Delhi High Court
Sakender vs Ghanshyam & Ors. on 12 December, 2017
$~R-699
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th December, 2017
+ MAC. APP. 1296/2012
SAKENDER ..... Appellant
Through: Nemo.
versus
GHANSHYAM & ORS. ..... Respondents
Through: Mr. Shoumik Mazumdar, Advocate
for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant had suffered injuries in a motor vehicular
accident that had occurred on 18.12.2009, due to negligent driving of
motor vehicle described as bus, bearing registration No.DL-1PA-1753,
admittedly insured against third party risk for the period in question
with the third respondent (insurer). He instituted accident claim case
(Suit No.409/10) on 14.07.2010, seeking compensation.
2. The claim was based, inter alia, on the plea that the appellant
(claimant) had suffered permanent physical impairment, such
condition having been assessed by a board of doctors of All India
Institute of Medical Sciences (AIIMS) to be permanent disability to
the extent of 43% in relation to right lower extremity, it having arisen
out of fracture of the superior and inferior pubic rami right with type
two sacral fracture (Ex.P-1).
3. The tribunal, by judgment dated 07.05.2012, held that the
claimant was entitled to compensation because the accident had
occurred due to negligent driving of the bus by the first respondent
(the driver), he along with second respondent (the owner of the bus)
being consequently held liable, jointly and severally, to pay
compensation. The tribunal awarded compensation in the total sum of
Rs.2,98,000/-, calculating it thus:-
Sl.No. Heads Amount (in Rs.)
1. Compensation for medical expenses 78,000/-
2. Compensation for pain and sufferings 75,000/-
3. Conveyance for conveyance 10,000/-
4. Compensation for special diet charges 10,000/-
and attendant charges
5. Compensation for permanent disability 1,25,000/-
and loss of income/amenities
Total 2,98,000/-
4. The direction to pay the said amount with interest @ 7.5% per
annum was issued to the insurer, though upon its plea about terms and
conditions of the insurance policy having been breached, it was
granted recovery rights against the said driver and owner (the first and
second respondents).
5. The appeal at hand was filed by the claimant seeking
enhancement, his prime grievance being that the award of
compensation is deficient for the reason the tribunal failed to give any
damages under the head of future loss of income on account of
disability, there being no award under the head of attendant charges or
disfigurement, the non-pecuniary heads of damages covered in the
relief so granted also being on the lower side.
6. The appeal was put in the list of 'Regulars' to come up on its
own turn as per order dated 25.02.2016. When it is called out in its
own turn, there is no appearance on behalf of the appellant (claimant).
The learned counsel for the insurer, who only appears, has been heard.
Record perused.
7. It appears the tribunal short-shrifted the issue of functional
disability. It took note of the disability certificate (Ex.P-1) to proceed
to grant a lump sum amount of Rs.50,000/- for loss of income arising
from such condition. The claimant had examined himself (PW-1) and
also Dr. Gaurav Sharma (PW-2) who deposed with reference to the
disability certificate. There is no discussion in the impugned
judgment on the effect of physical impairment suffered, on the
functional capability of the claimant. This cannot be accepted. In
these circumstances, the proper course is for the matter to be
remanded to the tribunal for appropriate adjudication.
8. Ordered accordingly.
9. Thus, the impugned judgment in so far as it determined the
compensation payable to the claimant (appellant) is set aside. The
matter to that extent is remanded to the tribunal for fresh adjudication.
10. The parties are directed to appear before the tribunal on 12th
February, 2018.
11. It is noted that when the appeal was entertained, notice was
issued, by order dated 20.12.2012 only to the third respondent. Since
recovery rights were granted against first and second respondents, in
all fairness, the said first and second respondents would also deserve
to be heard in the matter of claim for enhanced compensation. Further,
since the claimant has not appeared at the final hearing on the appeal,
it would be proper that the tribunal takes appropriate steps to secure
his presence in the remand proceedings. For these reasons, it is
directed that the tribunal before proceeding further shall issue court
notices to the claimant and also to the first and second respondents.
12. The amount received by the claimant in terms of the judgment,
which has been set aside will be liable to be adjusted against the fresh
adjudication.
13. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
DECEMBER 12, 2017
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