Sh. Dharmendra @ Dharmendra Kumar ... vs Sh. Krishna Kumar @ Kalu & Others
2011 Latest Caselaw 3445 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 21.07.2011

+            MAC APPEAL No. 469/2010

SH. DHARMENDRA @ DHARMENDRA KUMAR @ ALOK
          .                           ...........Appellant
                 Through: Mr.K.K. Dubey, Advocate.

                  Versus

SH. KRISHNA KUMAR @ KALU & OTHERS
                                              ..........Respondents
                         Through:   Ms. Shantha Devi Raman,
                                    Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

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

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

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the Award dated 20.04.2010 vide

which compensation in the sum of `3,55,000/- along with interest

@ 7.5% per annum had been granted in favour of the claimants.

2 The appellant is the claimant/injured himself. Claim petition

had been filed under Sections 166 & 140 of the Motor Vehicle Act

(hereinafter referred to as the MV Act). On the intervening night

of 23/24-11.2008, the appellant while going to his house in a TSR

which was being driven by the driver in a rash and negligent

manner rammed into a Maruti Car as a result of which the

appellant sustained grievous injuries. FIR No. 307/2008 under

Sections 279/337 IPC was registered at Police Station Civil Lines.

The appellant was 32 years of age. Oral and documentary

evidence was led; award in the aforestated amount was awarded

in favour of the appellant.

3 This appeal has been filed by the appellant claiming

enhancement of the award amount on five counts. His contention

is that the minimum wages of `3,683/- had been taken into

account as his earning when there was an admitted proof that he

was getting `6,000/- per month and he had proved his salary

certificate Ex. PW-1/22 on record. The minimum wages criteria

could not have been applied to him. It has secondly been

contended that the future prospects have been illegally ignored;

capacity of the injured to work in the future has been reduced

substantially and this is clear from the medical certificate showing

a permanent disability of 70% because of the fractures which he

had suffered on his right leg; even on date he can only walk with

the crutches. The appellant was entitled to future prospects. It is

next contended that the permanent disability as per medical

certificate as evidenced is 70% but it has been reduced to 35% by

the Tribunal for no cogent reason. Next contention is that no

amount has been granted under the head of 'loss of amenities for

life' which was the entitlement of the appellant he having suffered

a permanent disability. It has lastly been contended that the loss

of earning has been granted for a period of six months only when

there was evidence to the effect that he remained at home for a

period of one year. On all these counts, the award amount is liable

to be enhanced.

4 Arguments have been refuted. It is submitted that the award

amount calls for no interference.

5 Record shows that the victim is a 33 years of age; he was

working as a doorman under Vinay Service; in his claim petition

he had clearly asserted that he was getting a salary of `200/- per

day substantiating his submission that he was thus a daily wager;

it is also not the case of the appellant that he had any appointment

letter or any other document to verify this fact that he was at a

fixed salary basis with Vinay Service; he had no salary slip or

identity card with him; the Tribunal in these circumstances had

rejected the salary certificate Ex.PW-1/22 evidencing his monthly

salary of `6,000/-; contention was rightly noted that from the

assertion of the claimant himself he was a daily wager; even

otherwise it could not be presumed that he was on duty everyday;

in these circumstances, by applying the minimum wages criteria,

the monthly salary had rightly been computed at ` 3,683/-; on this

count the Award suffers from no infirmity.

6 The victim was a doorman even as per his own showing; his

right leg had suffered two fractures pursuant to which a 70%

disability had been recorded in the disability certificate issued by

Hindu Rao Hospital Ex. P-6 showing a 70% of the right lower limb;

however after the period of surgery and follow up treatment, the

victim was fit to continue his normal life. In these circumstances,

the functional disability certificate assessed at 35% qua the whole

body was rightly assessed as it was not the case of the appellant

that his job required him to be standing on his legs all the time as

a result of which his functional disability had been effected. The

Tribunal while computing 'loss of dependency' has granted him

compensation under the head of 'loss of earning capacity'. The

compensation awarded under this head was calculated as follows:-

`3,700/-X12X16X35/100= `2,48,640/-

Disability of 35% for the future years has been considered.

7 In JT 2010 (13) SC 38 Raj Kumar Vs. Ajay Kumar & another

relying upon the law relating to compensation awarded in the case

of permanent disability as held in the case of Arvind Kumar

Mishra Vs. New India Assurance Co. Ltd. JT 2010 (10) SC 254 and

Yadava Kumar Vs. D.M. National Insurance Co. Ltd. JT 2010 (9)

SC 91 the formula for assessment of compensation payable in a

case of permanent disability had been laid down with reference to

three illustrations as contained in para 14 of the said judgment.

Award is in conformity. This calculation arrived at by the Tribunal

suffers from no infirmity.

8 The Tribunal has awarded compensation to the victim for

the pain and suffering in the sum of ` 50,000/- keeping in view the

fact that the appellant had to undergo a surgery for which an

implant had to be inserted in his body; attendant charges had also

been granted as also conveyance and special diet.

9 It has been conceded by learned counsel for the respondents

that the documentary evidence evidenced that the victim

remained at home for a period of 8 months and he could not rejoin

his duties. The Tribunal has awarded amount of compensation on

this count for a period of six months. An additional sum equivalent

to two months salary is liable to be added on this count. Under

this head of 'loss of income', the amount awarded as `22,098/-

shall now be read as:-

`22,098/-+`7,366/-=`29,464/-

10    No other modification is called for.


11    Appeal is disposed of in the above terms.




                                             INDERMEET KAUR, J.
JULY 21, 2011
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