 28.10.2009 invoking Section 166 of the Motor Vehicles Act, 1988 (the MV Act) and, by judgment dated 25.03.2013, which was corrected by order dated 30.05.2013, awarded total compensation of `21,55,592/- with interest at the rate of seven & half percent (7.5%) per annum, the said amount inclusive of `11,99,752/- calculated as loss of earning capacity in future which is the bone of contention raised in the present appeal by the insurer that has been called upon to satisfy the award. 2. The tribunal by the impugned judgment concluded functional disability to be to the tune of 50%. It held that the monthly loss of income is `4272.62, on the basis of income tax return for the assessment year 2008- 2009, however, after adding the element of 30% of future prospects of increase. This, in the submission of the insurer, was erroneous. 3. 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 SCC166.
MAC APP. No. 562/2013 Page 3 of 4
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 12.1.2015, 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. This applies to the matter at hand because the claimant here pleaded about gainful employment at a fixed salary and has not led any evidence showing the salary was subject to any periodic increase. 5. The learned counsel for the claimant fairly concedes that since the claimant is self employed person, the loss of future capacity has to be calculated without adding the element of future prospects. In this view, the total award payable on account of loss of future earning capacity is calculated as (4272.62x12x18) `9,22,885.92, rounded off to `9,22,886/-. Therefore, the compensation awarded by the tribunal has to be reduced by (11,99,752-9,22,886) `2,76,866/-. Thus, the compensation awarded is reduced to (21,55,592-2,76,866) `18,78,726/-, rounded off to `18,80,000/-. 6. 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.
MAC APP. No. 562/2013 Page 4 of 4
The award is modified as above. 8. By order dated 05.07.2013, the appellant was directed to deposit the entire awarded amount up-to-date interest, out of which 60% was allowed to be released. 9. The Registrar General shall now recalculate the amount payable to the claimant in terms of award modified as above and release the same from out of the balance. If any excess has been deposited, the same shall be refunded. Conversely, if there is a shortfall, the insurer shall be duty bound to deposit the same with the tribunal within 30 days whereupon it shall be released to the claimant. 10. The statutory deposit, if made, shall be refunded. 11. The appeal is disposed of in above terms.
R.K. GAUBA (JUDGE) APRIL 27, 2016 ssc