Kamesh Kumar Gunupur vs National Insurance Co.Ltd. & Ors
2010 Latest Caselaw 1336 Del

17
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +   MAC.APP.No. 258/2008

                               Date of Decision: 10th March, 2010
%


      KAMESH KUMAR GUNUPUR            ..... Appellant
                  Through Mr. Vijay Kumar, Advocate.

                     versus

      NATIONAL INSURANCE CO.LTD. & ORS .....Respondents
                    Through Mr. S.L. Gupta, Advocate.



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)

CM No.5920/2008 (Delay)

1. For the reasons stated in the application, the delay of 8

days in filing the appeal is condoned.

2. CM stands disposed of.

MAC.APP.No.258/2008

1. The learned counsel for the appellant submits that

there is no dispute on valid insurance. In that view of the

matter, notice to respondent Nos. 2 and 3 is dispensed with.

2. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.1,71,846/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 13th July, 2001 resulted in grievous

injuries to the appellant. The appellant was travelling in TSR

bearing No.DL-1RC-3639 on Shaheed Jeet Singh Marg, near

Qutub Institutional Area, when car bearing No. DL 3CS 1983

hit the TSR due to which the TSR over turned and the

appellant suffered grievous injuries. The appellant suffered

three fractures on his thigh, knee and ankle, namely,

subtrochanteril fracture leg fermur, lateral condyle fracture

left tibia and fracture tibial plafond with dislocation left ankle.

The appellant underwent six surgeries and a plate was

inserted for joining the fractures. The medical record of the

appellant's treatment was proved as Ex.PW-1/C1 to

Ex.PW-1/C26. The appellant incurred Rs.33,946/- on his

treatment which was proved by bills Ex.PW-1/C-1.

3. The appellant was working as Senior

Executive - Strategic Planning Whirlpool and at the time of

the accident drawing a salary of Rs.19,300/- proved by salary

certificate Ex.PW-1/D-1. The appellant remained on leave for

four months and twenty one days from 14 th July, 2001 to 4th

December, 2001, proved by employer's certificate Ex.PW-

1/D-1.

4. The appellant suffered 16% permanent disability in

respect of left lower limb resulting to healed fracture left

femur with fracture lateral tibial condyle left with dislocation

left ankle proved by disability certificate Ex.PA. The appellant

cannot bend his legs due to the injuries and limps while

walking.

5. The learned Tribunal has awarded Rs.33,946 towards

the medical expenses, Rs. 57,900/- towards loss of income

for three months, Rs.15,000/- towards conveyance,

Rs.15,000/- towards special diet and Rs.50,000/- towards

pain and sufferings. The total compensation is awarded

Rs.1,71,846/-.

6. The learned counsel for the appellant has urged

following grounds at the time of hearing of this appeal:-

(i) The compensation be awarded for loss of earning

capacity due to permanent disability.

(ii) The compensation for loss of income be awarded

for four months and twenty one days.

(iii) The compensation for conveyance be enhanced.

(iv) The compensation be awarded for loss of

amenities of life, loss of disfiguration and loss of

reduction of matrimonial prospects.

7. The appellant has suffered permanent disability to the

extent of 16%. The appellant is present in Court and his

injuries have been perused. The loss of earning capacity of

the appellant is taken to be 10%. The appellant was earning

Rs.19,300/- at the time of accident and Rs.1,300/- is

deducted towards Income Tax. The appellant had a

permanent employment and, therefore, 50% is added

towards future prospects. The income of the appellant is

taken as Rs.27,000/-(Rs.18,000 + 50% of Rs.18,000). The

appellant was aged 25 years at the time of the accident and

by applying the multiplier of 18 and taking 10% of the same,

the loss of earning capacity of the appellant is computed to

be Rs.5,83,200/- [10% of (Rs.27,000 x 12 x 18)].

8. The appellant remained on leave for four months and

twenty one days, as per the leave certificate. However, the

learned Tribunal has awarded loss of income for three

months only. The loss of income due to leave is awarded to

the appellant for four months and twenty one days, which is

computed as Rs.1,26,900/- [(Rs.27,000 x 4) + (Rs.27,000 x

21/30)]

9. The learned Tribunal has awarded Rs.15,000/- towards

conveyance. The appellant remained under treatment for six

months and underwent six surgeries. The permanent

disability in respect of left lower limb has resulted in limping.

