UNITED INDIA INSURANCE COMPANY LTD Vs. VARUN AGGARWAL

JUDGEMENT

(1.) CM Nos. 183 -CII of 2014 For the reasons stated in the application, <FV>application is allowed</FV>. Delay of 18 days in filing the appeal is condoned.

(2.) THE appeal is on an issue of quantum at the instance of the Insurance Company which is aggrieved on the assessment made on three counts: i) the injured was a pillion rider and the Motor cyclist was himself a minor and the claim had been made only against the insured's vehicle which the motor cyclist dashed. It was a case of composite negligence and the claimant ought to have impleaded the motor cyclist also. ii) the disability assessed was due to loss of earning capacity and the court was not justified in awarding compensation, especially when the father of the claimant gave evidence that there were no special difficulties which the petitioner was facing except a stiffness at the back. iii) The Court had allowed for a prospect of increase in salary for a person who was only 17 years of age as though he was earning Rs. 7,000/ - and increase had also been made taking the notional income to be Rs. 11,850/ - and applying a multiplier of 18 after taking the loss of earning capacity at 10%. As regards the contention that since the Motor cyclist was a minor negligence must also be attributed to him and the motor cyclist must have also been impleaded as a party, I would find that so long as the claimant himself was not negligent he has a right to proceed against any one of the tort feasors. There is no compulsion for him to implead a joint tort feasor and therefore there is no error in the way the petition was filed. As regards the contention that the Court could not have provided for a prospect of future increase while determining the loss of earning capacity, I must observe that the subject of provision for future prospects is still in a state of flux with decisions of the Supreme Court prevaricating: Reshma Kumari v. Madan Mohan : 2013 8 SCC 54reaffirming the dispensation in Sarla Verma v. Delhi Road Transport Corporation reported in : (2009) 6 SC 121 and looking for definite proof of prospect of increase while Rajesh and others v. Rajbir and others : 2013 ACJ 1403 (SC) making a prospect of future increase as invariably the rule. I will therefore not fault the Tribunal in adopting a scheme as contemplated in Rajesh's case (supra) and proceed to determine an average income possible even for a minor at Rs. 11850/ -. This is so only because it is not as if, the minor was being awarded compensation at this rate as a total loss but the Court has provided only for 10% of the same namely Rs. 1085/ - as resultant loss and adopting a multiplier of 18 that conforms to Sarla Verma's case (supra), the Tribunal has assessed the compensation. I will find nothing wrong in the Court assessing as loss of earning capacity in a situation where the injury is in the lumbar region (L -1) and the doctor has certified that the disability was permanent. A stiffness in back which can impair a person's movement for rest of life was bound to affect his earning capacity as resultant to stiffness and court was competent to award loss of earning capacity even apart from loss due to pain and suffering. Raj Kumar v. Ajay Kumar : 2011 ACJ 1 details the manner of assessment of compensation for injuries and it sets out that the Court would be competent to assess compensation on pain and suffering, compensation for disability and compensation for loss of earning capacity. Each of them is a distinct head. In this case I would find that even if it were to be assumed that the court had committed an error on the wrong side by taking the average income as Rs. 11,850/ -, the additional assessment that was done was more than compensated by what it failed to provide for, namely, a loss of amenities of life. The percentage of loss of disability has to do with the loss of amenities for life which is a distinct head of claim as held in N. Suresh v. Yusuf Shariff : 2012 11 SCC 281 I will therefore find no reason to interfere with the decision.