Bahadur Singh vs Sh Bhagwati Yadav & Anr
2014 Latest Caselaw 6002 Del

$~A-51
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    MAC.APP. 566/2013
                                 Date of decision: 20.11.2014
     BAHADUR SINGH               ..... Appellant
                         Through      Ms.Aruna Mehta, Advocate
              versus
      SH BHAGWATI YADAV & ANR            ..... Respondent
                     Through Mr.Dilip Singh and Mr.Surender Singh,
                             Advocates for R-1
                             Mr.Sankar N.Sinha, Advocate for the
                             insurance company
      CORAM:HON'BLE MR. JUSTICE JAYANT NATH
      JAYANT NATH, J. (ORAL)

1. By the present appeal the appellant/claimant seeks to impugn the Award dated 19.01.2013 and modified on 06.02.2013.

2. The brief facts which led to filing of the claim petition and the present appeal are that on 8.3.2009 the appellant was going on his bicycle at Raja Garden. When he reached red light chowk at Raja Garden he was hit by a Tata Indica Car. He fell down and sustained injuries.

3. On the basis of the evidence on record the Tribunal concluded that the accident took place due to the rash and negligent driving of the driver of the offending vehicle. On compensation the Tribunal awarded a total compensation of Rs.63,870/- details of which read as under:-

                     Treatment        29,200/-
                     expenses
                     Pain         and 10,000/-
                     sufferings
                     Conveyance and 5,000/-
                     special diet


                       Loss of income 19,670/-
                      during treatment
                      period
                      Compensation on Nil
                      account       of
                      disability
                      Total            63,870/-

4. The Tribunal noted that as per the disability certificate placed on record Ex.PW2/5 which was issued by DDU hospital the appellant had 5% permanent disability in relation to right upper limb. The Tribunal also noted that as per the appellant he was making aluminium foils. However, the Tribunal concluded that 5% disability in relation to right upper limb will not affect the vocation or working capacity of the appellant and did not grant compensation to the appellant towards loss of earnings due to disability.

5. Learned counsel appearing for the appellant seeks enhancement of compensation. She submits that the compensation awarded by the Tribunal is erroneous. She also points out that pursuant to orders of this Court the appellants have led additional evidence as AW-1 who has proved that the appellant has 28% permanent physical disability in relation to right lower limb in addition to disability of 5% of upper limb. She submits that this new evidence on record makes a strong case of the appellant for grant of loss of income due to permanent disability. She also submits that the Tribunal has wrongfully assessed the income of the appellant based on minimum wages for a unskilled workman. She relies upon judgment of this Court in FAO No.369/1999 dated 20.3.2007 and FAO No.309/2000 titled Desh Raj & Ors. vs. Madan Lal & Ors. dated 23.2.2007 where this court had noted that in unorganized sectors it is difficult to bring documentary evidence to sustain the evidence of income earned and some guess work would be necessary. In both the cases she submits that the income was assessed on guess

work at wages higher than minimum wages. She further submits that the Tribunal has awarded inadequate compensation for pain and suffering and no compensation is given for loss of amenities. She submits that compensation has to be enhanced for pain and suffering. She also seeks compensation for loss of amenities and attendant charges.

6. I will first deal with the issue of assessment of the functional disability of the appellant based on the fresh disability certificate which has now been proved.

7. AW-1 Dr. Navneet Rustagi from Guru Govind Singh Government Hospital, Delhi has in his evidence stated that the appellant is suffering from 28% permanent physical disability in relation to right lower limb. The photocopy of the certificate has been placed on record, before the Tribunal. Disability Certificate issued by DDU hospital has been filed stating that the appellant was suffering from 5% disability with regard to right upper limb (Ex.PW2/5).

