Delhi High Court
Shashi vs Bhushi Kumar & Ors. on 11 December, 2017
$~R-686
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th December, 2017
+ MAC. APP. 1267/2012 and CM APPL.30666/2015
SHASHI ..... Appellant
Through: Nemo.
versus
BHUSHI KUMAR & ORS. ..... Respondents
Through: Mr. Arun Yadav, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant was the claimant before the motor accident claims
tribunal in an accident claim case (Suit No.176/10) instituted by her on
24.04.2010, it having resulted in judgment dated 30.11.2011, whereby
compensation in the total sum of Rs.2,69,500/- was awarded in her
favour with interest @ 7.5% per annum, the liability having been
fastened on the third respondent (insurer), it having admittedly issued
the insurance policy covering third party risk in respect of the vehicle,
the negligent driving of which was found to have given rise to the
cause of action.
2. The tribunal awarded the compensation, calculating it thus:-
Sl.No. Heads Amount (in Rs.)
1. Medicines and medical treatment 6,500/-
2. Loss of earning capacity due to 1,20,000/-
disability
3. Loss of amenities of life 75,000/-
4. Pain and suffering 50,000/-
5. Conveyance 10,000/-
6. Special Diet 8,000/-
Total 2,69,500/-
3. It may be added here that the tribunal noted that the claimant
had suffered injuries in his left upper limb which had rendered her
permanently disabled, such physical impairment having been certified
by Ex.PW-2/A by a board of doctors of G.T.B. hospital, Govt. of NCT
of Delhi to be permanent and 90% in relation to the said part of the
body. The tribunal took it to be a case of functional disability to the
extent of 25% and granted the award accordingly.
4. The appeal at hand was filed by the claimant with the grievance
that the compensation awarded is inadequate and, thus, seeking
enhancement.
5. The appeal was put in the list of 'Regulars' to come up on its
own turn as per order dated 18.01.2016. When it is called out in its
own turn, there is no appearance on behalf of the appellant (claimant).
6. The learned counsel for the insurer has been heard and with his
assistance record perused.
7. It may be mentioned here that the appellant had moved an
application under Order XLI Rule 27 of the Code of Civil Procedure,
1908 (CPC) seeking opportunity to lead additional evidence and
recall of Dr. Puneet Mishra (PW-2) who had been examined earlier
during the course of inquiry before the tribunal. This application was
resisted by the insurance company and kept pending to be considered
in the light of the above facts and circumstances of the case as per
order dated 18.01.2016.
8. It is noted that the claimant was 46 years' old on the relevant
date when she sustained injuries, the nature whereof is described in
discharge summary (Mark 'A') of Lady Hardinge Medical College &
Sucheta Kriplani Hospital, New Delhi where the treatment was
undertaken, to be in the nature of open elbow dislocation with radial
nerve palsy. The treatment administered included debridement and
external fixations. Dr. Puneet Mishra (PW-2) one of the members of
the medical board, during the course of his testimony, has stated that
the disability suffered would be one-fourth in relation to the entire
body. It is on that basis that the tribunal took it to be a case of
functional disability to the extent of 25%. The medical officer having
explained his assessment in the above manner, there would be no
purpose served for he to be recalled for any further testimony. The
request to that effect is, thus, declined.
9. There is no error or infirmity in the view taken by the tribunal
on the extent of functional disability.
10. The award under various heads is found to be just and adequate.
Therefore, the appeal and the pending application are dismissed.
R.K.GAUBA, J.
DECEMBER 11, 2017
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