Delhi High Court
The Oriental Insurance Co. Ltd. vs Anil Kumar Sharma & Anr. on 16 March, 2012
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserve on : 10th February, 2012
Date of decision : 16th March, 2012
+ MAC.APP.No.414/2007
THE ORIENTAL INSURANCE CO. LTD. .......Appellant
Through : Mr. Pankaj Seth and Mr. M.K.
Tiwari, Advs.
versus
ANIL KUMAR SHARMA & ANR. ........Respondents
Through : Mr. Anil Agarwal, Adv.
for R-1.
+ MAC.APP.No.476/2007
ANIL KUMAR SHARMA .......Appellant
Through : Mr. Anil Agarwal, Adv.
versus
ROHIT MIDHA & ANR. ........Respondents
Through : Mr. Pankaj Seth and Mr. M.K.
Tiwari, Advs.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The parties have challenged the award of the Claims
Tribunal whereby the compensation of `12,80,000/- has been
awarded to the claimant, Anil Kumar Sharma. The appellant in
MAC.APP.No.414/2007 is seeking reduction of the award
amount whereas the appellant in MAC.APP.No.476/2007 is
seeking enhancement of the award amount.
2. The claimant, a mechanical engineer aged 32 years at
the time of the accident, suffered 75% permanent disability in
relation to his whole body in the accident dated 27th October,
2004. The Claims Tribunal took the loss of earning capacity of
the claimant to be 50% and awarded `5,00,000/- towards loss
of income due to permanent disability, `70,000/- towards pain
and suffering, `30,000/- towards medical expenditure,
`20,000/- towards special diet, `50,000/- towards conveyance,
`1,60,000/- towards attendant charges, `2,50,000/- towards
loss of income during treatment and `2,00,000/- towards loss
of amenities of life. The total compensation awarded is
`12,80,000/-.
3. The learned counsel for the appellant in
MAC.APP.No.476/2007 seeks enhancement of compensation on
the following grounds:-
(i) The loss of earning capacity of the claimant be increased
from 50% to 100%.
(ii) The income of the claimant be taken as `20,000/- per
month to compute the loss of earning capacity.
(iii) The compensation for pain and suffering be enhanced.
(iv) The compensation for medical treatment, special diet,
conveyance and attendant charges be enhanced.
4. The learned counsel for the appellant in
MAC.APP.No.414/2007 seeks reduction of the award amount on
the following grounds:-
(i) The claimant has not proved the income and, therefore,
the minimum wages be taken into consideration for
computation of loss of income due to permanent disability.
(ii) The future prospects should not be taken into
consideration.
(iii) 1/3rd should be deducted from the income of the claimant
for computing the loss of earning capacity.
(iv) The claimant has not proved the attendant charges.
5. The claimant appeared in the witness box as PW-1 and
deposed that he was self-employed as an engineer at the time
of the accident and was working under the name and style of
S.R. Engineering Equipments earning approximately `20,000/-
per month. He further deposed that he could not work after
the accident as he has lost co-ordination of both his hands and
could not close his fists. The wife of the claimant also
appeared in the witness box as PW-2 and deposed that the
claimant was a diploma holder in auto-engineering and was
initially employed in Neptune Equipment Private Limited at a
salary of `9,000/- per month and thereafter with Rdevis
Engineers Private Limited at a salary of `9,000/- to `10,000/-
per month. The claimant thereafter started his own business
in which he was earning approximately `20,000/- to `22,000/-
per month. She further deposed that the claimant has not
been able to resume the work after the accident. The service
record of the claimant was proved as Ex.PW2/5. Ex.PW3/6 is
the statement of account of S.R. Engineering Equipments for
the period from 1st October, 2003 to 26th July, 2005. The letter
dated 10th May, 2002 of Rdevis Engineers Private Limited has
also been placed on record. The brother of the claimant also
appeared in the witness box as PW-3 and proved the bank
statement of S.R. Engineering Equipments as Ex.PW3/6 for the
period 1st October, 2003 to 26th July, 2005.
6. As per the disability certificate, Ex.PW4/1, the permanent
disability of the claimant has been assessed to be 75% in
respect of his whole body and his condition is likely to change
with the passage of time and the re-assessment was
recommended after three years from the date of the
assessment. The Claims Tribunal took the loss of earning
capacity of the claimant to be 50%. The claimant is claiming
the loss of his earning capacity to be 100% on the ground that
he is unable to do any work. Ex.PW4/1 was issued on 2nd
February, 2007 and the period of three years is already over
after the date of disability certificate. In view of the
assessment made in Ex.PW4/1 that the claimant's condition
was likely to change with the passage of time and the re-
assessment was recommended after three years, this Court is
of the view that the claimant should again be examined by the
Board and his present condition should be ascertained. In that
view of the matter, the Medical Superintendent of All India
Institute of Medical Sciences is directed to convene a Board to
re-assess the claimant's condition and to submit a certificate
with respect to his present condition within a period of three
months. The claimant is directed to submit the relevant
documents to the Medical Superintendent within a period of
four weeks.
7. Since the claimant's case has to be re-assessed by All
India Institute of Medical Sciences, this Court is of the view that
the fresh disability certificate be considered by the Claims
Tribunal.
8. In the facts and circumstances of this case, both appeals
are allowed and the case is remanded back to the Claims
Tribunal for fresh adjudication. The pending application is
disposed of.
9. The claimant is permitted to lead additional evidence
after receipt of the fresh disability certificate. The Claims
Tribunal shall also provide an opportunity to the respondent to
rebut the additional evidence to be led by the claimants. The
Claims Tribunal shall pass a fresh award after considering all
the grounds raised by the parties.
10. The appellant in MAC.APP.No.414/2007 has deposited the
entire award amount before the Claims Tribunal out of which
50% amount along with interest has been released to the
claimant. Subject to the final outcome, the remaining amount
deposited by the appellant shall remain in Fixed deposit with
the Claims Tribunal but the monthly interest thereon shall be
paid to the claimants by transferring the same to the
claimant's bank account. The Claims Tribunal shall pass
appropriate order in this regard within a period of four weeks.
11. The statutory amount deposited by the appellant in
MAC.APP.No.414/2007 be returned back to the appellant.
12. Both the parties shall appear before the Claims Tribunal
on 4th July, 2012 when the Claims Tribunal shall fix a date for
recording of the additional evidence. The LCR be sent back
forthwith.
13. Copy of this judgment be sent to the Medical
Superintendent, All India Institute of Medical Sciences. The
Medical Superintendent shall intimate the date for examination
of the claimant to the claimant by registered AD post.
J.R. MIDHA, J
MARCH 16, 2012
aj