8. The appellant has also entered the witness box as PW-2. In his evidence by way of affidavit he states that prior to the accident he was manufacturing aluminium foils from his home and was earning Rs.10,000/- per month. He states that he has started his business two years back. Tribunal has also summoned Harcharan Singh Bhatia PW-3 who has said in his affidavit by way of evidence that he knows Bahadur Singh who was manufacturing aluminium foils and he used to purchased aluminium foils from the appellant.

9. PW-2 in his cross-examination confirms that he has not filed any documents to show that he was earning Rs.10,000/- per month or to say that he has suffered loss in his business or work due to injuries sustained.

10. I may also note that PW-2 alongwith his affidavit by way of evidence has produced original invoice from Tyagi Engineering Works Ex.PW-1/9 which states that he purchased a machinery being aluminium foil rewinding machine with motor and drive. Similarly, photographs PW1/10 and PW1/11 have also been filed

showing the photographs of the machinery. A booklet containing 100 sheets stated to be invoices prepared for sale of aluminium foils has also been filed on the letter head of BS Aluminium foil, A-504, Raghubir Nagar, Delhi which was the address of the appellant at the time when the claim petition was filed which is apparent from the address mentioned in the Award. All this evidence shows that the appellant was engaged in the business of manufacture of aluminium foil from his residence

11. In the light of the evidence above given, the nature of disability suffered by the appellant is bound to effect the appellants mobility and consequent ability to run the machine and effect sale of his products, in the unorganized sector. I assess the functional disability of the appellant based on the fresh evidence and previous evidence at 30%.

12. Coming to income, the Tribunal has assessed the income based on minimum wages at the relevant time as Rs.3,934/-.

13. Reference may be had to the judgment of this Court in FAO 369/1999 dated 20/3/2007 where this court noted as follows:-

"10. In case of self employed people or people employed in the unorganized sector, it is difficult to bring documentary evidence to sustain the income for the reason, poverty and ignorance in India leads people to be fairly un-officious in their daily lives."

14. Keeping in view the above legal position and evidence placed on record by PW-2 the appellant, namely, Ex.PW1/9 the invoice issued by Tyagi Engineering works, the photographs of the machine Ex.PW1/10 and Ex.PW1/11, the carbon copy of invoices running into 100 pages and the evidence of PW-3, a customer of the appellant, I assess the income of the appellant at Rs.7,500/- per month.

15. Hence, loss of income due to physical disability would be Rs.2,43,000/-

(7500 x 12 x 30/100 x 9). Similarly loss of income during treatment period the Tribunal had awarded salary for five months. Hence compensation would be Rs.7500 x 5= Rs.37,500/-.

16. Coming to the non-pecuniary damages the Tribunal has awarded Rs.10,000/- for pain and suffering. As per PW-2 the appellant in his affidavit by way of evidence has pointed out that he has remained admitted in hospital for 18 days and was operated upon in relation to fractured bones where a plate was inserted. Thereafter the appellant states that he has continued with the treatment with a private doctor for about nine months.

17. Keeping in view the evidence on record the compensation for pain and suffering is enhanced to Rs.25,000/-. Similarly, I also award Rs.25,000/- for loss of amenities. The appellant was under treatment for nine months. Accordingly, I award Rs.20,000/- as attendant charges.

18. The total compensation would now read as under:-

      Treatment expenses                  29,200/-

      Pain and sufferings                 25,000/-

      Conveyance and special diet         5,000/-

      Loss of income during treatment 37,500/-
      period

      Loss of amenities                   25,000/-

      Compensation on account of 2,43,000/-
      disability

      Attendant charges                   20,000/-

      Total                               3,84,700/-

19. The insurance company respondent no.2 will deposit the additional compensation amount alongwith interest @7.5% per annum with the Registrar General of this Court from the date of filing the claim petition till deposit in Court. Registrar General shall release 50% of the additional amount. Balance 50% shall be kept in fixed deposit with UCO Bank, Delhi High Court for a period of five years. The appellant shall be entitled to withdraw quarterly interest. Appeal is accordingly disposed of.

JAYANT NATH, J.

NOVEMBER 20, 2014 n