Delhi High Court
Montu Singh vs Vinod Kumar Yadav & Ors on 29 March, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 29th March, 2016
+ MAC.APP. 460/2012
MONTU SINGH ..... Appellant
Through Mr. O P Mannie and Mr. Manish
Maini, Advs.
versus
VINOD KUMAR YADAV & ORS ..... Respondent
Through Mr. A K Soni, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appellant had suffered injuries in a motor vehicular accident that
occurred at about 1.30 PM on 27.11.2009 involving a collision between a
motorcycle bearing registration No.DL 9SM 5467 (motorcycle) driven by
him on one hand and a water tanker bearing registration No.DL 1GB 6819
(offending vehicle) on the other. There were two other persons travelling on
the motorcycle, each of whom suffered injuries, one (Suresh) dying in the
result. Three claim petitions were brought before the motor accident claims
tribunal (tribunal) including one (MACT case No.34/2010) preferred by the
appellant on 05.02.2010. All the three cases were inquired into and decided
by a common judgment dated 12.08.2011.
2. On the petition of the appellant, compensation in the sum of
`1,06,400/- was granted, it having been calculated thus :
a) Medicines & Treatment = Rs. 10,000/-
b) Loss of Income = Rs.26,400/-
c) Pain and Suffering = Rs. 50,000/-
d) Conveyance & Special Diet = Rs. 20,000/-
TOTAL = Rs.1,06,400/-
(Rupees One Lac Six Thousand Four Hundred Only)
3. Since the offending vehicle was insured against third party risk for the
period in question, the third respondent herein (the insurer) was directed to
satisfy the award.
4. The appellant has come up in appeal seeking enhancement of the
compensation, inter alia, pleading that he had suffered permanent disability.
Since no evidence was adduced to this effect before the tribunal, the
claimant having pleaded that he was able to procure necessary confirmation
by disability certificate later, on his request under Order 41 Rule 27 of Code
of Civil Procedure, 1908 (CPC), he was allowed to lead additional evidence
during the pendency of the appeal. Pursuant to the said liberty granted, he
examined Dr. K. K. Kumra (PW1), Chief Medical Officer of Deen Dayal
Upadhyay Hospital of Govt. of NCT of Delhi to prove the disability
certificate dated 07.04.2012 (Ex.PW1/1) affirming that the appellant suffers
from post traumatic stiffness of right hand with permanent disability of 43%
of right upper limb.
5. The main ground pressed in appeal by the claimant is for award of
compensation towards loss of future income on account of permanent
disability. The counsel for the claimant further submitted that the claimant
also deserves award under the head of loss of amenities of life due to
disability.
6. During the inquiry before the tribunal it was proved that the appellant
had suffered fracture of shaft of right humerus and fracture of fourth
metacarpal bone of the right upper limb. It was also proved that he had to
undergo a surgical procedure wherein a steel plate was initially inserted and
bone grafting done. The disability certificate (Ex.PW1/1) shows that he has
suffered permanent adverse effect on the use of the said right upper limb as
the post traumatic stiffness would restrict the movement rendering him
disabled to the extent of 43% in relation to the said part of the body.
7. The moot question to be addressed in these circumstances is as to
what would be extent of functional disability resulting from the said
permanent disability of the right upper limb. On perusal, it is found that in
the petition, the appellant had stated that he was engaged in a private job
earning Rs.6,000/- per month. This was the line he took when he tendered
his evidence through affidavit (Ex.PW2/A). Noticeably, he would not
clearly describe the nature of job in which he was engaged. Since he was
unable to prove the nature of avocation or the earnings resulting therefrom,
the tribunal assumed his income on the basis of minimum wages of
Rs.4,377/- rounded off to Rs.4,400/-.
8. It is in the appeal for the first time that the claimant stated that he was
engaged in the job of a foreman/machine operator. Though he has brought
in the medical opinion through AW1 about the extent of disability, he did
not offer any evidence to strictly prove such nature of avocation or the effect
of disability on the job he is required to perform to earn his livelihood.
Having regard to the overall facts and circumstances, in the considered
opinion of this Court, the functional disability may be assessed to the extent
of 20% in relation to the whole body and on that basis the loss of future
income can be compensated. As per the disability, the claimant was 29
years old in April, 2012. Since the accident had occurred in November,
2009, he would have been over the age of 26 years at the relevant point of
time. Thus, while assessing the loss of future income the multiplier of 17
deserves to be adopted.
9. The loss of income on account of disability (20%) would be (4400 x
20 ÷ 100) Rs.880/-, thus, the total loss of future income is computed at (880
x 12 x 17) Rs.1,79,520/- rounded off to Rs.1,80,000/-. Having regard to the
facts and circumstances, an amount of Rs.30,000/- is added towards loss of
amenities of life. Thus, the compensation awardable in the case is enhanced
by Rs.2,10,000/-.
10. Needless to add, the enhanced portion of the compensation shall carry
interest at the rate of 9% per annum from the date of filing of the petition till
realization. The insurer is directed to deposit the enhanced portion of the
compensation with the tribunal within 30 days whereupon it shall be
released to the claimant after being invested in fixed deposit receipt in a
nationalized bank in his name initially for a period of seven years with right
to draw monthly interest.
11. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 29, 2016
VLD
