Delhi High Court
The New India Assurance Co Ltd. vs Virender & Anr. on 12 August, 2016
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 12, 2016
+ FAO 317/2016 & C.M.25006/2016
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. J.P. N Shahi, Advocate
versus
VIRENDER & ANR .... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned order of 13th May, 2016 directs payment of
compensation of `2,12,650/- with interest on the ground of the injuries
suffered by the respondent-claimant. The medical certificate on record
reveals that upon total hip replacement of the right hip due to united
fractures, shaft femur (L), the permanent disability has been assessed at
70%. On account of medical bills, compensation granted is `2,12,650/-.
The challenge to the impugned order in this appeal on behalf of the
appellant-insurer is on the ground that the functional disability is infact
35% and this has not been taken into consideration and that the
compensation of `2 lacs odd towards medical bills is unjustified. To
submit so, reliance has been placed upon Supreme Court's decision in Raj
Kumar v. Ajay Kumar and Another (2011) 1 SCC 343. It is also
contended that the plea qua the disability certificate could not have been
taken in the written statement because the disability certificate is of 11 th
February, 2016.
Upon hearing and on perusal of impugned order and the material
on record, I find that no basis has been laid for arriving at a conclusion
that the functional disability is 35%. Pertinently, it is not even the stand
of appellant-insurer in the written statement before the trial court that the
functional disability is 35%. Similarly, in the written statement, there is a
bald denial of respondent-claimant spending `6 lacs on the medical
treatment.
To say the least, mere denial is not sufficient. It is not the case of
appellant-insurer that the medical bills placed on record by the
respondent-claimant are forged, fabricated or bogus.
During the course of hearing, appellant's counsel had submitted
that neither issues were framed nor any evidence was led. Taking into
consideration the stand of the appellant-insurer in the written statement, I
find that there was no requirement of putting this case to rigmarole of
trial by framing the issues or allowing the leading of any evidence in this
case.
The appellant ought to have obtained expert opinion certifying that
the functional disability is 35%. In the absence of any such proof, this
plea cannot be accepted. Reliance placed upon Supreme Court's decision
in Raj Kumar (supra) to put the burden on the Motor Accident Claims
Tribunal to assess the functional disability is of no assistance to the case
in hand because the cited decision deals with the case under the Motor
Vehicles Act, 1988. However, the effect of permanent disability on the
earning capacity of the injured has to be seen and quantified in terms of
money. The illustration given in paragraph No.14 in Raj Kumar (supra)
throws light as to how the impact of permanent disability can be seen.
In the light of the decision in Raj Kumar (supra), this Court has
gone through the impugned order, copy of the written statement of
appellant filed before the learned Commissioner and the Disability
Certificate and finds that the respondent-injured was working as a
Cleaner on the tanker-truck when he had sustained the injuries leading to
total hip replacement of right hip due to united fracture of shaft femur (L).
In the absence of expert opinion forthcoming from the appellant
regarding the extent of functional disability, this Court is left with no
option except to take a judicial notice of the fact that the tanker-truck
cleaner would be seriously handicapped in doing the cleaning work on
the tanker-truck and the extent of functional disability would be no less
than permanent disability as reflected in the disability certificate. Thus,
finding no substance, this appeal and the application are dismissed with a
rider that the question of mode of assessment of functional disability is
left open to be considered in a appropriate case.
(SUNIL GAUR)
JUDGE
AUGUST 12, 2016
s
