Delhi High Court
Satya Prakash Malik vs Iqbal Singh & Ors on 28 May, 2015
$~A-51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on :28.05.2015
+ FAO 609/1999
SATYA PRAKASH MALIK ..... Appellant
Through Mr.Pushpak Mahajan, Advocate
with appellant-in-person.
versus
IQBAL SINGH & ORS. ..... Respondent
Through Mr.K.L.Nandwani, Adv. for
Insurance Company
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. The brief facts which led to the filing of the claim petition under
section 110-A of the Motor Vehicles Act, 1939 is that the appellant Shri
Satya Prakash Malik suffered injuries in a road accident on 28.8.1980. He
was driving a two wheeler scooter. At Safdarjung Road he was hit by a
car driven by respondent No.1. Shri Satya Prakash Malik suffered
fracture of femur, complex fracture on right leg, fracture on right wrist
and injuries on other parts of the body. He was treated in Army hospital
and R.M.L.Hospital from 28.8.1980 to 4.11.1980 and from 8.12.1980 to
11.12.1980.
2. Based on the evidence on record the Tribunal held that the accident
took place due to the rash and negligent driving of the car by respondent
No.1.
3. On compensation the Tribunal awarded the following
compensation:-
Pain, shock and suffering Rs.15,000/-
Expenditure on fracture, Rs.53,000/-
medicine, conveyance and
special diet etc.
Loss for permanent Rs.1,15,200/-
disability
Increment and honorarium Rs.1640/-
loss
Total Rs.1,84,840/-
4. The present appeal is filed seeking enhancement of compensation.
Learned counsel appearing for the appellant has made various
submissions seeking enhancement of compensation. I will deal with the
submissions of the appellant contention wise.
5. It is firstly contended by learned counsel for the appellant that there
is a calculation mistake on the face of the Award. The Tribunal has taken
the functional disability of the appellant as 45% and has assessed his
income as Rs.3,500/- per month. Based on this the amount loss of earning
capacity has been taken to be Rs.1,200/- per month whereas 45% of
Rs.3,500/- would actually be Rs.1,575/- per month. It is urged that the
annual loss of income would hence come to Rs.18,900/- per year and not
14,400/- per year as taken by the Tribunal.
6. The error is apparent on the face of the record. The Award is
corrected and the compensation for disability is enhanced to
Rs.1,51,200/- (18,900 x 8).
7. Secondly, it is contended by learned counsel for the appellant that
the Tribunal has while assessing the salary of the appellant has only
taken the basic pay of Rs.3,500/-. The appellant was also be entitled to
Dearness Allowance and the same should also have been added for
assessing the salary of the appellant. Reliance is placed on a statement on
record. The statement which is relied upon by learned counsel for the
appellant is a typed copy signed by the claimant himself. As per this
statement it is claimed that apart from the basic pay the appellant was
getting Dearness Allowance of Rs.5,250/- and a total salary of Rs.8,750/-
per month. No evidence has been pointed out by the appellant which
would show that the appellant was getting Dearness Allowance of
Rs.5,250/- per month. From the evidence of PW-2 it follows that the
appellant was working as a Senior P.A. in the Ministry of Defence. To
prove his gross salary he could have easily filed his pay slip or could have
summoned the record from the Ministry of Defence. PW-2
Mr.S.N.Malviya, who was summoned from the Ministry of Defence has
only mentioned that the appellant was working on a pay scale of Rs.650-
1040 and was on a Class II Gazetted post. Nothing further is mentioned
about any Dearness Allowance. In the absence of any cogent evidence
the said contention of the appellant cannot be accepted.
8. Learned counsel appearing for the appellant has thirdly submitted
that the Tribunal has accepted the statement of account filed by the
appellant from 31.8.1980 to December 1983 which includes the
expenditure of medicine, special diet and conveyance. The Tribunal
accepted the summary of accounts of other expenditure which total
Rs.52,998.62. The Tribunal accordingly allowed Rs.53,000/- towards
these expenses. According to the learned counsel for the appellant this
figure should have been Rs.1,51,925/-. He relies on a Statement of
Account stated to have been placed on record.
9. A perusal of the statement of account filed by the appellant shows
that the Statement of Account is a self prepared Statement of Account.
The various expenditures allegedly incurred are listed there which total
Rs.1,51,925/-. This expenditure largely reflects taxi fare, diet and
purchase of food. The basis of this claim supporting documents etc.
nothing is placed on record. This evidence cannot be accepted. Hence,
there are no grounds made out to enhance the compensation awarded by
the Tribunal on this account.
