New India Assurance Co. Ltd. vs Sita Ram And Ors.
2014 Latest Caselaw 1692 Del

$~16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment delivered on: 28th March, 2014

+      MAC.APP. 26/2012
NEW INDIA ASSURANCE CO. LTD.                  ..... Appellant
                 Represented by: Mr. K.L. Nandwani, Adv.

                          Versus

SITA RAM AND ORS.                                      ..... Respondents
                               Represented by: Mr. S.K. Sood, Adv. for R1.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal has been preferred against the impugned award dated 01.10.2011, whereby Ld. Tribunal has awarded compensation for an amount of Rs.3,16,000/- with interest @ 7.5% per annum from the date of filing of the Claim Petition till realization of the amount.

2. Ld. Counsel appearing on behalf of the appellant submits that there was no negligence on the part of the driver of the offending vehicle, despite the Ld. Tribunal has awarded the compensation noted above.

3. Ld. Counsel submits that the claimant has specifically admitted that he had got down from a running bus and suffered injuries. Thus, there was no fault of the driver of the offending vehicle.

4. It is not in dispute that respondent no. 1 received injuries while getting down from the offending bus. Thus, the offending bus was involved in the alleged accident.

5. If the claimant does not prove the negligence of the driver of the offending vehicle, the involvement of the vehicle is necessary and if it is proved, even the compensation granted under section 163A of the Motor Vehicle Act would have been more than the award granted by the Tribunal in this case.

6. It is also not disputed that respondent no. 1 received 40% permanent disability in relation to left lower limb due to injuries received in the accident. He was working as a carpenter. Certainly, the disability received by him would affect his avocation to the maximum.

7. Ld. Tribunal has recorded in the award that the injuries suffered by him during the course of the accident is an act of contributory negligence, which cannot be overlooked.

8. Thus an amount of Rs.56,000/- was granted for medicines and treatment, Rs.50,000/- for loss of income on account of leave and Rs.2,00,000/- for loss of amenities of life, loss of disfigurement and for pain and suffering. However, compensation is not granted for loss of earning capacity and future prospectus.

9. While exercising the appellate jurisdiction, the Court has to see whether just and fair compensation has been granted or not?

10. It is important to note that the FIR was registered against respondent no. 2. PW-3, HC Hari Singh has testified the fact that the investigation had been completed and filed the challan before the court. Therefore, the negligence on the part of the driver of the offending vehicle cannot be ruled out. Moreover, the driver of the vehicle did not appear as a witness to disprove the veracity of the facts narrated in the criminal records. Considering the facts and circumstances, I assess 50% as contributory negligence on the part of the injured/claimant and 50% on the part of the driver of offending vehicle.

11. Undisputedly, the injured received 40% permanent disability in relation to left lower limb. Therefore, the injured is entitled for the compensation on account of future loss due to permanent disability. In the assessment of future loss due to permanent disability, the functional disability is to be assessed, whereas functional disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability.

12. In the present case, the injured was a carpenter and sustained 48% permanent disability in relation to left upper limb. In view of above facts and the dictum of Raj Kumar Vs. Ajay Kumar and Anr. (2011) 1 SCC 343, the functional disability is assessed at 24% qua whole body. Accordingly, compensation comes as under:-

Sr. Heads Calculation as Calculation as per per MACT this Court No.

        1.      Loss of    future Nil                  Rs.10,64,160/-
                income                                 (Rs.3,695 + 50%) x 12 x 16


         2.      For medicines and     Rs.56,000/-        Rs.56,000/-
                treatment
        3.      Loss on account       Rs.50,000          Rs.50,000
                of leaves
        4.      Loss of amenities,    Rs.2,00,000/-      Rs.2,00,000
                Loss             of
                disfigurement and
                compensation for
                pain and suffering
        5.      Towards special       Rs.10,000/-        Rs.10,000/-
                diet, conveyance
                and       attendant
                charges.
                Total                 Rs.3,16,000/-      Rs.13,80,160/-

Resultantly, the compensation is assessed at Rs.13,80,160/-.

13. The contributory negligence has been assessed, therefore, the injured/claimant is entitled for 50% of the award amount, i.e., Rs.13,80,160/2 = Rs. 6,90,080/-.

14. Resultantly, the compensation is enhanced to Rs.3,74,080/- (Rs.6,90,080/- - Rs.3,16,000/-).

15. The enhanced compensation shall carry interest @ 7.5% per annum from the date of filing of the claim petition till the date of award dated 01.10.2011.

16. Accordingly, the appellant / Insurance Company is directed to deposit the enhanced compensation amount with the Registrar General of this Court within a period of six weeks from today, failing which, respondents /claimants shall be entitled for penal interest @ 12% per annum on account of delayed payment.

17. On deposit, the Registrar General is directed to release the amount in favour of the respondent / claimant on taking necessary steps by him.

18. The Registry is directed to release the statutory amount in favour of the appellant.

19. In view of the above, the appeal is partly allowed.

SURESH KAIT, J MARCH 28, 2014 Jg/RS