The New India Assurance Co. Ltd. vs Raja Ram & Anr.
2009 Latest Caselaw 3340 Del

26
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.175/2006

%                                    Date of decision: 25th August, 2009


      THE NEW INDIA ASSURANCE CO. LTD.         ..... Appellant
                    Through : Mr. Pankaj Seth, Adv.

                      versus

      RAJA RAM & ANR.                      ..... Respondents
                    Through : Mr. Nishan Shah, Adv.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may          YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?         YES

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

                               JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.4,00,000/- has been

awarded to claimant/respondent No.1.

2. The accident dated 9th March, 2001 resulted in 25%

disability to claimant/respondent No.1. The claimant suffered two

fractures i.e. the fracture of upper end of tibia on both left and

right side. The claimant was a rickshaw puller. The claimant is

unemployed after the accident as he is not in a position to pull

the rickshaw anymore. The learned Tribunal took the loss of

earning capacity to be 100% considering that the claimant is not

in a position to pull the rickshaw anymore. The loss of income of

Rs.3,64,056/- has been awarded to the claimant taking the

minimum wages into consideration and applying the multiplier of

11. Rs.35,000/- has been awarded towards non-pecuniary

compensation. No compensation has been awarded towards

medical expenditure, conveyance and special diet.

3. The appellant has challenged the impugned award on the

short ground that the earning capacity of the claimant should not

be taken to be 100% as the claimant can engage himself in some

other occupation and has some earning capacity. The learned

counsel for the appellant further submits that the claimant should

make some efforts to rehabilitate himself.

4. The claimant is present in the Court and his injuries have

been perused by this Court. In view of 25% disability suffered by

the claimant, he is not in a position to pull the rickshaw anymore

but he can certainly engage himself in some other occupation.

As such, the loss of earning capacity of the claimant is liable to

be reduced. However, reduction in loss of earning capacity will

not affect the ultimate award passed by the learned Tribunal

because the learned Tribunal has not taken into consideration the

effect of increase in minimum wages due to inflation and increase

in price index. It is well settled by the catena of judgments in the

cases of Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182,

Lekh Raj vs Suram Singh, 2007 ACJ 2165, National

Insurance Company Limited vs. Renu Devi III (2008) ACC

134 and UPSRTC vs. Munni Devi, MAC.APP.No.310/2007

decided on 28.07.2008 where it has been held that the Court

should take judicial notice of increase in minimum wages due to

inflation and increase in price index. The Court has taken the

view that the minimum wages get doubled over the period of 10

years and increase in minimum wages is not akin to future

prospects. It is also well settled that the claimant is entitled to

compensation towards medical expenditure, conveyance and

special diet which has not been awarded to him. It is also well

settled that compensation has to be awarded separately for pain

and suffering and for loss of amenities of life and considering

25% disability, the claimant is entitled to compensation of

Rs.35,000/- towards pain and suffering and Rs.35,000/- towards

loss of amenities of life. Thus, taking into consideration the

increase in minimum wages due to inflation and rise in price

index, the compensation for medical expenditure, conveyance

and special diet and compensation for loss of amenities of life,

the compensation of Rs.4,00,000/- awarded by the learned

Tribunal is fair and reasonable and needs no interference.

5. The learned counsel for the appellant submits that the

claimant has not filed any cross-objections and, therefore these

questions cannot be examined by this Court. Section 167 of the

Indian Evidence Act provides that the judgment of the Trial Court

is not liable to be set aside merely because the Trial Court has

taken some irrelevant evidence into consideration or has

excluded some relevant evidence, if after taking into

consideration what has been wrongly excluded or by excluding

what has been wrongly included, the result is the same. This

case has been squarely covered by Section 167 of the Indian

Evidence Act. The learned Tribunal wrongly took the loss of

earning capacity of the claimant to be 100% but at the same time

failed to award the compensation towards medical expenditure,

conveyance, special diet, loss of amenities of life as well as

increase in minimum wages due to inflation and rise in price

index. Taking all these facts into consideration the award passed

by the learned Tribunal is just, fair and reasonable.

6. For all the aforesaid reasons, the appeal is dismissed.

7. The appellant has deposited the entire award amount in

terms of the order dated 10th March, 2006 out of which 50%

award amount has been released to the claimant and the

remaining amount is lying with the Registrar General of this

Court.

8. The Registry is directed to release a sum of Rs.40,000/- to

the claimant/respondent. The cheque with respect to the

remaining amount be issued to UCO Bank, Delhi High Court

Branch with instructions to put the same in fixed deposit in the

name of the claimant for a period of five years on which monthly

interest be paid to him.

9. The interest on the aforesaid fixed deposit shall be paid

monthly by automatic credit of interest in the Savings Account of

claimant/respondent.

10. Withdrawal from the aforesaid account shall be permitted to

claimant/respondent after due verification and the Bank shall

issue photo Identity Card to claimant/respondent to facilitate

identity.

11. No cheque book be issued to claimant/respondent without

the permission of this Court.

12. The original Fixed Deposit Receipt shall be retained by the

Bank in the safe custody. However, the original Pass Book shall

be given to claimant/respondent along with the photocopy of the

FDR.

13. The original Fixed Deposit Receipt shall be handed over to

the claimant/respondent at the end of the fixed deposit period.

14. No loan, advance or withdrawal shall be allowed on the said

Fixed Deposit Receipt without the permission of this Court.

15. Half yearly statement of account be filed by the Bank in this

Court.

16. On the request of the claimant/respondent, the Bank shall

transfer the Savings Account to any other branch of UCO Bank in

Delhi according to the convenience of the claimant/respondent.

17. The claimant/respondent shall furnish all the relevant

documents for opening of the Saving Bank Account and Fixed

Deposit Account to Mr. M.M. Tandon, Member-Retail Team, UCO

Bank Zonal, Parliament Street, New Delhi.

10. Copy of the order be given dasti to counsel for both the

parties under the signatures of the Court Master.

19. Copy of this order be also sent to Mr. M.M. Tandon, Member-

Retail Team, UCO Bank Zonal, Parliament Street, New Delhi

(Mobile No. 09310356400) through the UCO Bank, High Court

Branch under the signature of Court Master.

J.R. MIDHA, J AUGUST 25, 2009/aj