Ali Hasan Siddique vs Om Prakash @ Mukesh Chouhan & Ors
2017 Latest Caselaw 4465 Del

$~R-138
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Decided on: 25th August, 2017
+      MAC APPEAL No. 578/2009

       ALI HASAN SIDDIQUE                        . ..... Appellants
                     Through:         Mr. Yogesh Kumar Narula,
                                      Adv.
                          versus

    OM PRAKASH @ MUKESH CHOUHAN
    & ORS                              .... Respondents
                  Through: Mr. Kawal Chaudhary, Adv. for
                           R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                      JUDGMENT (ORAL)

1. On 17.6.2006, the appellant travelling in a bus had reached near Radhu Cinema. As he alighted from a bus, he was hit by tempo bearing registration no. HR 38D 9808 driven in a negligent manner causing him injuries including fractures of left upper limb. He instituted accident claim case (MACT 787/08/06) on 10.08.2006 impleading the driver, owner and insurer of the said offending vehicle, they being the first, second and third respondents respectively in this appeal.

2. The tribunal, after inquiry, rendered its judgment on 10.07.2009, accepting the case for compensation on principle of fault liability. The said finding has attained finality as it was never challenged by any of the respondents. By the impugned judgment, the

tribunal awarded total compensation in the sum of Rs.35,000/-, it being inclusive of non-pecuniary/general damages in the sum of Rs. 25,000/, damages on account of physical pain & torture at Rs.5,000/- and towards discomfort and inconvenience an amount of Rs. 5,000/-.

3. Feeling aggrieved with the meager sum awarded, the present appeal was filed which is resisted by the insurer on which the liability was fastened.

4. The appellant was a member of Delhi Police on the relevant date, this having been proved not only by his uncontroverted testimony but also supported by copy of the salary slip (Ex.PW-1/38) relevant for the month of June 2006. The evidence led by him, without much contest, had proved that after the accident he had been removed to GTB Hospital by the police control room van and therefrom he was shifted to Sir Ganga Ram Hospital where he received indoor treatment till 23.06.2006. During the treatment surgical procedures resulted in plates being inserted in his left elbow. The medical records (Ex.PW-1/1 to 1/10) and the leave certificate (Ex.PW-1/41), collectively read, reveal that the treatment had continued till he was declared fit on 2.11.2006 to resume duty.

5. The above clearly shows, as submitted by him, that claimant/appellant had to remain absent from duty for a period of 138 days, he being medically unfit for that duration. The tribunal has declined any award towards loss of income on account of leave or for any medical expenditure, for the reasons that the claimant continued to be entitled to receive salary and allowances from the department. On the assumption he would receive reimbursement, medical expenditure

that had been incurred in the process was also declined as part of compensation. It may be mentioned here that the documents (Ex.PW- 1/11 to 37) show the total medical expenditure to be to the extent of Rs. 73,311/- during the treatment up till 02.11.2006. It may further be added that the claimant had also proved the medical advice (Ex.PW- 1/42) to the effect that he would require to undergo eventually another surgical process for removal of the steel plates when he would be constrained to be absent from duty for minimum two weeks. The said medical advice also showed that the further medical treatment/procedure would result in additional expenditure of Rs. 40,000/- to be incurred. There is, however, no proof of any further medical/surgical procedure having been undergone or any such further expenditure having been incurred till date.

6. In the above facts and circumstances, in the opinion of this Court, it was most unfair on the part of the tribunal to deny to the claimant the benefit of value of the leave account to the extent it was subjected to erosion due to absence from duty for medical reasons arising out of the injuries suffered and also for the medical expenditure that was proved to have been incurred. Since the claimant had brought to the tribunal all the original documents showing such expenditure, it was not correct to proceed on the assumption that he was not entitled to compensation to such effect in this jurisdiction as he would otherwise be entitled to reimbursement from the department. It was his choice whether to seek reimbursement from the department where he is employed or as compensation under the tort liability. He having chosen the latter course, suitable award to that extent has to be

made. The loss of leave account is also of value and the same has to be compensated.

7. Having regard to the fact that the claimant had remained on leave of absence for 138 days and there is advice for further surgical procedure which would result in such loss at that stage to the extent of two weeks, the compensation on account of loss of income corresponding to the value of leave salary for such period (138 +14 days) 152 days deserves to be granted. This would mean leave equivalent of the salary for five months.

8. The salary accruing to the appellant at the relevant point of time was Rs. 10,160/-. Thus, loss of income in the sum of Rs. (10,160 x 5) Rs. 50,800/-, deserves to be added to the compensation. The medical expenditure proved through documents (Ex.PW-1/11 to 37) is in the sum of Rs. 73,311/-. The same is also added to the compensation as has been awarded. It is pointed out that the tribunal did not make any award under the heads of expenditure towards conveyance or special diet. The amounts of Rs. 10,000/- each under the said heads are added.

9. It is noted that the compensation in the sum of Rs. 35,000/- which was awarded under different levels is actually awards towards pain & suffering. Given the nature of injuries sustained and the prolonged treatment that was undertaken, the said award is inadequate, and, therefore, it is increased to Rs. 50,000/-.

10. The total compensation in the case thus, comes to (50,800 + 73,311 + 10,000 + 10,000 + 50,000) Rs. 1,94,111/-, rounded off to Rs. 1,95,000/- (Rupees One Lakh and Ninety Five Thousand Only). The

award is increased accordingly. It shall carry interest as levied by the tribunal.

11. The insurance company (third respondent) is directed to deposit the enhanced portion of the award with corresponding interest with the tribunal within thirty days making it available to be released. Upon such deposit being made, the same shall be released to the claimant in the form of interest bearing fixed deposit receipt to be taken out from a nationalized bank in his name for a period of five years with right to draw monthly interest.

12. The appeal is disposed of in above terms.

R.K.GAUBA, J.

AUGUST 25, 2017 nk