Pradeep Kumar vs National Insurance Co.Ltd. & Ors.
2008 Latest Caselaw 1794 Del

*      HIGH COURT OF DELHI : NEW DELHI

                  MAC App. No.839 of 2005

%            Judgment reserved on: 11th September, 2008

             Judgment delivered on: 1st October, 2008


Pradeep Kumar,
S/o Sh.Shyam Sunder Swarup
R/o H.No.411, Sector-14,
Dasundra-201012, Ghaziabad.               ....Appellant

                    Through: Mr.Anuj Soni, Adv. with
                             Appellant in person.

                             Versus

1.National Insurance Com Ltd.
Division No.10, Flat No.101-106
1st Floor, B.M.C. House,
Connaught Place,
New Delhi-1.

2.Parkash, S/o Sh.Ajit Singh
R/o VPO Mundka,
New Delhi-110041.

3.D.T.C.
Genral Manager,
I.P.Estate, New Delhi                  ....Respondents.

                    Through:Ms.Shanta Devi Raman, Adv.
                            for respondent No. 1.
                            Ms.Saroj Bidawat for
                            respondent No.3.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA


MAC App.No.839 of 2005                            Page 1 of 13
 1. Whether the Reporters of local papers may
   be allowed to see the judgment?                           Yes

2. To be referred to Reporter or not?                        Yes

3. Whether the judgment should be reported
   in the Digest?                                            Yes

V.B.Gupta, J.

Present appeal under section 173 of the Motor

Vehicles Act, 1988 (for short as "Act") for

enhancement of compensation has been filed by the

appellant, who is the injured in this case.

2. Vide impugned judgment dated 12th July, 2005

passed by Sh. Dharmesh Sharma, Judge, MACT, Delhi

(for short as „Tribunal‟), a sum of Rs. 13,46,360/- was

awarded as compensation to the appellant along with

interest @ 6% p.a. from the date of filing of the petition

till realization.

3. Brief facts of this case are that on 12th June, 2004

at about 1.30 p.m., the appellant was travelling in DTC

bus bearing No.DL-1P-B-6517 and was going from

Peera Garhi, Delhi to Bahadur Garh. When the bus

reached Bahadur Garh Bus Stand and the appellant

was in the process of alighting from the bus,

respondent No.2, Prakash who is the driver, started

the bus in a rash and negligent manner. As a result

thereof, appellant fell down and his right arm was

crushed by the tyre of the bus. Due to the impact, the

appellant also sustained head injuries and abrasions on

other parts of the body. He was hospitalized and later

on his right arm had to be amputated by the doctors.

Appellant was 45 years of age at the time of accident

and amputation of his right hand has resulted in

permanent disablement and left him and his family on

the verge of vagrancy.

4. The bus in question is owned by respondent No.3-

DTC and it is insured with respondent No.1-National

Insurance Company.

5. Respondents 2 & 3 driver and owner, contested

the claim petition before the Tribunal and in the joint

written statement, inter alia, took preliminary

objection that there is no liability on them to pay

compensation, since the vehicle was insured with

respondent No.1.

6. On merits, it has been denied that the appellant

was travelling in the bus or he fell down from the bus

due to any rash and negligent driving on the part of

the bus driver. In fact, the bus was being driven by

bus driver in a proper manner and when the bus was

entering the bus terminal of Bahadur Garh, then all of

a sudden one passenger tried to get down from the

moving bus and though the driver of the bus shouted,

but the passenger neither stopped nor listened to him

and fell down on the hard surface of the road.

7. Respondent No.1-National Insurance Company

has admitted the factum of insurance.

8. It has been contended by the learned counsel for

the appellant that the appellant placed two original

Disability certificates on record, which was issued by

Govt. Hospital Jhajjar and another certificate issued by

Sir Ganga Ram Hospital. The Tribunal failed to

appreciate that appellant‟s left hand was not working

since his childhood and after suffering the disability

after the accident, his disability has gone up to 100%

and thus, the Tribunal wrongly assessed the

appellant‟s disability to be 80%.

9. Other contention is that, the Tribunal failed to

consider that after the severe injuries and amputation,

a person would not have been able to do any work

during the period of the treatment. The treatment of

the appellant continued for about six months from the

Government as well as private doctor and appellant

was forced to leave the job with no other option after

his amputation, and appellant lost his present job of

sampling developer after amputation.

10. It is further contended on behalf of the appellant

that he had to employ a servant for his basic amenity

after the accident but on this account, the Tribunal had

given no compensation.

11. Lastly, the Tribunal ought to have considered the

future prospects of the appellant.

12. On the other hand, it is contended by the learned

counsel for National Insurance Company that the

Tribunal has rightly taken the permanent disability as

80% keeping in view the Workmen‟s Compensation

Act, 1923. Further, the doctors who had issued

Permanent Disability Certificate have not been

examined.

13. Regarding future prospects, the accountant of the

company where appellant was working had appeared

in the witness box as PW2, but during the course of his

statement, he did not state even a single word about

future prospects. Moreover, the Tribunal has awarded

a substantial amount of Rs.2 Lacs towards permanent

disability and this takes care of future prospects, if

any, of the appellant.

14. Lastly, it is contended that compensation awarded

by the Tribunal is just and fair and no ground for

enhancement has been made out.

