Delhi High Court
Rajesh Kumar vs Ms. Sudershan Bhalla & Anr. on 22 October, 2013
Author: Suresh Kait
$~R-54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22nd October, 2013
+ MAC.APP. 703/2006
RAJESH KUMAR ..... Appellant
Represented by: Mr. Navneet Goyal, Adv.
Versus
MS. SUDERSHAN BHALLA & ANR. ..... Respondents
Represented by: None
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. None has been appearing on behalf of the respondents for the
last two consecutive dates. Same is the position today. Therefore,
this Court has no option but to proceed with the matter.
2. Instant appeal has been preferred against the award
dated 24.05.2006, whereby ld. Tribunal has granted compensation for
a sum of Rs.4,29,520/- with interest @ 6% for a period of three years
and also granted future interest @ 6% till realization.
3. The present appeal has been preferred for enhancement of the
aforesaid compensation amount on the ground that the Ld. Tribunal
has not considered the salary of the injured/appellant as he was
working with Ms. Falcon Enterprises, Bhikaji Cama Place, New Delhi
and was getting a salary of Rs.6,000/- per month. The salary
certificate has been placed on record as Ex. P-83, despite that Ld.
Tribunal has opined that the appellant has not examined any witness
from the aforesaid establishment that the appellant was getting a
salary of Rs.6,000/- per month. Therefore, the Ld. Tribunal has
considered his income on the basis of minimum rates of wages
prevalent at the time of accident, i.e, Rs.1937/- (say Rs.1900/-).
4. On this issue though the appellant has placed on record the
salary certificate, as noted above, but that certificate has not been
proved by any of the witnesses examined by the appellant. Therefore,
I am of the considered view that the said salary certificate has not
been proved by the appellant and the Ld. Tribunal has rightly
considered the salary of the appellant as Rs.1937/- (rounded to
Rs.1900/-) as per the minimum rates of wages prevalent at that time.
5. The second ground argued by the counsel for the appellant is
that the appellant suffered the following injuries in the accident:-
1. Left hip bone fracture.
2. Fracture on left leg below knee.
3. Fracture on left hand.
4. Injuries on left hand and right knee.
5. Injuries on right foot ankle.
6. Injuries on back of shoulder on both arms.
7. Scratches on right leg.
6. Learned counsel submits that the negligence of the driver of the
offending vehicle has been proved and it is opined by the Ld. Tribunal
that the appellant received injuries in the accident due to the
negligence of the driver of the offending vehicle.
7. Dr. Pradeep Sharma (PW2), Orthopaedic Surgeon at Holy
Family Hospital has testified that he examined the appellant on
01.08.98 and found that he had a fracture of left leg bone and fracture
of left hip. The appellant was operated upon by him on 03.08.98 with
interlocking nailing of left tibia and screw fixation of left hip.
Initially the appellant was admitted for the period from 01.08.98 to
10.08.98. The said Doctor proved the discharge summary Ex.
PW2/37. He further stated that the appellant was again admitted in
Holy Family Hospital on 06.01.99 for the removal of screw from the
left tibia and was discharged on 07.01.99. The discharge summary is
Ex.PW2/38. He further testified that the complication was developed
in his left hip in the form of a vascular necrosis, therefore, he was
admitted in the hospital on 27.09.2000. Left hip replacement surgery
was performed and thereafter he was discharged on 03.10.2000. The
discharge summary is Ex.PW2/39. The said witness proved the
certificates Ex. PW2/40 and PW2/41 issued by him and the medical
bills Ex. PW2/1 to Ex. PW2/36.
8. It is important to note that Dr. Amit Manchanda (PW8) who is a
Physiotherapist and treated the appellant has proved the bills Ex.
PW8/1 to Ex. PW8/6.
9. Counsel appearing on behalf of the appellant submits that the
bills produced by the appellant has been considered; and awarded
compensation towards medical bills by the Tribunal. However, he is
challenging that due to the injuries, mentioned above, the appellant
has received 30% disability which has been proved by the disability
certificate Ex. P1, however, Ld. Tribunal has considered the disability
at 20%.
10. He further submits that the appellant was working as a Courier
Collector in the aforesaid firm and after receiving the disability he
would not be able to work comfortably and satisfactorily.
11. Keeping in view the injuries, as noted above and the nature of
the avocation he was involved, the Ld. Tribunal ought to have
considered his functional disability as 30% as has been proved by the
disability certificate Ex. P1.
12. I note, the Tribunal has not given any reason for considering his
functional disability at 20% whereas as per the disability certificate
Ex. P1, the disability is 30%. Even on considering the appellant as a
labourer, he requires healthy and fit body to do the work. With this
disability, he would not be able to work properly and earn
accordingly. He will continue to lose his earning. Accordingly, the
same is granted in his favour.
13. The next ground argued by the counsel for the appellant is that
the appellant at the time of the accident was 32 years old and despite
that the Ld. Tribunal has failed to consider the future prospect keeping
in view the disability.
14. The issue regarding the future prospects has been decided by
the Apex Court in the case of Rajesh and Ors. Vs. Rajbir Singh and
Ors. 2013 (6) SCALE 563 and this court has followed in the case of
ICICI Lombard Gen. Ins. Co. ltd. v. Angrez Singh & Ors. in
MAC.846/2011. Therefore, this issue is no more res integra.
Therefore, I award 50% towards future prospects in favour of the
appellant. Accordingly, the loss on account of disability comes to
Rs.1,74,420/-.
15. Though the counsel for the appellant has argued that the Ld.
Tribunal has granted towards non-pecuniary damages on a very lower
side, however, I note that the Tribunal has granted Rs.10,000/- for
special diet and Rs.10,000/- for conveyance and further granted
Rs.50,000/- towards pain and suffering. I do not find any discrepancy
in the compensation amount granted towards the heads noted above.
16. However, the Ld. Tribunal has failed to grant any compensation
towards loss of amenity. Therefore, keeping in view the injuries
received by the appellant, I grant a sum of Rs.50,000/- towards loss of
amenities. Thus, the enhanced compensation amount comes to
Rs.1,46,900/- [(Rs.1,74,420 - Rs.77,520)+ Rs.50,000].
17. The appellant is entitled to get the enhanced compensation
amount of Rs.1,46,900/- along with interest @ 6% for three years
prior to the date of filing of the appeal. Appellant is also entitled for
6% interest for the enhanced amount from the date of filing of the
appeal till realization.
18. Accordingly, the present appeal is allowed on above terms.
19. The respondent no.2 is directed to deposit the enhanced amount
along with interest with the Registrar General of this Court within
four weeks from today. On deposit of the aforesaid amount, the
Registrar General is directed to release the said amount in favour of
the appellant on taking necessary steps.
SURESH KAIT, J
OCTOBER 22, 2013
RS/jg
