Mohd.Tahir Khan vs Vinod Kumar & Ors.
2011 Latest Caselaw 5055 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 13.10.2011


+MAC Appeal No.909/2011 & CM No.18862/2011 (for delay)

MOHD.TAHIR KHAN                      ...........Appellant
                         Through:    Mr.Navneet Goyal, Advocate.

                   Versus

VINOD KUMAR & ORS.                   ..........Respondents
                 Through:            Nemo.

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 assailed the impugned Award dated

08.6.2011 whereby the compensation in the sum of Rs.4,51,950/-

had been awarded to the victim. The appellant is aggrieved by

the said amount. His contention is that in view of the judgment of

the Apex Court reported in 2011(5) Scale Sri Kumaresh Vs. The

Dvl.Manager National Insurance Col.Ltd. where also the claim of

a manual labourer aged 20 years is involved; compensation almost

to the tune of Rs.10,00,000/- had been awarded. Claim of the

claimant is also liable to be enhanced on the same ratio.

2. Facts emanating from the record show that the claimant

Mohd.Sohail while going to work had suffered grievous injuries;

this was on 31.10.2007; victim was going on foot when a maruti

car hit him from the opposite direction; the victim remained in

hospital between 03.10.2007 to 03.12.2007 i.e. almost for a period

of two months and thereafter again between 07.01.2009 to

21.2.2009 i.e. for about six weeks thereafter. The permanent

disability of the victim was categorized at 71%; this was in terms

of the disability certificate Ex.PW-1/3 issued by the Guru Teg

Bahadur Hospital and exhibited in the version of PW-2 Dr. Ashish

Rustagi. The victim had suffered this permanent disability qua his

left lower limb. The victim at the relevant time was working as a

helper in a chicken shop; his contention was that he is earning

Rs.6000/- per month but in the absence of any documentary proof

to substantiate this claim the minimum wages of an unskilled

worker calculated at Rs.3500/- per month were taken as the

income of the victim. Keeping in view the nature of his working

i.e. being a helper in a chicken shop, permanent disability of 71%

which was a grievous injury in the left lower limb; the functional

disability qua the whole body had been calculated at 35%. The

Tribunal had followed the ratio of the judgment of the Apex Court

reported in Raj Kumar Vs. Ajay Kumar, 2011 ACJ-1 where

principles relating to grant of compensation in case of injuries

have been detailed. Petitioner at the relevant date was 19 years

of age. Keeping in view the fact that the victim had suffered an

open grade IIIrd B facture of both bones of left leg i.e. a gap in the

left tibia bone, the court had rightly assessed that keeping in view

the nature of his job the functional disability of the victim would

be about 50% of the permanent disability. Permanent disability

qua the left lower leg had been assessed at 71% which was

approximated to 35% qua the whole body. In view of the

aforenoted factual scenario this conclusion does not in any

manner suffers from any infirmity. The compensation for loss of

earning capacity had accordingly been calculated at Rs.2,64,000/-.

This was as per the formula laid down in the case of Raj Kumar

(supra). Besides this, compensation for 'pain and suffering' had

been awarded at Rs.65,000/-; compensation for 'loss of amenities,

enjoyment' and compensation for 'disfiguration' had been

calculated at Rs.60,000/-; the court had noted that the petitioner

would not be able to go for work in the next six months for which

compensation had been awarded to the tune of Rs.21,000/-;

medical bills produced by the petitioner to the tune of Rs.6,921/-

were also fully re-imbursed. Compensation for 'conveyance and

special diet' had been awarded at Rs.10,000/-; Rs.21,000/- had

been granted as 'loss of marriage prospects'. Interest had been

awarded at 7.5% per annum. Before this Court contention is that

the interest rate should be awarded at 9% per annum. In view of

the judgment of Dharampal Vs. UP State Road Transport , III 2008

ACC(1) the court had held that interest awarded at 7.5% per

annum would be fair and just to meet the ends of justice. This

finding qua this interest rate calls for no modification.

3. The judgment of Sri Kumaresh(supra) was in the facts and

circumstances of that particular case. In this case also the

permanent disability had been quantified at 70%. The victim

being a manual labourer his body disability had been taken at

35%. 'Loss of future earning' had been arrived at the figure of

Rs.4,32,000/- as the income of the deceased had been assessed at

Rs.6000/- per month. Ratio of the said judgment does not in any

manner come to the aid of the appellant.

4. The impugned Awarded suffers from no infirmity. Appeal is

without any merit. Dismissed.

INDERMEET KAUR, J.

OCTOBER 13, 2011 nandan