Reliance General Insurance Co. Ltd. vs Anil Patel and Others

G.P. Mittal, J.—The appeal is for reduction of compensation of Rs. 17,02,588/- awarded by the Motor Accident Claims Tribunal (the Claims Tribunal) in favour of Respondent No. 1 who suffered grievous injuries resulting in amputation of right leg below knee in a motor vehicular accident which occurred on 22.11.2008.

The compensation awarded by the Claims Tribunal is tabulated hereunder:

The compensation of Rs. 26,000/- awarded towards medical expenditure, Rs. 20,000/- towards special diet, Rs. 25,000/- towards conveyance charges and Rs. 23,076/- granted towards loss of income are not challenged by the Appellant Insurance Company.

It is urged by the learned counsel for the Appellant that the Claims Tribunal erred in making an addition of 50% towards future prospects while awarding compensation towards loss of earning capacity. The Claims Tribunal also erred in taking 90% towards functional disability instead of 49% disability. It is stated that the compensation awarded towards future medical expenses of Rs. 2,00,000/- is without any evidence. The compensation awarded towards loss of amenities and enjoyment in life is on the higher side in view of the fact that loss of earning capacity was granted more than 50%. It is stated that the award of counsel''s fee to the extent of Rs. 70,000/- was also not in consonance with the Delhi High Court Rules and Orders.

The appeal must succeed.

It was the case of the claimant before the Claims Tribunal that Respondent No. 1 was employed as a rickshaw puller. Although disability certificate was produced, but no doctor was examined to prove the disability certificate. However, in a case of rickshaw puller, amputation of right leg below knee would definitely result in substantial loss of earning capacity. In Raj Kumar Vs. Ajay Kumar and Another, (2011) ACJ 1 : (2011) 2 RCR(Civil) 101 : (2010) 12 SCALE 265 : (2011) 1 SCC 343 : (2011) 1 SCC(Cri) 1161 : (2011) 1 TAC 785 , the Supreme Court laid down that the Court must assess the functional disability and the possibility of an alternative employment. In the case of amputation of one leg below knee, there is some possibility of employment of a person such as an attendant with any organisation to record entry of the person. Still, in our country, an employer is always reluctant to employ a person with disability, particularly one with amputation of limb. In view of this, I am of the opinion that the loss of earning capacity ought to have been taken as 75% instead of 100% taken by the Claims Tribunal.

As far as addition towards future prospects is concerned, the question was dealt with by a three Judge Bench decision of the Supreme Court in Reshma Kumari and Others Vs. Madan Mohan and Another, (2013) 2 ACC 907 : (2013) ACJ 1253 : (2013) 4 AD 516 : (2013) 2 CTC 680 : (2013) 4 JT 362 : (2013) 2 PLR 750 : (2013) 2 RCR(Civil) 660 : (2013) 5 SCALE 160 : (2013) 9 SCC 65 and it was held that addition towards future prospects is to be made only when there is specific evidence in this regard. The question of grant of future prospects was dealt with by this Court at great length in HDFC Ergo General Insurance Co. Ltd. v. Smt. Lalta Devi and Ors. MAC APP No. 189/2014 decided on 12.01.2015, wherein it was held that the three Judge Bench decision in Reshma Kumari and Ors.(supra) shall be taken as a binding precedent. Thus, in the absence of any evidence of bright future prospects, no addition towards future prospects ought to have been made by the Claims Tribunal. The loss of earning capacity therefore, comes to Rs. 5,54,256/- (Rs. 3,849/- x 12 x 16 x 75%) instead of Rs. 11,08,512/- as granted by the Claims Tribunal.

In Raj Kumar(supra), the Supreme Court also went on to add that whenever any compensation for 50% or more towards loss of earning capacity is granted, the compensation towards loss of amenities and enjoyment in life should be nominal otherwise it will amount to duplication of the award of the compensation. The compensation of Rs. 1,50,000/- towards loss of amenities and enjoyment of life is therefore, liable to be reduced to Rs. 50,000/-.

The award of compensation of Rs. 2,00,000/- towards future medical expenses is without any evidence on the record. Since the injury had healed, Respondent No. 1 ought to have been awarded a nominal compensation for follow-up treatment for a couple of months or even for a year. Thus, in the absence of any evidence with regard to future medical expenses, a lumpsum compensation of Rs. 10,000/- could have been awarded instead of Rs. 2,00,000/- as granted by the Claims Tribunal. I accordingly, grant a sum of Rs. 10,000/- towards future medical expenses.

The overall compensation is recomputed as under:

The overall compensation thus, comes to Rs. 8,58,332/-.

The compensation thus, stands reduced by Rs. 8,44,256/-.

COUNSEL'' FEE:

As far as award of a sum of Rs. 70,000/- towards counsel''s fee is concerned, this Court in ICICI Lombard General Insurance Co. Ltd. v. Kanti Devi and Ors. MAC APP No. 645/2012 decided on 30.07.2012 had gone into the question of granting counsel''s fee and concluded in Para 32 as under:

"32. To sum up, it is directed:--

(i) The Claims Tribunal is empowered to award costs in a Claim Petition in terms of Section 35 read with Order XXA of the Code.

(ii) The Claims Tribunal is entitled to award the Counsel''s fee in accordance with Rule 1 read with Rule 1A and Rule 9 of Chapter 16 Volume I of the Rules extracted earlier.

(iii) In case of compromise/settlement of the claims, the Claims Tribunal is not entitled to go beyond the settlement reached between the parties. If the settlement does not provide for payment of any Counsel''s fee, it shall not be within the domain of the Claims Tribunal to award the Counsel''s fee.

(iv) If the compensation is awarded on the basis of DAR in pursuance of the legal offer made by the Insurer, the Claims Tribunal is not empowered to award any costs unless it forms part of the legal offer.

(v) The counsel fee can be directly paid to the counsel only when a specific agreement is filed and the Claimant requires payment of fee directly to the counsel because only then the Claimant would be liable to reimburse the fee or part thereof in case the award is set aside or varied.''''

It is thus, concluded that instead of awarding counsel''s fee, the claim petition ought to be allowed with costs and counsel''s fee be paid only in accordance with Rules 1, 1A and 9 of Chapter 16, Vol. I of the Delhi High Court Rules and Orders. Thus, award of compensation of Rs. 70,000/- towards counsel''s fee is not permissible.

The excess compensation of Rs. 8,44,256/- along with interest shall be refunded to the Appellant Insurance Company by Respondent No. 1.

Respondent No. 1 remained absent despite service through publication. Respondent No. 1 is directed to refund the excess sum received by him within a period of two months, failing which the Appellant Insurance Company will be entitled to interest @ 7% per annum.

The appeal is allowed in above terms.

Pending applications also stand disposed of.

Statutory amount, if any, deposited shall be refunded to the Appellant Insurance Company.