The conveyance is therefore enhanced from Rs.15,000/- to

Rs.20,000/-.

10. The learned Tribunal has awarded Rs.50,000/- towards

loss of pain and suffering, which is reasonable. However, no

compensation is awarded for loss of amenities of life,

disfiguration and reduction of matrimonial prospects.

Rs.30,000/- is awarded towards loss of amenities of life and

Rs.20,000/- towards disfiguration and Rs.15,000/- towards

reduction of matrimonial prospects.

11. The appellant is entitled to total compensation of

Rs.8,94,046/- as per the break-up given hereunder:-

   (i)    Compensation          for   :   Rs.33,946/-
          medical expenses.
   (ii)   Compensation towards        :   Rs.15,000/-
          special diet.
   (iii)  Compensation towards        :   Rs.20,000/-
          conveyance.
   (iv) Compensation towards          :   Rs.1,26,900/-
          loss of income due to
          leave.
   (v)    Compensation towards        :   Rs.5,83,200/-
          loss     of     earning
          capacity      due      to
          permanent disability.
   (vi) Compensation towards          :   Rs.50,000/-
          pain and suffering.
   (vii) Compensation towards         :   Rs.30,000/-
          loss of amenities of life
   (viii) Compensation towards        :   Rs.20,000/-
          disfiguration.
   (ix) Compensation towards          :   Rs.15,000/-
          reduction of
          matrimonial prospects.
                            Total     :   Rs.8,94,046/-

12. The appeal is allowed and the award amount is

enhanced from Rs.1,71,846/- to Rs.8,94,046/-. The learned

Tribunal has awarded interest @ 9%per annum which is not

disturbed on the original award amount of Rs.1,71,846/-.

However, on the enhanced award amount, the rate of

interest shall be @7.5% per annum from the date of filing of

the petition till realization.

13. The enhanced award amount along with interest be

deposited by respondent No.1 with UCO Bank, Delhi High

Court Branch A/c Kamesh Kumar Gunupar by means of a

cheque through Mr.M.M. Tandon, Member-Retail Team, UCO

Bank Zonal, Parliament Street, New Delhi (Mobile No.

09310356400) within 45 days.

14. Upon the enhanced award amount being deposited,

UCO Bank is directed to release 10% of the amount to the

appellant by transferring the same to his Savings Bank

Account. The remaining amount be kept in the fixed

deposits in the name of appellant in the following manner:

(i) Fixed deposit in respect of 10% of the award

amount for a period of six months.

(ii) Fixed deposit in respect of 10% of the award

amount for a period of one year.

(iii) Fixed deposit in respect of 10% of the award

amount for a period of one and a half years.

(iv) Fixed deposit in respect of 10% of the award

amount for a period of two years.

(v) Fixed deposit in respect of 10% of the award

amount for a period of two and a half years.

(vi) Fixed deposit in respect of 10% of the award

amount for a period of three years.

(vii) Fixed deposit in respect of 10% of the award

amount for a period of three and a half years.

(viii) Fixed deposit in respect of 10% of the award

amount for a period of four years.

(ix) Fixed deposit in respect of 10% of the award

amount for a period of four and a half years.

15. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of the appellant.

16. Withdrawal from the aforesaid account shall be

permitted to the appellant after due verification and the

Bank shall issue photo Identity Card to the appellant to

facilitate identity.

17. No cheque book be issued to the appellant without the

permission of this Court.

18. The Bank shall issue Fixed Deposit Pass Book instead of

the FDRs to the appellant and the maturity amount of the

FDRs be automatically credited to the Saving Bank Account

of the beneficiary at the end of the FDR.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

21. On the request of the appellant, the Bank shall transfer

the Savings Account to any other branch of UCO Bank

according to the convenience of the appellant.

22. The appellant 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 (Mobile No.

09310356400).

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

parties under signatures of the Court Master.

24. 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 MARCH 10, 2010 HL