New India Assurance Co Ltd. vs Sh. Yogesh Sharma & Ors

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 20th March, 2014

+                            MAC.APP. No.417/2011



NEW INDIA ASSURANCE CO LTD.                            ..... Appellant
                 Represented by:             Mr.Kanwal Chaudhary,
                                             Advocate.

                      Versus


SH. YOGESH SHARMA & ORS                                  ..... Respondents
                 Represented by:             Mr. Navneet Goyal, Advocate
                                             for Respondent No.1.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. Vide the present appeal, the appellant/Insurance Company has assailed the impugned award dated 11.01.2011, whereby the learned Tribunal awarded compensation for a sum of Rs.5,43,000/- with interest at the rate of 7.5 % per annum from the date of filing of the claim petition till realization of the amount.

2. Brief facts of the case are that on 17.07.2006 at about 5.45 AM, the respondent No.1 was travelling in Tempo bearing No.UP-14M-5265 and when it reached Press Enclave Road, it was hit by Truck bearing No.HR-

47A-2865, which was being reversed by respondent No.2 without giving any signal or indication in a rash and negligent manner, thereby causing damages to the Tempo and grievous injuries to the respondent No.1. He was removed to AIIMS.

3. Regarding the alleged accident, an FIR No. 845/2006, P.S. Malviya Nagar, under Sections 279/337 IPC was lodged against the respondent No.2.

4. Mr.Kanwal Chaudhary, learned counsel appearing on behalf of the appellant/Insurance Company submits that disability of the respondent No. 1 was assessed as 40% qua left lower limb, however, the learned Tribunal has considered the same as permanent disability qua the whole body.

5. Learned counsel submits that law is settled in the case of Raj Kumar Vs. Ajay Kumar and Anr. JT 2010 (13) SC 38, wherein it is held as under:-

"10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a MAC. Appeal No.417/2011 Page 2 of 5 claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."

6. Learned counsel further submits that the impugned award regarding assessing 40% permanent disability in relation to the whole body of the respondent No.1/injured may be set aside and the same may be reduced to 20% in view of the aforesaid dictum of Raj Kumar.

7. On the other hand, Mr. Navneet Goyal, learned counsel appearing on behalf of the respondent No.1/injured submits that the respondent No. 1 received injuries on forehead, lacerated wound on right eyebrow and bleeding wound on left eyebrow. His leg was also crushed resulted into fractures in both bones exposing muscles. The broken bone pieces came protruding out of the crushed muscles. He was removed to AIIMS, where MLC was prepared and then he remained admitted in Uttam Hospital, in Vijay Nagar, Ghaziabad for the period from 17.07.2006 to 21.07.2006. During hospitalization, the wounds were cleaned and stitched. The broken bones were straightened and external fixator was affixed on his leg. Again he remained admitted in Lok Nayak Hospital from 22.08.2006 to 25.10.2006. During that period, surgery and grafting was done. Thereafter, he remained admitted in the same hospital from 04.05.2007 to 09.05.2007.

8. Ld. Counsel submits that the injured was driver. On the date of accident, he was 32 years of age. Therefore, keeping in view the age, avocation, injuries sustained, and the operations and treatment undergone, therefore, the Ld. Tribunal has rightly assessed 40% permanent disability in relation to whole body.

9. I have heard the learned counsel for the parties and perused the record.

10. Keeping in view the condition of the respondent No.1/injured, the learned Tribunal has assessed the permanent disability as 40% in relation to whole body.

11. In view of the facts noted above, I am not inclined to interfere in award passed by the Ld. Tribunal.

12. Accordingly, instant appeal is dismissed.

13. Consequently, the Registry of this Court is directed to release the statutory amount in favour of the appellant/Insurance Company and the balance compensation in favour of the respondent No.1/injured in terms of the award dated 11.01.2011.

SURESH KAIT, J.

MARCH 20, 2014 sb MAC. Appeal No.417/2011 Page 5 of 5