Full Text
HIGH COURT OF DELHI
Date of Decision: 31.01.2023
SHRIRAM GENERAL INSURANCE CO LTD ..... Appellant
Through: Mr.Sameer Nandwani with Ms.Nikita Sharma, Advs.
Through: Mr.Ajit Rajput with Mr.Ajeet Kumar, Mr.Gopi Chand, Advs.
SANTOSH KUMAR SINGH ..... Appellant
Through: Mr.Ajit Rajput with Mr.Ajeet Kumar, Mr.Gopi Chand, Advs.
LTD) ..... Respondent
Through: Mr.Sameer Nandwani with Ms.Nikita Sharma, Advs for R-3.
JUDGMENT
1. The present two appeals under Section 173 of the Motor Vehicles Act (the Act), assail the award dated 25.09.2022 passed by learned Motor Accident Claims Tribunal, Dwarka Courts, New Delhi. While the insurer by way of MAC appeal no. 15/2018 assails the quantum of compensation awarded towards loss of future prospects to the claimant as also the compensation towards the loss of income suffered by the claimant during the period when he was stated to be incapable of discharging any duty, the claimant by way of MAC 377/2018 seeks enhancement of compensation awarded towards loss of future prospects.
2. The brief factual matrix as emerging from the record shows that on 23.06.2015, when the claimant Sh.Santosh Kumar Singh was travelling to Haridwar in a car bearing registration no. DL-1C-3990, the said car met with an accident near police post Gang Nahar, Police Station-Bahadrabad, Uttaranchal. It is the common case of the parties that the vehicle involved in the accident was a ‘Max Pick Up’ bearing registration no. UA-08D-9793. An FIR was promptly registered at the Police Station Bahadrabad, Haridwar against the respondent no.2. The claimant, who suffered grievous injuries in the accident and a permanent disability of 57% in his upper and lower limbs, filed a claim petition under Section 166/140 of the Act.
3. The learned Tribunal, after considering the evidence before it, came to the conclusion that the claimant suffered injuries caused by respondent no.2, who was driving the aforesaid Max Pick Up insured by Shriram General Insurance Company Ltd, the appellant in MAC APP 15/2018. Taking into account that the claimant was working in a travel agency, namely Yatra.com and had suffered 57% permanent disability due to the accident, the learned Tribunal came to a conclusion that his functional disability was in fact 29%. Compensation towards loss of income was accordingly calculated on the basis of this functional disability of 29% and an award for a sum of Rs. 36,47,940/- was passed, which amount included a sum of Rs. 28,14,912/towards disability and future loss of earning.
4. Being aggrieved with the compensation towards disability and future loss of earning, both the insurer and the claimant have preferred the present appeals.
5. In support of the appeal, learned counsel for the claimant submits that the learned Tribunal has failed to appreciate that the earning capacity of the claimant had reduced considerably on account of the 57% permanent disabilities suffered by him in his upper and lower limbs. The claimant was working as a Travel Agent, who, besides performing a desk job, was required to attend and interact with prospective customers and was thus required to move frequently. On account of this disability of 57%, the claimant is not in a position to carry out his job as effectively as he was performing earlier. He, thus, contends that the learned Tribunal had erred in treating the functional disability of the claimant as only 29%. He, therefore, prays that the compensation granted under the head ‘future loss of earning’ be suitably enhanced.
6. Per contra, Mr. Sameer Nandwani, learned counsel for the insurance company contends that the learned Tribunal failed to appreciate that despite the claimant suffering 57% permanent disability in his upper and lower limbs, his earning capacity has not been affected as he is continuing to work on the same position in Yatra.com as before. He submits that the claimant was performing a desk job which did not involve any movement and therefore, he is still able to efficiently discharge his duties as a Travel Agent. He therefore contends that the learned Tribunal erred in granting him compensation towards future loss of income when his earning capacity has not been affected at all. He, therefore, prays that the impugned award, in so far as it grants compensation to the claimant towards loss of future earning be set aside.
7. Having noted the factual matrix and the rival submissions of the parties, it would be appropriate to first refer to the findings of the learned Tribunal qua the compensation granted under the head of loss of future earnings and functional disability. It would, therefore, be useful to refer to para 18-21 of the impugned judgment, which reads as under:- DISABILITY / FUNCTIONAL DISABILITY
FUTURE LOSS OF EARNING
21. In Case bearing No, 1349/16 titled as Santosh Kumar Singh Vs. Mohd. Irshad & Ors., taking into consideration that the injured has 29% permanent disability, therefore', he has incurred loss of future earning capacity. Since, injured was 35 years old at the time of accident and having permanent job, thus, he is entitled for future prospects of 50% over his income as per Saria Verma's Judgment, hence his income will be calculated as Rs.33,702 + 50% = Rs.50,553/- injured has 29% disability hence he has future loss of income rounded to Rs.14,661/- per month. Thus, injured is entitled for Rs.14,661 X 12 X 16 =Rs.28,14,912/- (Twenty eight lacs fourteen thousand nine hundred twelve only) towards the head 'Future Loss of Earning'.
8. As noted hereinabove, the plea of the insurer is that the claimant was performing a desk job and is still able to discharge his duties efficiently and, therefore, no compensation ought to have been granted to him under the head ‘future loss of earning’.
9. Even though this plea of the insurer appears to be attractive at first blush, this Court cannot lose sight of the harsh reality that a person, who is suffering from 57% disability will definitely suffer inconvenience and pain, not just in discharging his duties but in every walk of life, which will certainly reduce his productivity even in a desk job. I find that despite the claimant suffering from 57% permanent disability, the learned Tribunal has taken his functional disability only as 29%. This is perhaps because of the fact that the claimant is still able to move around, though with difficulty. I am therefore, unable to accept this plea of the insurer that merely because the claimant is still working on the same job, he has suffered no loss of future income. When the claimant is suffering from 57% permanent disability, his efficiency would have certainly reduced. I, therefore, find no merit in the appeal of the insurer, which is accordingly dismissed.
10. Now coming to the claimant’s plea that his functional disability ought to have also been considered as 57% as per his disability certificate. Having given my thoughtful consideration to this submission, I am regrettably not inclined to agree with the claimant. Even though, it is undisputed that he is suffering from 57% permanent disability, the fact remains that he is carrying out, primarily, a desk job. Even though, while discharging his duties, the claimant is required to interact with customers and it is not as if he cannot move at all. In fact, it is the own case of the claimant that he cannot sit at a stretch for very long in one position and therefore requires to keep moving after regular intervals.
11. In view of this admitted position, I am of the considered view that the learned Tribunal has rightly taken the claimant’s functional disability to have been reduced by 28%. I, therefore, find no infirmity with the finding of the learned Tribunal qua the percentage of the claimant’s functional disability or qua the compensation granted towards loss of future earnings
12. In the light of the aforesaid, both the appeals along with pending applications, being meritless are, accordingly dismissed. As the insurer has already deposited the entire awarded amount with the learned Tribunal, and taking into account the fact that more than ten years have elapsed since the date of the accident, the learned Tribunal is directed to release the entire balance amount, with accrued interest thereon, in favour of the claimant, within a period of eight weeks from today. However, in case the amount received by the claimant falls short of the amount payable to him under the impugned award, the insurer will pay the differential amount to him within a period of eight weeks.
13. The statutory amount of Rs.25,000/- along with accrued interest be refunded to the appellant in MAC.APP. 15/2018.
JUDGE JANUARY 31, 2023