Delhi High Court
Ramesh vs Mool Chand & Ors on 25 November, 2014
Author: Jayant Nath
$~A-12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25th November 2014.
+ MAC.APP. 1242/2012
RAMESH ..... Appellant
Through Mr.Sanjeev Srivastava, Advocate.
versus
MOOL CHAND & ORS ..... Respondents
Through Ms.Kirti Sethi, Mr.J.P.N.Shahi,
Advocates for R-4.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
ORDER
% 25.11.2014
1. By the present appeal the appellant seeks enhancement of
compensation as awarded by the award dated 13.02.2012.
2. The brief facts which led to the filing of the claim petition and the
present appeal are that on 19.07.2004, the appellant was standing on a bus
stop at Ashram. He was hit by a tractor said to be driven by respondent No.1
in a rash and negligent manner and he suffered injuries.
3. Based on the evidence on record the tribunal concluded that the
accident took place on account of rash and negligent driving of respondent
No.1.
4. On compensation, the tribunal awarded a total compensation of
Rs.3,05,597/- as follows:-
On account of medical expenses Rs.11,477
Loss of future income on account of Rs.2,04,120
disability
Future loss of income Rs.20,000/-
Pain & Suffering Rs.40,000/-
Special diet Rs.15,000/-
Conveyance Rs.15,000/-
Total Rs.3,05,597
5. Learned counsel appearing for the appellant submits that the
compensation awarded is inadequate. He firstly submits that the appellant
has suffered 66% permanent disability in respect of the left upper limb. He
submits that the appellant was working as a mason with MCD. The Tribunal
has assessed the income of the appellant based on Minimum Wages
Schedule for an unskilled labour at Rs. 2,863/- and has wrongly held that the
appellant suffered temporary disability and assessed the functional disability
at 66%. Hence, the Tribunal has wrongly awarded a compensation of
Rs.2,04,120/- for loss of future income on account of disability. It is urged
that the disability was actually permanent and the functional disability has to
be assessed at much higher level. It is next urged that the appellant on the
date of the accident was 55 years old and while assessing loss of future
income on account of disability, the Tribunal has not enhanced the assessed
income by 15% on account of future prospects relying upon the judgment of
the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors.,
(2013) 9 SCC 54. It is lastly submitted that the compensation for non-
pecuniary damages is also on the lower side.
6. Learned counsel for respondent No. 4 submits that the compensation
is just, fair and reasonable and the assessment of functional disability is in
order.
7. I may first look at the evidence placed on record. PW-1 in his
affidavit by way of evidence states that he was working as a mason with
MCD and was getting a salary of Rs.8,500 per month. He further states that
he has taken leave from the Department for a long time.
8. Nothing is filed by the appellant to show that he was working as a
mason with MCD Department and earning Rs.8,500/- per month. No proof
is filed to show that he was a mason. Even if he was working for MCD, no
description of the office where he was working and the nature of work he is
performing is mentioned. No salary slip, appointment letter, etc. is filed.
The evidence is completely silent.
9. In the light of the evidence placed on record, the Tribunal was
justified in assessing the income of the appellant based on Minimum Wages
of an unskilled worker.
10. On functional disability, reference may be had to the disability
certificate. The disability certificate issued by Pt.Madan Mohan Malviya
Hospital dated 30.07.2011 states as follows:-
"This is certify that Shri Ramesh s/o Kanda Swami aged 65
year male with registration No.120857 is a case of physical
disability and has 66% (sixty six percent) permanent (physical
impairment) in relation to his left upper limb.
This condition is likely to improve after treatment. Re-
assessment is recommended after a period of two years."
11. The Tribunal noted that the accident occurred in July 2004 and as per
the disability certificate dated 30.07.2011 the injured is likely to be
temporary disabled for two years. The contention of the appellant that the
disability is permanent cannot be accepted in the light of the clear wording
of the disability certificate reproduced above.
12. Accordingly, given the nature of the evidence placed on record by the
appellant, there are no reasons to differ with the view taken by the Tribunal
assessing the functional disability at 66%.
13. On the issue of future prospects, the age of the appellant as noted by
the Tribunal in the Award is 55 years. The voter card of the claimant has
also been placed on record as Ex. PW1/4. According to the voter card the
injured was 45 years old on 01.01.1994, hence on the date of the accident he
would have been around 55 years old. Relying upon the judgment of the
Supreme Court in the case Rajesh & Ors. vs. Rajbir Singh & Ors. (supra),
it would be appropriate if in the facts and circumstances of the present case
15% is added to the income of the injured towards future prospects as the
injured is below 60 years of age.
14. Thus, loss of future income on account of disability now amounts to
Rs. 2,34,654/- [(2863+15%) x 66% x 9 x 12]
15. On non-pecuniary damages, PW1 in his affidavit by way of evidence
states that he remained as indoor patient in the Hospital from 18.07.2004 to
23.07.2004. The appellant has suffered 66% physical impairment in relation
to left upper limb.
16. In the light of the above fact, I award a sum of Rs.50,000/- for loss of
amenities and disfigurement. The compensation amount is accordingly
enhanced.
17. The compensation amount would now reads as follows:-
On account of medical expenses Rs.11,477
Loss of future income on account of Rs. 2,34,654/-
disability
Future loss of income Rs.20,000/-
Pain & Suffering Rs.40,000/-
Loss of Amenities & Disfigurement Rs. 50,000/-
Special diet Rs.15,000/-
Conveyance Rs.15,000/-
Total Rs.3,86,131/-
18. The above amount shall be deposited by respondent No.4 along with
up to date interest @ 7.5% p.a. from the date of the filing of the claim
petition till deposit in court before the Registrar General of this court within
six weeks from today. On receipt of the amount, the same shall be released
to the appellant
19. The appeal stands disposed of.
JAYANT NATH, J
NOVEMBER 25, 2014
rb
