Delhi High Court
Jai Prakash vs Sanjeev Kumar & Ors. on 18 May, 2016
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:18th May, 2016
+ MAC.APP. 369/2007
JAI PRAKASH ..... Appellant
Through Mr. O P Mainnie, Adv.
versus
SANJEEV KUMAR & ORS. ..... Respondent
Through Mr. Ramesh Kumar, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appellant was 22 year old at the relevant point of time and was
driving motorcycle bearing registration No.DL 4S AG 5387 (the
motorcycle) on 28.12.2004, when it was involved in motor vehicular
accident with bus (RTV) bearing registration No.DL IVA 2634 (offending
vehicle) statedly driven in negligent manner. As a consequence, he suffered
multiple injuries including compound fractures of both bones of right leg,
loss of skin over right knee, deep wound over right knee, abrasions and blunt
injuries all over the body. He filed an accident claim case (petition
No.292/2006) on 14.11.2005 seeking compensation under Sections 166 &
140 of Motor Vehicles Act, 1988 (MV Act). In the said proceedings, the
driver, owner and insurer of the offending vehicle were impleaded as parties,
they now being first, second and third respondents respectively in appeal.
The tribunal held inquiry and, by judgment 23.02.2007, returned a finding
that the accident had occurred and the said injuries had been suffered by the
appellant (claimant) due to negligent driving of the offending vehicle. The
said finding, not challenged any further, has since attained finality. By the
impugned judgment, the tribunal awarded compensation in the sum of
Rs.1,63,540/- with interest at 9% per annum from the date of filing of the
petition directing the insurer (third respondent) to pay.
2. The appellant feeling dissatisfied, preferred the present appeal seeking
enhancement of the compensation, his prime contention pressed at the
hearing being that the loss of future income on account of disability suffered
was not properly considered and that the awards under the pecuniary and
non-pecuniary heads of damages are inadequate.
3. During the pendency of the appeal, on the prayer of the claimant (CM
No.13498/15) he was referred by order dated 26.11.2015 to the Medical
Superintendant of Doctor Hedgewar Hospital, Karkardooma, Delhi for a
fresh medical board to be constituted for the claimant to be examined and a
fresh assessment to be made as to the nature and extent of permanent
disability suffered by him. Pursuant to the said direction, the medical board
was constituted which included Dr. Sanjay Yadav Specialist Orthopedic
(AW1) affirming that the claimant suffers from permanent disability in the
right lower limb to the extent of 30%. The said certificate was duly proved
by Dr. Sanjay Yadav (AW1) in the course of liberty granted for additional
evidence to be adduced during the pendency of the appeal.
4. Arguments have been heard and record perused.
5. It is noted that the tribunal has awarded the compensation of
Rs.1,63,540/- it being inclusive of Rs.40,000/- granted towards pain &
injury, Rs.63,540/- towards medical expenses, Rs.15,000/- additionally for
future medical expenses, Rs.5,000/- towards conveyance and special diet
besides Rs.40,000/- on account of loss of pay and amenities. It is noted that
though the appellant had examined Dr. Gujral (PW3) under whom he had
remained for treatment after the accident, the evidence of the said witness
indicating that the claimant suffered physical impairment with chances to
aggravate was not properly considered by the tribunal, inasmuch as the
extent of disability was not even assessed nor any calculation made for loss
of consequent future earnings.
6. The counsel for the claimant has argued on the basis of judgment of
this Court in New India Assurance Co. Ltd. v. Anuj Sharma (2007) ACJ 640
that the evidence of PW3 bringing out that the claimant suffers from
permanent physical impairment to the extent of 44% should result in a
finding that he had suffered functional disability to the same extent. This
plea, however, cannot be accepted. The evidence of PW3 and AW1, read
together, shows that the claimant suffers from disability as an aftermath of
compound fractures of both bones of the right leg. The assessment of PW3
with regard to the nature and extent of disablement vide an undated
certificate (Ex.PW3/A) proved by him at the inquiry on 04.12.2006 was only
a tentative assessment. Since the claimant himself requested for a fresh
medical board to be constituted, its report having come on record vide
Ex.AW1/A, the said latter opinion will have to prevail.
7. In the opinion of the board of doctors given in January, 2016, the
disability assessed to the extent of 30% is in relation to the right lower limb.
As per the case of the claimant he was working in a private service he did
not disclose either in the pleadings or in the evidence, the nature of job
assigned to him by his employer. In the facts and circumstances of the case,
the extent of disability in relation to one lower limb cannot be treated as the
functional disability in relation to the whole body. In the opinion of this
Court, the award of loss of future income on the assumption that the
disability affecting earning capacity is 15% would suffice. The calculation
on this score, thus, are made afresh.
8. As mentioned earlier, the claimant had not even indicated the nature
of job he was carrying out in the private service. There is no strict proof
adduced as to his salary or allowances. He, however, affirmed on oath and
supported the claim by documents (Ex.PW1/108-111) to prove that he has
studied upto 12th standard and attained a national trade certificate in the
trade of instrument mechanic. Having regard to the minimum wages
payable during the relevant period, his claim in his deposition that he was
earning Rs.4,000/- per month from the private employer, thus, must be
accepted.
9. The claimant was born on 26.10.1982 (matric certificate,
Ex.PW1/109). Thus, on the date of the accident (28.12.2004) he was about
22 years and two months old in age. The loss of future earning is calculated
on the multiplier of 18. The compensation payable under the said head is,
thus, calculated as (4,000 x 15 ÷ 100 x 12 x 18) Rs.1,29,600/- rounded off to
Rs.1,30,000/-.
10. As mentioned earlier, the tribunal had awarded Rs.40,000/- as
composite sum for loss of pay and amenities. It is improper to mix up the
said two heads in the manner done. Thus, the amount of Rs.40,000/-
included in the award by the tribunal is treated as damages for loss of
amenities.
11. It is pointed out by the counsel for the appellant that the evidence
shows that the claimant had remained under treatment from 28.12.2004 to
10.01.2006 for about one year and could not resume duties with his
employer. In these circumstances, the loss of income for the said period is
additionally granted at (4,000 x 12) `48,000/-.
12. The counsel for the claimant submits that the tribunal should also
have kept in mind that the claimant was a bachelor, and, as a result of the
permanent handicap suffered, there is loss of marriage prospects, also
suffered and it merited damages to be awarded. Having regard to the facts
and circumstances of the case, the date of accident and the nature of
injuries/handicap suffered, the award in the sum of Rs.25,000/- for loss of
marriage prospects is added.
13. In above view, the total compensation in the case comes to (1,63,540
+ 1,30,000 + 48,000 + 25,000) `3,66,540/- rounded off to Rs.3,67,000/-. It
is directed that the enhanced award shall also carry interest as levied by the
tribunal. The award is modified accordingly. The insurer is directed to pay
the requisite amount in terms of the modified award, after adjusting the
amount already paid, by a requisite deposit with the tribunal within 30 days
making it available to be released to the claimant.
14. The appeal is disposed of in above terms.
15. Dasti.
R.K. GAUBA
(JUDGE)
MAY 18, 2016/VLD
