Delhi High Court
Oriental Insurance Co. Ltd. vs Balram Yadav & Ors. on 31 May, 2016
$~R-125
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31.05.2016
+ MAC.APP. 62/2008
ORIENTAL INSURANCE CO. LTD.
..... Appellant
Through Mr. Amit Gaur, Adv.
versus
BALRAM YADAV & ORS.
..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The first respondent (claimant), then aged about 45 years, employed
in Delhi Police but on deputation with Intelligence Bureau in the Ministry of
Home Affairs suffered injuries in a motor vehicular accident that occurred
on 28.02.2005 involving driving of Tata tempo bearing registration No.DL
1LB 9663 (offending vehicle) admittedly insured against third party risk for
the period in question with the appellant insurance company (insurer). He
filed an accident claim case (CS No.121/2007) on 24.10.2005 seeking
compensation under Sections 166 & 140 of Motor Vehicles Act, 1988 (MV
Act). On the basis of inquiry, by judgment dated 01.11.2007, the motor
accident claims tribunal (tribunal) upheld the case of the claimant about
injuries having been suffered and he having been rendered permanently
disabled to the extent of 25%. These findings have since attained finality as
the same were not challenged further. The tribunal awarded compensation
in the sum of `8,86,655/- with interest in favour of the claimant and directed
the insurer (appellant) to pay, the amount having been calculated thus :
(Rupees)
(i) Pain and suffering 50,000/-
(ii) Reimbursement of Medical expenses 23,789/-
(iii) Special diet 20,000/-
(iv) Conveyance 10,000
(v) Loss of income 92,866/-
(vi) Expenses for future treatment 35,000/-
(vii) Compensation for permanent disability 6,30,000/-
(viii) Loss of enjoyment and amenities 25,000/-
------------------------
TOTAL COMEPENSATION Rs.8,86,655/-
------------------------
2. The insurer is in appeal questioning the awards under the heads of
pain & suffering, loss of income, compensation for permanent disability and
expenses for future treatment.
3. Arguments have been heard. Tribunal's record perused.
4. It is noted that the injuries suffered by the claimant included three
fractures between knee to waist, injuries of the left foot, the surgical
procedures and treatment undergone having resulted in iron plates being
inserted in his left leg and thumb and two toes of the left foot having been
amputated rendering him permanently disabled. A board of doctors of Dr.
Ram Manohar Lohia Hospital, New Delhi, by certificate (Ex.PW1/62) dated
04.04.2006 declared that he is a case of amputation of great toe, second and
third toe through METARSO phalangeal joint of left foot with old united
fracture of left femur with ½ shortening, thereby rendering him permanently
disabled to the extent of 25% in relation to whole body.
5. The claimant at the time of the injuries being suffered was employed
in police force. It is inherent in the nature of job undertaken that he would
be expected to always remain physically fit. Disability obviously is not
acceptable to the rigor of the duties required to be performed in police
service.
6. In these circumstances, the assessment made by the tribunal in
accepting the extent of functional disability to the extent of 25%, cannot be
faulted even though no witness had been examined to prove the effect on
promotional avenues.
7. The objection against the award of loss of income is raised on the
ground that it was not proved whether the leave of 199 days for which the
compensation was granted by the tribunal was paid leave or unpaid leave.
The absence of clarity in this regard in the evidence, in the opinion of this
Court, is inconsequential. A government employee enjoys the privilege of
leave to be availed as per his convenience and for his own needs or pleasure.
Spending leave on medical treatment for injuries in a motor vehicular
accident cannot conceivably be called a choice he exercised voluntarily.
The loss of leave account, it being of value, thus had to be suitably
compensated.
8. The insurer questions the award of Rs.35,000/- towards future
medical expenses but ignores the fact that this was on the basis of evidence
of Dr. S C Sood (PW3) and Dr. Amit Kumar (PW5). Given the nature of
injuries suffered, neither the said award towards future treatment nor the
damages on account of pain & suffering can be said to be exaggerated.
9. Thus, the appeal is unmerited and liable to be dismissed.
10. By order dated 20.02.2008, stay against the enforcement of the award
only to the extent of Rs.92,866/- (loss of income) was granted. The said
interim order was made absolute on 09.11.2009 with further condition that
in the event of the appeal being dismissed, the said amount would be
payable with such higher interest as may be considered proper by the Court.
11. In view of the above conclusions, the interim stay is vacated. It is
directed that the balance amount of the compensation awarded by the
tribunal shall now be paid by the appellant with interest at 12% per annum
from the date of filing of the petition till complete satisfaction of the award.
The insurer (appellant) is directed to pay the balance amount in terms of this
modification by requisite deposit with the tribunal within 30 days of this
judgment making it available to be released to the claimant.
12. Statutory deposit, if made, shall be refunded after the award has been
fully satisfied.
13. The appeal is disposed of in above terms.
14. A copy of this judgment shall be sent to the claimant by registered
post at his given address.
(R.K. GAUBA)
JUDGE
MAY 31, 2016/VLD
