Dr.Rajiv Jain vs Parveen Kumar & Anr.
2016 Latest Caselaw 585 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: 27th January, 2016

+      MAC.APP. 384/2005
       DR.RAJIV JAIN                                        ..... Appellant
                          Through        Ms. Aruna Mehta, Adv.
                          versus
       PARVEEN KUMAR & ANR.                               ..... Respondents
                          Through        None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                          JUDGMENT

R.K.GAUBA, J (ORAL):

1. The appellant suffered injuries in a motor vehicular accident on 11.12.2002 at about 4 PM near Amba Cinema, Clock Tower on road to CC Colony involving bus bearing registration No.DL 1PB 0781 ("the offending vehicle") statedly driven by Naresh Kumar, who was arrayed as first respondent in the claim petition, registered as 137/03 before the Motor Accident Claims Tribunal ("the Tribunal"), in a rash/negligent manner. The offending vehicle was admittedly owned by the first respondent herein and was concededly insured with the second respondent herein against third party risk for the period in question. The appellant took out claim petition under Sections 166 read with Section 140 of Motor Vehicles Act, 1988 ("MV Act") for the injuries thus suffered claiming that he had suffered permanent disability inasmuch as due to the crush injuries, the big toe, and the toe next to it, of his right lower limb had to be amputated. The Tribunal by judgment dated

07.01.2005 awarded compensation in the sum of ₹6,27,000/- with interest payable at 6% per annum from the date of filing of the petition till realisation.

2. The appellant felt aggrieved with the quantum of compensation awarded and, thus, preferred the appeal in May, 2005. He has spent almost 11 years in this Court seeking enhancement but not prosecuting the appeal diligently. The appeal was dismissed, at least twice, once on 28.01.2008, and then on 01.04.2013. Steps for service were not taken timely and the matter remained hanging fire on the board of the Registrar for such purposes. Applications were filed for additional evidence to be adduced but then no timely or effective steps were taken. After examining one witness (AW-1) in the opportunity given for additional evidence, the statement was made on 23.03.2010 to the effect that no further evidence shall be adduced but thereafter another application was moved for the said opportunity to be again renewed.

3. Be that as it may, the grievances of the appellant are essentially that he has not been appropriately compensated for the leave of absence from his official duties which he had to avail on account of injuries suffered and for the treatment required to be taken in such regard. The appellant also submits through the appeal at hand that after the award by the tribunal he had to undergo further medical treatment and, thus, the future medical expenses will have to be reimbursed. His further grievance is that he had been denied the benefit of compensation for the expenses incurred on availing the services of a private driver inasmuch as due to the disability it has been rendered difficult for him to move around.

4. In the impugned judgment, the tribunal noted that the appellant is

a general medical practitioner (physician) by avocation. His income was assessed at ₹22,000/- per month (net). At the time of the accident he was 43 years old. The tribunal found the disability on account of amputation of the two toes to be permanent to the extent of 10% functional disability and concluded that he was entitled to compensation for loss of future earning capacity to the tune of ₹3,96,000/-. The appellant had staked a claim for compensation on account of medical leave availed in the aftermath of the accident. The Tribunal, however, found that the documents submitted in support were of doubtful character. The appellant had not mustered any evidence from the department of New Delhi Municipal Council (NDMC) where he has been employed as a medical officer. It was in these circumstances that the Tribunal rejected his contention that he had remained on leave without pay for a period of 1 ½ years.

5. During the pendency of this appeal, under the directions of this Court on appellant's request, additional evidence has been adduced, on the subject of leave availed, through Satinder Narula (AW-2) an official of the Health Department of NDMC. The witness proved a statement of leave account (Ex.AW-2/1), indicating at the instance of the appellant, that he had availed of leave of absence to the extent of 418 days. This Court, upon perusal of the document (Ex.AW-2/1), is appalled to note that the appellant seeks to claim compensation on account of leave availed in an accident in December 2002, by referring to the leave taken from February, 2002 onwards. On being asked to justify as to why reference has been made to the same and evidence has been led about the leave taken during the period anterior to the date of accident, no satisfactory answer was given by the counsel for the appellant. This,

thus, turns out to be a dishonest claim. At least, the learned counsel for claimant should have been more circumspect in tendering evidence to such effect before the Court.

6. On perusal of the evidence adduced before the Tribunal and also before this Court, it is found that the appellant has failed to adduce any material on record in support of the claim that the leave taken, as shown by the document (Ex.AW-2/1), was on account of the injuries suffered in the accident which is the subject matter of the case at hand. Merely because the appellant had taken leave of absence from office does not mean all leave would be on account of the injuries suffered in the accident or for the purposes of treatment taken in such respect. It was appellant's onus to prove that the various spells of leave of absence were for reasons attributable to the injuries suffered in the accident in question. No such evidence has been adduced. Mere submission of a statement of leave account, in these circumstances, cannot be taken as discharge of the burden by the appellant.

7. This Court, therefore, finds no good reasons to award any further compensation on the subject of loss on account of leave taken beyond what was awarded by the Tribunal.

8. The appellant has sought to prove the additional expenditure incurred on medical treatment through the statement of Keshav Kumar (AW-1), a record keeper of the private hospital Medanta, Gurgaon. The said witness proved discharge summary dated 24.02.2010 (mark A) and bills (mark B to J) which, according to the counsel, showed additional expenditure of ₹1,98,223/-. But, as pointed out by the learned counsel for the respondent insurance company, the discharge summary (mark A) reveals the surgical procedure undergone in March 2010 to be for

excision of unstable scar right foot and free ALT flap cover, on the basis of diagnosis to the effect that the appellant was suffering from unstable scar over right foot with chronic non-healing ulcer for the lost six years.

9. The afore-mentioned document (mark A) does not show that the condition of ulcer had developed as a result of the injuries suffered or due to the amputation of the two toes of the right foot or any complications having developed over and above what was noticed by Dr. B C Jain (PW-6) who had examined and treated the appellant immediately after the injuries suffered in the accident. There is no medical evidence brought on record to prove connection of further treatment with the accidental injuries. Thus, there is no case made out for any further compensation to be awarded on account of medical expenses incurred after the date of award.

10. The Tribunal, by the impugned judgment, took into account the need to compensate on account of pain and sufferings and permanent disability with consequent needs for special diet, attendant charges, conveyance etc. Since suitable awards were made under all the said heads, there is no justification for any further compensation to be awarded or for facilitating a private driver to be engaged by the appellant.

11. For the foregoing reasons, the appeal is found devoid of substance. Dismissed.

R.K. GAUBA (JUDGE) JANUARY 27, 2016 VLD