Delhi High Court
Gyan Prakash Verma vs O.P. Banwari & Ors on 21 August, 2017
$~R-128
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st August, 2017
+ MAC.APP. 538/2009 and CM APPL.15522/2009
GYAN PRAKASH VERMA ..... Appellant
Through: Nemo
versus
O.P. BANWARI & ORS ..... Respondents
Through: Mr. Kanwal Chaudhary, Adv.
for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant was riding motorcycle on 29.07.2004 when it
came to be involved in a collision with Maruti Esteem car bearing
registration No.DL-4CF-5482 in the area of Red Cross Road, Near
Mazar, PTI Building, New Delhi resulting in he falling down and
suffering injuries. He filed accident claim case (Petition No.64/2004)
on 16.03.2004 seeking compensation from the respondents on the
allegations that the first respondent was negligent in driving the car,
the second respondent admittedly being the insurer of the offending
vehicle against third party risk for the period in question.
2. The Tribunal held inquiry and, by judgment dated 09.09.2008,
returned finding that the accident had occurred due to negligence on
the part of the first respondent. The said finding has attained finality as
it was not challenged. The Tribunal awarded compensation in the
total sum of Rs.17,507/- fastening the liability on the insurer (the
second respondent) calling it upon to pay with interest @ nine per cent
(9%) per annum, the said amount inclusive of Rs.10,000/- towards
pain and suffering and Rs.7,057/- towards cost of medical treatment.
3. The claimant filed the present appeal seeking enhancement
expressing the grievance of compensation awarded being inadequate.
4. The appeal was put in the category of 'REGULARS' as per
order dated 08.04.2010. When it is taken up for hearing, there is no
appearance on behalf of the appellant. The matter has been heard with
the assistance of the learned counsel for the second respondent.
5. Record perused.
6. Indeed, the Tribunal has not awarded just and fair compensation
to the appellant. It fell into error by observing that the injuries were
simple in nature ignoring the fact that it had noted in para 9 that the
injuries included fracture of patella (right), fractured ulna (right) and
other fractures in the body. The multiple fractures suffered are duly
confirmed not only by the MLC (Ex.PW-1/3) but also by the discharge
summary (Ex.PW-1/18) issued by Ram Manohar Lohia Hospital
where the treatment was taken. The medical certificate (Ex.PW-1/17)
duly proved confirmed that the appellant was unable to resume duties
till 09.10.2003. There was, thus, a period of seventy one (71) days,
for which the claimant could not work. It may be that he would have
been paid salary by the employer. But then, there has been loss of
leave account since the claimant would be absent having availed leave
on medical grounds. The corresponding loss has to be compensated in
terms of money. Though, there is nothing on record to show that there
is any permanent disability, much less any treatment (requiring
expenditure) beyond 09.10.2003, given the nature of the injuries
suffered, the non-pecuniary damages on account of pain and suffering
are also deficient.
7. The claimant was working with TATA Consultancy Services
Limited, an official (PW-2) from his employer having proved not only
the leave account (Ex.PW-2/1) but also his pay slip (Ex.PW-2/3) for
the month of July, 2003. The income for the said period as is reflected
by the said document was in the sum of Rs.93,850/-. For the period of
leave of absence, it would come to (93850 / 31 x 71) Rs.2,14,946.77
rounded off to Rs.2,15,000/-.
8. Having regard to the multiple fractures suffered, the
compensation on account of pain and suffering is increased to
Rs.75,000/-. Adding the actual proven expenditure of Rs.7,057/-
incurred on account of medical treatment, the total compensation
comes to (2,15,000/- + 75,000/- + 7057/-) Rs.2,97,057/- rounded off to
Rs.2,98,000/-.
9. The award is modified accordingly. It shall carry interest as
levied by the tribunal.
10. The second respondent (insurer) is directed to satisfy the award
by requisite deposit with the tribunal within thirty (30) days from
today, making it available to be released to the claimant.
11. The appeal is allowed in above terms.
12. Pending application also stands disposed of.
R.K.GAUBA, J.
AUGUST 21, 2017
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