Delhi High Court
Rajender Prasad vs Deepak Kumar & Ors. on 5 December, 2012
Author: G.P. Mittal
$ 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 5th December, 2012
+ MAC. APP. 1158/2011
RAJENDER PRASAD ..... Appellant
Through: Mr. Ajay Kumar, Advocate.
Versus
DEEPAK KUMAR & ORS. ..... Respondents
Through: Mr. J.P.N. Shahi, Advocate for the
Respondent No.3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `1,52,980/- awarded
by the Motor Accident Claims Tribunal(the Claims Tribunal) in favour of
the Appellant for having suffered injuries in a motor vehicle accident
which occurred on 08.01.2007.
2. In the absence of any Appeal by the driver, owner or the insurer of the
offending vehicle; the finding on negligence has attained finality.
3. The only ground of challenge raised by the Appellant is that he (the
Appellant) was working as a diesel tank clutch plate mechanic. On
account of 45% permanent disability in relation to his right lower limb
and on account of stiffness of knee, he is unable to perform his duty and
has been rendered jobless. However, he has not been awarded any
compensation towards loss of earning capacity.
4. The Claims Tribunal awarded a sum of `1,52,980/-, which is tabulated
hereunder:
Sl. Compensation under Awarded by
various heads the Claims
No. Tribunal
1. Loss of Income `19,872/-
2. Medical Expenses ` 18,108/-
3. Pain and Suffering, ` 1,00,000/-
Inconvenience, Mental
Shock, Loss of Amenities
4. Special Diet & ` 15,000/-
Conveyance Charges
Total ` 1,52,980/-
5. On the other hand, the learned counsel for the Respondent Insurance
Company urges that the compensation awarded is just and reasonable.
The compensation of `1,00,000/- towards pain and suffering,
inconvenience and loss of amenities include the compensation towards
permanent disability.
6. I would not agree. In the Claim Petition, the Appellant pleaded that he
was working as a diesel tank clutch plate mechanic and was earning
`5,000/- per month. In his affidavit in support of the Claim Petition, he
deposed that on account of permanent disability, he lost his job and was
still unemployed. He stated that people refuse to give him any job
because of his physical condition. The disability certificate Ex.PW2/A
was duly proved by Dr. Nirankar Singh, HOD Orthopaedics, BSA
Hospital, Rohini. The disability certificate Ex.PW2/A shows that the
Appellant is physically disabled on account of stiffness of right knee and
the physical disability was assessed to be 45% in relation to his right
lower limb. No expert opinion was taken from Dr. Nirankar Singh with
regard to its impact on the Appellant's profession. At the same time, it
cannot be lost sight of the fact that the Appellant was working as a
mechanic. The movement of right knee would play a significant role in
his working.
7. In the absence of any specific evidence in Raj Kumar v. Ajay Kumar &
Anr., 2011 (1) SCC 343, the Supreme Court took 45% disability in
respect of left lower limb as 20% of future loss of earning capacity. In
the instant case, I would also make a guess work in assessing the future
loss of earning capacity as 20% on account of 45% of disability in respect
of right lower limb.
8. The Appellant claimed his income to be `5,000/- per month. No cogent
evidence was produced with regard to the income. I would, therefore,
assess loss of earning on the basis of minimum wages of a skilled worker
as fixed by the Government of NCT of Delhi at the time of the accident
which were `3,736/- per month. The Appellant would be entitled to an
addition of 30% on the basis of the judgment of Supreme Court in
Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4)
SCALE 559. The loss of earning capacity thus comes to `2,09,813/-
(`3,736/- + 30% x 12 x 18 x 20%).
9. No other contention has been raised.
10. The enhanced compensation of `2,09,813/- shall carry interest @ 7.5%
per annum from the date of filing of the Petition till its payment. 75% of
the compensation shall be held in fixed deposit in any nationalised bank
for a period of five years, rest 25% shall be released on deposit. The
Appellant shall be entitled to quarterly interest on the amount held in
fixed deposit.
11. The Respondent No.3 Insurance Company is directed to deposit the
enhanced amount of `2,09,813/- with the Claims Tribunal within six
weeks.
12. The Appeal is allowed in above terms.
13. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 05, 2012
pst