10. It is next submitted by learned counsel for the appellant that lots of
leave had been taken by the appellant and there were a lot of paid leaves.
As it could have been encashed at a later stage, the appellant is entitled to
a compensation on account of loss of leave. Similarly, it is urged that the
appellant also suffered loss of promotions with consequential loss of
salary for which also it is urged that the appellant is liable to be
compensated.
11. The Tribunal noted that as per certificate placed on record by the
appellant the appellant was paid all pay and allowances for the period of
leave from August 1980 to April 1981, thereby not suffering any loss on
this account. In this background no payment has been made for loss of
leave. Similarly, as far as loss of promotion is concerned, again the
appellant has failed to place on record any evidence to show what was the
loss of promotion, if any, and the consequential monetary loss,if any. In
the light of these facts the Tribunal has rightly not granted any
compensation for the same.
12. Learned counsel for the appellant has fifthly submitted that the
Tribunal has wrongly awarded interest @12% per annum not from the
date of filing of the claim petition but for a period of seven years only i.e.
from the period when the appellant examined himself in the witness box
i.e. in 1995. It is urged that the entire blame for the delayed adjudication
by the Tribunal could not be put on the appellant. It is pointed out that
respondent took 1½ years to file the written statement. It is further urged
that from October 1995 to August 1997 the Tribunal was not functional.
Hence, as it is accordingly urged that interest should have been given
from the date of filing of the claim petition i.e. in 1981 and not only for
the period of 7 years.
13. Learned counsel appearing for the respondent has, however, stated
that there are no justification for extending the period of interest. He
submits that the Tribunal has awarded interest @12% per annum which
itself is on the higher side. Hence, there is no reason to increase the
number of years for which interest would be payable to the appellant.
14. The exact reason for the delay of 18 years in disposal of the
proceedings are not possible to ascertain as the trial court record was lost
while the matter was pending in this Court, The present record has been
reconstructed and does not contain the full ordersheets of the past.
15. However, there is some merits in the contention of the appellant
that if the claim petition was pending since 1981 i.e. for almost 18 years
the full delay could not be attributed to the appellant entirely.
Accordingly, I modify the Award to the extent it directs interest @ 12%
per annum only for the period of seven years and increase the period of
interest from 7 years to 12 years @12% per annum.
16. It is lastly urged by the learned counsel for the appellant that
compensation for pain and agony of only Rs.15,000/- has been given.
Reliance is placed on a judgment of the Supreme Court in Amar Singh
vs. Ishwar and Others, 1999(3) TAC 10 (SC) and Nagappa Mahadev
Doddaamani vs. New India Assurance Co.Ltd. and Anr. 1999(3) TAC
197 to contend that much higher amount should have been given for pain
and loss.
17. The Award shows that the appellant suffered abrasion on forehead
and nasal bridge swelling and tenderness, right hand abrasion, shift of
femur. He also had shortening of leg by 2" amounting to 50% permanent
disability. He was on leave from 29.8.1980 to 24.8.1981.
18. In Amar Singh vs. Ishwar and Others (supra) there was a case
where the claimant had undergone hospitalisation for more than three
years. For pain, shock and sufferings he was awarded only Rs.50,000/-.
The Supreme Court enhanced it to Rs.1,00,000/-.
19. In the light of the above legal position and keeping in view the
nature of injuries suffered by the appellant, I enhance the compensation
payable to thr appellant for pain and agony from Rs.15,000/- to
Rs.75,000/-.
20. The total compensation hence now payable to the appellant comes
as follows.
Pain, shock and suffering Rs.75,000/-
Expenditure on fracture, Rs.53,000/-
medicine, conveyance and
special diet etc.
Loss for permanent Rs.1,51,200/-
disability
Increment and honorarium Rs.1640/-
loss
Total Rs.2,80,840/-
21. In addition, the appellant would be entitled to interest @8% per
annum from the date of filing of this appeal till the date of payment on
the additional amount as awarded by this Court. This amount is in
addition to the interest @12% per annum that the appellant would be
entitled to for a period of 12 years from the date of filing of the claim
petition till the claim petition was disposed of. The appeal stands
disposed of.
22. The respondent No.4 insurance company may deposit the enhanced
compensation amount within six weeks from today before the Registrar
General of this High Court. On deposit of the amount, same shall be
released to the appellant.
(JAYANT NATH)
JUDGE
MAY 28, 2015
n
