New India Assurance Co Ltd vs Vijay Babbar & Ors
2012 Latest Caselaw 4002 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 9th July, 2012
+        MAC.APP. 129/2011

         NEW INDIA ASSURANCE CO LTD              ..... Appellant
                         Through: Mr. Sameer Nandwani, Adv.
                  versus

         VIJAY BABBAR & ORS                     ..... Respondents
                      Through:         Mr. S.K. Verma, Adv. with
                                       Mr. Deepak Z. Mehta, Adv.,
                                       Mr. A.K. Mehta, Adv. for R-1.
                                       Respondent No.1 in person.
         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                           JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant New India Assurance Company Limited impugns a judgment dated 27.11.2010 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby a compensation of Rs.23,04,801/- along with interest @ 7.5% per annum was awarded in favour of the First Respondent (the Claimant).

2. The Appeal has been filed on the grounds, inter alia, that the Disability Certificate Ex.PW-1/C showing disability of 69% in respect of both lower limbs has not been proved by examining a concerned doctor in terms of the judgment in Rajesh Kumar v. Yudhvir Singh & Anr., 2008 ACJ 2131; that the functional

disability taken by the Claims Tribunal to be 50% was on the very higher side.

3. The Appeal has not only been opposed by the First Respondent but photocopies of the documents have been filed to show that the First Respondent was under treatment in Sir Ganga Ram Hospital till now and that a sum of Rs.3,50,000/- is further required for some future surgery. It has been stated that the First Respondent has not still resumed his duties with M/s. Goel Brothers Prakashan Educational Publishers and Exporters. Though there is no Cross Appeal or Cross Objections, it is stated that the compensation awarded is very low.

4. By an order dated 24.02.2011 the execution of the award was stayed subject to deposit of the entire award amount with the Registrar General of this court along with upto date interest. By a subsequent order dated 05.05.2011, pending disposal of the Appeal, 50% of the award amount was ordered to be released in favour of the First Respondent (the Claimant).

5. Considering the fact that the Disability Certificate was not proved by examining the concerned doctor and the fact that the First Respondent claims that he needs further surgery and is still under treatment, it would be appropriate to remand the case to the Claims Tribunal with the direction to get the Disability Certificate proved and to allow the First Respondent to lead evidence with regard to the future treatment/surgery.

6. 50% of the award amount along with interest ordered to be released to the First Respondent shall remain in his account and shall be disbursed to him in terms of the impugned order and shall be subject to adjustment of the final outcome of the Claim Petition.

7. The remaining 50% of the amount lying deposited with the Registrar General, Delhi High Court, New Delhi along with proportionate interest and the interest accrued during the pendency of the Appeal shall be refunded to the Appellant Insurance Company.

8. The Claims Tribunal shall be at liberty to take fresh view in respect of the compensation payable to the First Respondent and shall not be bound by the view already taken.

9. The parties are directed to appear before the Claims Tribunal on 30th July, 2012.

10. The Appeal is allowed in above terms.

11. The statutory amount of `25,000/- shall be refunded to the Appellant Insurance Company.

12. Pending applications also stand disposed of.

(G.P. MITTAL) JUDGE JULY, 09, 2012 vk