Delhi High Court
Mohd Saleem vs Adarsh Kumar & Ors. on 24 October, 2013
Author: Suresh Kait
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 24th October, 2013
+ MAC.APP. 258/2011
MOHD SALEEM ..... Appellant
Represented By: Mr. S.N. Parashar, Adv.
versus
ADARSH KUMAR & ORS. ..... Respondents
Represented By: Mr. Sameer Nandwani, Adv. for
R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Instant appeal has been preferred against the impugned award
dated 13.10.2010 whereby, ld. Tribunal has granted compensation as under:
"1. Compensation towards
pain and suffering : Rs.70,000/-
2. Loss of Amenities : Rs.50,000/-
3. Loss of earning due to injury
(for 8 months) : Rs.28,000/-
4. Future loss in earning capacity
due to disability : Rs.2,36,250/-
5. Expenses towards medical
Bills : Rs.28,105/-
6. Compensation towards
conveyance and special diet
(without bills) : Rs.15,000/-
7. Attendant Charges
(four months) : Rs.16,000/-
8. Reasonable medical expenses
(without bills) : Rs.10,000/-
Therefore, in my considered opinion the petitioner is entitled
for Rs.4,53,355/- (rounded off to Rs.4,53,500/-) which shall
be the just compensation to petitioner."
2. The present appeal is for enhancement of the compensation as noted
above.
3. Ld. Counsel appearing on behalf of the appellant has argued that
appellant was coming from Ghazipur Subzi Mandi with his friend namely
Rohit after purchasing vegetables in Vehicle No. DL-1Q-0078. When they
reached main Jagat Puri Road Picket PV4, Jagat Puri, Delhi, a Tempo
no. DL-1LG-5999 driven rashly and negligently hit the appellant's vehicle.
As a result of which he and one Nadeem sustained grievous injuries. They
were taken to Dr. Hedgewar Hospital, Delhi.
4. Due to the aforesaid accident, appellant suffered grievous injuries
such as (i) fracture both bone leg type II compound (rt.) (ii) S/c fracture left
type - 1 compound. He remained hospitalized for the period from
20.10.2007 to 18.12.2007 and 04.08.2008 to 12.08.2008 and thus suffered
45% permanent disability. At the time of accident, he was 32 years of age
and was earning Rs.7,000/- per month.
5. PW3, Dr. Arun Yadav, Orthopaedic Surgeon, Hindu Rao Hospital,
Delhi deposed that disability certificate dated 13.07.2009 was issued to
appellant by the Board of Directors of which he was one of the member. He
further deposed that as per the certificate, the appellant was suffering from
disability of 45% in relation to both lower limbs and right upper limb.
6. Ld. Counsel appearing on behalf of the appellant submits that
appellant is a vegetable vendor and for vegetable vending, person should be
healthy and fit. Due to the injuries sustained, there will be effect on his
avocation.
7. Ld. Counsel submits that for functional disability, Tribunal or the
court has to see what would be the effect on the avocation of the injured due
to the injuries received. However, ld. Tribunal failed to do so. Therefore,
the ld. Tribunal has wrongly considered 25% of the functional disability.
8. Ld. Counsel submits that in the present case, it has been certified by
Dr. Arun Yadav (PW3) that the appellant received 45% permanent disability
in relation to both lower limbs and right upper limb. If a person like
vegetable vendor received such disability, certainly he will not be able to
work as he was working earlier. Ld. Tribunal ought to have considered
45% as functional disability, however considered only 25% without any base
and reasons.
9. On this issue, ld. Counsel appearing on behalf of respondent /
insurance company submits that ld. Tribunal has rightly considered the
functional disability as 25% keeping in view the law settled on this issue by
the Apex Court in the case of Raj Kumar v. Ajay Kumar & Ors. 2010 (12)
SCALE.
10. Ld. Counsel further submits that Tribunal or the court has to see what
would be the effect on the avocation of the injured and only thereafter the
disability has to be assessed.
11. The appellant could not prove his salary. Therefore, the ld. Tribunal
has taken the minimum wages and accordingly granted the compensation.
Even in the case of a labourer, a person has to be bodily healthy and fit and
only thereafter he can earn his livelihood.
12. In the present case, the appellant was working as a vegetable vendor
and the accident took place when he was coming after purchasing the
vegetables from Sabzi Mandi. Therefore, it is established that he was a
vegetable vendor and selling the vegetables in a retail manner. Therefore, he
has to move here and there, one place to another, one Gali to another Gali.
Therefore, after receiving the nature of injuries as noted above, his
movement has been restricted considerably.
13. Similar issue has come before the Supreme Court in case of Mohan
Soni v. Ram Avtar Tomar & Ors. 2012, ACJ 583 and Nagarajappa v.
Divisonal Manager, Oriental Insurance Co. Ltd. AIR 2011 SC 1785.
14. Keeping in view the injuries and the avocation of the appellant and the
dictum of the Supreme Court in the cases noted above, I am of the
considered opinion that ld. Tribunal has wrongly considered 25% functional
disability. Therefore, I consider 45% functional disability of the appellant.
15. The second issue argued by the ld. Counsel for the appellant is that for
the loss of disfigurement nothing has been granted by the ld. Tribunal.
16. On this issue, ld. Counsel appearing on behalf of respondent /
insurance company has fairly conceded that towards loss of disfigurement,
ld. Tribunal has not granted any amount, however compensation towards
loss of amenities and for pain and sufferings, Rs.50,000/- and Rs.70,000/-
has been granted respectively. Therefore, both these heads cover loss of
disfigurement.
17. I do not agree with the submission of the ld. Counsel for the appellant.
Above noted two heads are totally different from disfigurement. Therefore, I
grant Rs.50,000/- for loss of disfigurement to the appellant. Accordingly,
the compensation comes as under:
Heads Compensation Compensation
granted by ld. granted by this
Tribunal Court
Compensation towards pain Rs.70,000/- Rs.70,000/-
and suffering
Loss of amenities Rs.50,000/- Rs.50,000/-
Loss of disfigurement Nil Rs.50,000/-
Loss of earning due to injury Rs.28,000/- Rs.28,000/-
(for 8 months)
Future loss in earning capacity Rs.2,36,250/- Rs.4,25,250/-
due to disability
Expenses towards medical Rs.28,105/- Rs.28,105/-
bills
Compensation towards Rs.15,000/- Rs.15,000/-
conveyance and special diet
(without bills)
Attendant charges (four Rs.16,000/- Rs.16,000/-
months)
Reasonable medical Rs.10,000/- Rs.10,000/-
Expenses (without bills)
Total Compensation Rs.4,53,355/- Rs.6,92,355/-
18. Hence the enhanced compensation comes to Rs.2,39,000/-
(Rs.6,92,355 - Rs.4,53,355).
19. The enhanced compensation shall also carry interest @ 7.5% per
annum from the date of filing of the petition till realization.
20. Instant appeal stands disposed of on the above terms.
21. Consequently, respondent no. 3 / insurance company is directed to
deposit the enhanced compensation with interest within five weeks from
today with Registrar General of this Court.
22. On deposit, the Registrar General shall release the said amount in
favour of the appellant / claimant.
SURESH KAIT, J
OCTOBER 24, 2013
jg
