Subhash vs National Insurance Co. Ltd. & Ors.
2011 Latest Caselaw 4176 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                       MAC. APP. 30 of 2009

                                  Reserved on: 19th August, 2011
                             Pronounced on: 26th August, 2011

SUBHASH                                            ...... Appellant

                        Through:    None for the appellant.

                              Versus

NATIONAL INSURANCE CO. LTD. & ORS.             ...... Respondents

                        Through:    Mr. Pradeep Gaur, Advocate
                                    for the respondent/Insurance
                                    company.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   No
2.     To be referred to the Reporter or not ?        No
3.     Whether the judgment should be reported
       in the Digest ?                                No

M.L. MEHTA, J.

1. The appellant was injured in a road accident which took

place on 18.04.2001. He was travelling in a vehicle bearing

registration No. HR - 26 M-7520 being driven by its driver Jitender.

On the way from Rohtak to Delhi, the driver gave lift to a person

named Kapoor Singh. The offending vehicle was allegedly being

driven by the driver at a very high speed and in a rash and

negligent manner. The driver lost control of the vehicle and hit a

tractor trolley which was parked on the road. The appellant

sustained serious injuries and allegedly suffered 100 per cent

permanent disability with his backbone damaged. Kapoor Singh,

however, escaped. The injured were removed to Rohtak hospital.

The appellant filed claim petition which was disposed of by

learned P.O., MACT vide impugned judgment and award dated

15.07.2008. By virtue of this award, the Tribunal awarded

compensation of a sum of Rs. 10,11,032/- which included

statutory interim compensation of Rs. 25,000/- already awarded

to the appellant. Since the offending vehicle was insured with

respondent National Insurance Company; it was directed to pay

the awarded compensation with interest @7% per annum from

the date of filing of the claim petition till its realization. In default

of payment of the same within 30 days, it was to be paid with

interest @12% per annum. The amount awarded was made up of

Rs. 1,50,000/- on account of pain and suffering and continued

permanent disability, Rs. 4,61,032/- on account of expenses

towards medical treatment, Rs. 25,000/- towards conveyance

and special diet, Rs. 2,75,000/- on account of permanent disability

and loss of income and Rs. 1,00,000/- on account of loss of

enjoyment and amenities of life and marriage prospects. The

appellant has challenged the impugned award and contended the

awarded compensation to be on lower side. The grievance of the

appellant is that the Tribunal has failed to award adequate

compensation for future medical expenses; the compensation on

account of conveyance , special diet, permanent disability and

loss of income. Compensation on these counts was stated to be

on lower side. It is averred that the appellant had suffered 100%

disability which he had to suffer throughout his life and this has

affected his earning capacity

2. None appeared for the appellant on 12.08.2011 and on

19.08.2011 i.e. the last date of hearing despite pass over.

3. I have heard the arguments of learned counsel for the

respondent with liberty however granted to the appellant to file

brief written submissions if he so desired. No written synopsis

has so far been filed.

4. There is no dispute that the appellant met with an accident

and sustained injuries in the manner as noted above. The

appellant has placed on record disability certificate Ex. PW2/C

dated 29.06.2001 which has been issued by AIIMS, New Delhi.

This certificate has been brought in testimony of PW-2 Suresh

Kumar, nephew of the appellant. As per this certificate, the

appellant attended AIIMS as OPD patient and was diagnosed as

traumatic paraplegia with bowel and bladder involvement. It

represented appellant to be having 100 per cent permanent

physical impairment. The Ld. Tribunal has accepted this

certificate as correct without doing any further inquiry as regard

to its genuineness or even as regards to the functional or

economic disability of the appellant in the context of 100%

permanent physical impairment. It is trite law that 100%

permanent physical impairment in every case cannot be taken to

be 100% functional economy disability. It is functional and

economy disability which ultimately affects the earning capacity

of a person.

5. Keeping in view the nature of injury suffered by the

appellant and also his age, I am of the view that his functional

disability would be not more than 60%. If that fact is to be taken

into account, compensation on account of permanent disability,

loss of income, loss of enjoyment and amenities of life would be

lower than what has been awarded by the Tribunal. There is no

evidence, medical or otherwise, to show that there was any

disability suffered by the appellant which may affect his marriage

prospects or procreation potentiality. The compensation awarded

on account of conveyance and special diet is also quite

reasonable. I am not inclined to interfere with the compensation

as awarded by the Tribunal on account of pain and suffering,

permanent disability and loss of income.

6. In the totality of the facts and circumstances of the case,

the compensation awarded by the Tribunal is just and fair and

there is no reason to interfere with it.

7. The appeal has no merits and is hereby dismissed.

M.L. MEHTA (JUDGE) August 26, 2011 AWANISH