15. This is not in dispute that the appellant fell down

while the offending bus was suddenly started by its

driver. There is no denying the fact, that the grievous

injuries resultant in amputation of the right hand, are

directly attributable to the rash, negligent and

wrongful driving of the bus, on the part of its driver.

16. The certificate issued by Delhi Nursing Home,

Bahadur Garh and perusal of MLC Ex.CW1/A shows

that the claimant sustained crush injuries on his right

arm as well as hand apart from Lacerated wound 2cms

x 1cm over medial side of the left elbow and deep

abrasions 5cms x 5cm over left temporal region.

17. The discharge summary of Ganga Ram Hospital

reveals that the right arm above the elbow, was

amputated on 12.06.04 and then the claimant was

medically treated for stump closure.

18. The Tribunal, on the loss of earning capacity of

the appellant has held that;

"As per the Disability Certificate issued by the Office of medical Supdt. Civil Surgeon, Jhajjar, Ex CW1/E, the traumatic amputation of the right arm above elbow with partial weakness of left hand has been certified to be 89% permanent disability. It is indeed unfortunate to observe that claimant has been suffering from partial weakness of his left hand since his childhood and the unfortunate mishap resulted in amputation of his dominant hand. The disability for the purposes of deciding compensation could only be reckoned in regard to loss of right hand only. The claimant was about 45 years of age at the time of accident and that makes multiplier of 13 years applicable as per Second Schedule to the Act. As per Workmen‟s Compensation Act, 1923, Schedule 1, amputation below shoulder with stump less than 20.32 Cms from tip of acromion is prescribed to be 80% loss of earning capacity."

The Tribunal further held; "Ex facie, the amputation of right hand above the elbow has resulted in the loss of dominant right hand, in the face of the fact that left hand is partially weak, the disability has curtailed the enjoyment of the

essential amenities of life to the claimant. I, therefore, award a sum of Rs.2,00,000/- to the claimant towards permanent disability and amenities of life."

19. Thus, the Tribunal awarded compensation of

Rs.10,23,360/- for loss of earning capacity and

Rs.2,00,000/- for permanent disability.

20. As is clear from the facts of the case, the

appellant has become unfit for job due to this accident.

The appellant was employed as a workman in Sample

Development Work and engaged in developing,

redesigning and constructing the samples in the field

of artificial jewellery, glass weeds/bone and metal (i.e.

handicraft items) which are submitted by the

customers of the Company and it involved manual

functions.

21. The appellant had malfunctioning of his left hand

since birth, and this accident made him totally

dependent upon others.

22. The disability certificate on record shows that the

appellant has suffered 89% permanent disability due to

this accident.

23. The Tribunal has wrongly applied the Workmen‟s

compensation Act, 1923, as the present claim petition

has been filed under the Motor Vehicles Act, 1988.

Thus, the permanent disability as assessed by the

Doctor as 89%, ought to have been taken into

consideration by the Tribunal. Thus permanent

disability is taken as 89%, (rounded off to 90% for the

purpose of calculations).

24. The salary of the appellant is Rs.9,000/- p.m. as

per evidence. However, the Tribunal for reasons best

known to it has not included, House Rent Allowance,

while computing the monthly loss of income.

25. House Rent Allowance is not to be deducted from

the gross salary of the injured for ascertaining the

income, because the House Rent Allowance is part of

the salary of the victim-employee. Thus, House Rent

Allowance should be included in the monthly income of

the appellant.

26. Taking into consideration the loss of earning at

Rs.9,000/- p.m. and 90% permanent disability and

applying the multiplier of 13, total amount comes to

Rs.12,63,600/- (Rs.9,000/- x 12 x 13 x 90 / 100).

27. The Tribunal has awarded Rs.10,23,360/-, only on

this account, while the appellant is thus entitled to

additional compensation of Rs.2,40,240/- i.e.

(Rs.12,63,600 - Rs.10,23,360).

28. Regarding future prospects, the same cannot be

granted unless and until there is evidence to this effect

on record. There is no evidence on record to prove that

the victim was in a trade where he would have earned

more from time to time or he had special merit or

qualification or opportunities which would have led to

an improvement in his income.

29. Moreover, PW-2 who is the accountant of the

company where the appellant was working, had

appeared in the witness box, but he did not utter even

a single word about the future prospects of the

appellant.

30. In Bijoy Kumar Dugar v. Bidyadhar Dutta and

Ors., AIR 2006 SC 1255, the Apex court has

observed as under;

"The mere assertion of the claimants that the deceased would have earned more than Rs. 8,000/- to Rs. 10,000/- per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before the MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income."

31. Thus, the contention regarding future prospects

of the appellant is hereby, rejected.

32. In view of the above discussions, the award given

by the Tribunal is modified to the extent that appellant

is entitled to Rs2,40,240/- on account of permanent

disability and loss of earning capacity, which is just,

fair and equitable.

33. Keeping in view of the prevailing rate of interest,

the appellant is granted interest @ 8% per annum from

the date of filing of the claim petition i.e. 03.09.04 till

realization, on the enhanced amount of compensation.

34. Accordingly, the appeal of the appellant stands

allowed to the above extent.

35. No order as to costs.

36. Trial Court record be sent back.

1st October, 2008                    V.B.GUPTA, J.
Bisht