Delhi High Court
Binay Kumar vs Riyazuddin Ansari & Ors. on 10 March, 2010
Author: J.R. Midha
11
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.No.336/2009
Date of Decision: 10th March, 2010
%
BINAY KUMAR ..... Appellant
Through : Mr. Chandra Prakash, Adv.
along with the appellant.
versus
RIYAZUDDIN ANSARI & ORS. ..... Respondents
Through : Mr. Neeraj Sharma, Adv.
for R-3.
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.35,200/- has been
awarded to him. The appellant seeks enhancement of the
award amount.
2. The accident dated 25th November, 2004 resulted in
grievous injuries to the appellant. The appellant was
standing at Shastri Park red light when he was hit by blue-
line bus bearing No.DL-1PB-5295. The bus hit the appellant
and dragged him for about 10 to 15 ft. The appellant
suffered fracture in his right leg and multiple ruptures in the
left leg. The appellant was initially taken to GTB Hospital
from where he was shifted to Sant Parmanand Hospital. The
appellant remained under treatment for three months. The
appellant suffered permanent disability of 8% in respect of
left lower limb due to post traumatic stiffness left ankle with
scarring left leg as per disability certificate - Ex.PX-1. The
appellant is a practicing lawyer. The appellant joined the
practice in 2003. At the time of the accident, the appellant
was working as a junior lawyer with M/s Amar Associates
drawing Rs.8,000/- per month as retainership fee which was
proved by the certificate - Ex.PW1/27 . The appellant
appeared in the witness box and deposed that he was also
earning Rs.2,000/- from his private practice and his total
income at the time of the accident was Rs.10,000/- per
month.
3. The learned Tribunal disregarded the evidence of
income of the appellant and took minimum wages of
Rs.3,654.90 per month and awarded Rs.10,965/- towards loss
of income for three months. The learned Tribunal awarded
Rs.1,400/- towards conveyance, Rs.500/- towards special diet
and Rs.10,000/- towards pain and suffering. The total
compensation awarded is Rs.35,200/-.
4. The learned counsel for the appellant has urged the
following grounds at the time of hearing of this appeal:-
(i) The compensation for loss of earning capacity due
to permanent disability be awarded.
(ii) The compensation for loss of income during the
period of treatment of enhanced.
(iii) The compensation for conveyance and special
diet be enhanced.
(iv) The compensation be awarded for loss of
amenities of life and disfiguration.
5. The appellant was earning Rs.10,000/- per month at the
time of the accident out of which the appellant was receiving
Rs.8,000/- per month from M/s Amar Assciates which was
proved vide Ex.PW1/27 and he was earning Rs.2,000/- from
his own practice. However, the Claims Tribunal disregarded
the certificate - Ex.PW1/27 on the ground that the proprietor
of M/s Amar Associates did not appear in the witness box
along with the salary records and PW-2 had joined the firm
after the relevant period. The reasoning given by the
learned Tribunal does not inspire confidence. This is
certainly not a case of invoking the minimum wages for a
daily wager in respect of a practicing lawyer. If the Claims
Tribunal had any doubt about Ex.-PW1/27, the Claims
Tribunal could have conducted further inquiry to ascertain
the truth or in the alternative, the compensation should have
been computed on the basis of earning capacity of a
practicing lawyer but to invoke the minimum wages of a daily
wager for a practicing lawyer is not justified. In the facts and
circumstances of this case, the income of the appellant at
the time of the accident is taken to be Rs.8,000/- per month
and Rs.24,000/- (Rs.8,000 x 3) is awarded as compensation
for three months during which the appellant could not attend
to his work.
6. The Claims Tribunal has not awarded any compensation
for loss of earning capacity due to permanent disability. The
appellant has suffered permanent disability of 8% in respect
of left lower limb. The Claims Tribunal has disregarded the
disability certificate - Ex.PX-1 on the ground that it was
issued after four years of the accident. The disability
certificate has been issued by the Medical Board constituted
by the Medical Superintendent of Safdarjung Hospital. There
is no reason to disregard the said disability certificate. Again
if the Claims Tribunal had any doubt, it could have conducted
an inquiry to ascertain why there was delay in issuing the
disability certificate. The finding of the Claims Tribunal in
this regard is set aside. The disability certificate - Ex.PX-1 of
the appellant is accepted. The disability of 8% in respect of
left lower limb is taken to be 5% in respect of whole body.
The loss of earning capacity is also taken to be 5%. The loss
of earning capacity due to the functional disability of 5% is
computed to be Rs.86,400/- [(Rs.8,000 x 12 x 18) x 5%].
7. The Claims Tribunal has awarded Rs.1,400/- towards
conveyance and Rs.500/- towards special diet which are on a
lower side considering the injuries suffered by the appellant
and the period of treatment. The compensation for
conveyance is enhanced from Rs.1,400/- to Rs.5,000/- and
the compensation for special diet is enhanced from Rs.500/-
to Rs.2,500/-.
8. The compensation of Rs.10,000/- for pain and agony is
upheld. No compensation has been awarded for loss of
amenities of life and disfiguration. Rs.10,000/- is awarded for
loss of amenities of life and Rs.5,000/- is awarded for
disfiguration. The appellant is entitled to total compensation
of Rs.1,42,900/- (Rs.86,400 + Rs.24,000 + Rs.5,000 +
Rs.2,500 + Rs.10,000 + Rs.10,000 + Rs.5,000).
9. The appeal is allowed and the award amount is
enhanced from Rs.35,200/- to Rs.1,42,900/-. The learned
Tribunal has awarded interest @12% per annum which is not
disturbed on the original award amount of Rs.35,200/-.
However, on the enhanced award amount, the rate of
interest shall be @7.5% per annum from the date of filing of
the claim petition up to the date of notice of deposit under
Order XXI Rule 1 of the Code of Civil Procedure.
10. The enhanced award amount along with interest be
deposited by respondent No.3 with UCO Bank A/c Binay
Kumar, Delhi High Court Branch through Mr. M.M. Tandon,
Member-Retail Team, UCO Bank Zonal, Parliament Street,
New Delhi (Mobile No. 09310356400) within a period of 30
days.
11. Upon the aforesaid deposit being made, UCO Bank is
directed to release the same to the appellant by transferring
the said amount to his Saving Bank Account without any
restriction of fixed deposit.
12. Copy of the order be given dasti to counsel for both the
parties under signatures of the Court Master.
13. Copy of this order be also sent to UCO Bank through Mr.
M.M. Tandon, Member-Retail Team, UCO Bank Zonal,
Parliament Street, New Delhi (Mobile No. 09310356400)
under the signature of Court Master.
J.R. MIDHA, J
MARCH 10, 2010
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