Om Prakash vs Bhagat Singh & Others
2011 Latest Caselaw 4891 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                       MAC APPEAL No.15/2009

                                         Reserved on: 23.09.2011
                                        Date of Order: 30 .09.2011

OM PRAKASH                               ...... Appellant

                        Through:    Mr. S.N. Parashar, Adv. for the
                                    appellant.

                              Versus
BHAGAT SINGH & OTHERS                     ...... Respondents

                        Through:    Mr. S.L. Gupta, Mr. Ram
                                    Ashray, Advocates for R-3.
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. This appeal is directed against the award dated 17th March,

2008 of the Motor Accident Claim Tribunal (hereinafter referred to

as 'the Tribunal' for short) as passed in claim petition No.

104/2007 filed by the appellant herein whereby he had sought

compensation on account of the injuries sustained in the road

accident which took place on 10th October, 2003 when he was

driving Truck No. KA-05-B-5990 and was struck by another truck

bearing registration No. HR-30-2725 being driven by its driver

Bhagat Singh, respondent No. 1 herein, in rash and negligent

manner. The said truck was stated to be owned by Surender

Singh, Respondent No. 2 herein, and was insured with respondent

No. 3, the New India Assurance Company Ltd. Vide the impugned

award, the Tribunal awarded compensation of Rs.3,05,077/-

(inclusive of interim award of Rs.25,000/- passed on 18th March,

2005) with simple interest @9% per annum from the date of filing

of the petition i.e. 7th January, 2004 till realization. Respondent No

3 being the insurer was directed to indemnify the

appellant/claimant. The compensation was made up of

Rs.35,677/- on account of purchase of medicines and payment

made for private OPD, Rs.20,000/- on account of conveyance,

Rs.25,000/- on account of special diet and Rs.2,24,400/- on

account of loss of earning due to disability. The Tribunal has

taken overall disability of the appellant/ claimant to the extent of

20% as against the disability of 70% of right lower limb as per the

disability certificate. The learned Tribunal applied the multiplier

of 17 and arrived at this figure of Rs.2,24,400/-.

2. The appellant has assailed the impugned award claiming

enhancement of compensation on various counts.

3. The foremost contention of the appellant was that after the

accident he was remained in the hospital from 30.10.2003 till

14.11.2003 and he was readmitted from 14.11.2003 till

23.11.2003. He had relied upon the bills Ex. PW2/A and Ex.

PW2/B. However, being the photocopy of the original bills, the

Tribunal did not rely upon these two bills and denied the claim of

the appellant of the amount of Rs.1,08,000/-. In this regard it is

seen that the Tribunal has, apparently, erred in ignoring these

bills inasmuch as photocopies of these bills were taken on record

after the originals thereof were seen and returned. That being so,

these bills being the photocopies of the originals, were rightly

proved by the appellant from the statement of Ravinder Kumar,

Executive, Jaipur Golden Hospital, whereby the appellant was

admitted and got treatment. In this view of the matter, the

appellant would be entitled to the amount of Rs.1,08,000/-

towards medical expenses incurred for the treatment.

4. With regard to claim of Rs.90,000/- sought to be set up by

the appellant allegedly incurred for the artificial limb, the Tribunal

recorded that receipt Ex. PW3/12 stating that Rs.90,000/- was

paid by the appellant to Sri Devi Talab Mandir Charitable Hospital,

Jalandhar City, did not contain details regarding hospitalization of

the appellant for hip replacement and (it was noted in this

certificate cum receipt that same was not valid for medico legal

purpose) hence it was not admissible keeping in view the factum

of injury in right limb of the injured/appellant. It was also noticed

that this certificate cum receipt mentioned it to be not valid for

medico legal purpose. The Tribunal recorded that the same could

have been proved by summoning some witness from the said

hospital and in the absence of the same the receipt Ex. PW3/12

was not reliable. With this finding of fact of the Tribunal on

record, this court pointed out to learned counsel for the appellant

that the receipt was for the replacement of hip and not for

artificial limb as was stated by the appellant in his statement.

The learned counsel sought adjournment for seeking instructions

of the appellant. It is noted that no clarification has been given

by the counsel either verbally or in his affidavit dated 26.08.2011

which was filed in pursuance of the directions of this Court. In

view of this, I do not intend to interfere with the finding of fact

recorded by the Tribunal and I am not persuaded to rely upon the

receipt Ex. PW3/12 for the reasons as recorded by the Tribunal.

5. The main challenge to the award was with regard to the

extent of disability as assessed by the Tribunal. As per the

Tribunal, the disability certificate was produced by the appellant

himself while making statement. However, neither the Doctor,

who gave the certificate, nor any official of the hospital has been

examined to prove the same. Mere production of a copy of

disability certificate will not be a proof of extent of disability

stated in the certificate and only the Doctor who treated the

patient or who examined him medically and assessed the extent

disability can prove the certificate after he stood the test of cross

examination with reference to the certificate. In any case, the

Tribunal noted the disability to be 70% in relation to right lower

limb and assessed the functional disability and also earning

capacity due to this disability to be 20%. The appellant suffered

amputation below knee up to 8 cm in the right lower limb, but,

there is no evidence on record, much less medical evidence led

by the appellant to show that he was incapacitated to do any

other avocation and earn his livelihood. In the given fact and

circumstances of the case it could not be said that the appellant

was incapable of doing any activity or avocation because of his

disability. In the absence of there being any cogent evidence on

record in this regard and taking the disability to the extent of 70%

in relation to lower limb, the functional disability in relation to

whole body of the appellant was rightly assessed as 20% and so

was the percentage of loss of his earning capacity. I do not see

any infirmity or perversity in making this assessment of 20%

disability in earning capacity of the appellant.

6. The appellant was aged about 38 years and as per the

judgment of the Supreme Court in Sarla Verma and Others v

Delhi Transport Corporation and Another [2009 INDLAW SC

488], a multiplier of 15 was to be applied instead of 17 as has

been applied by the Tribunal. If that was so, the appellant was

entitled to compensation of Rs.1,98,000/- only on account of loss

of income in place of Rs.2,24,400/-, that has been granted by the

Tribunal. However, since there is no challenge to this by the

respondent, I do not intend to interfere in application of multiplier

of 17 by the Tribunal and the compensation granted by him of

Rs.2,24,400/-. In the given facts and circumstances of the case I

also do not see any infirmity to the award of compensation of

Rs.1,00,000/- on account of pain and suffering, Rs.20,000/- on

account of conveyance and Rs.25,000/- on account of special

diet. In addition to what has been awarded by the Tribunal, I am

of the view that some amount of compensation needs to be

awarded to the appellant on account of loss of amenities and loss

of expectancy of life. In the totality of facts and circumstances,

Rs.25,000/- each is assessed as compensation on these counts.

7. In view of the above discussion, the appellant/claimant is

entitled to a total compensation of Rs.5,63,400/-. Consequently,

the appellant would be entitled to enhanced compensation of

Rs.1,58,000/- which the respondent No. 3, being the insurer, is

directed to pay to the appellant within 30 days of this order

without interest and thereafter with interest @7.5 per cent from

the date of this order till realization.

8. The appeal stands disposed accordingly.

M.L. MEHTA (JUDGE) September 30 , 2011/awanish