Delhi High Court
Khem Chand Ramola vs Sunder Lal & Ors on 9 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: February 09, 2017
+ MAC.APP. 165/2008
KHEM CHAND RAMOLA ..... Appellant
Through: Mr. Roshan Saini, Advocate
versus
SUNDER LAL & ORS .....Respondents
Through: Mr. Pankaj Seth, Advocate for
respondent-insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned Award of 1st December, 2007 grants compensation of
`8,21,600/- with interest @ 7% per annum to appellant, who was injured
in a road accident on 2nd March, 2006, resulting in functional disability,
which has been assessed at 60% by Motor Vehicle Claims Tribunal
(hereinafter referred to as Tribunal). The facts of this case are already
noted in impugned Award and so, need no reproduction. Suffice to note
that appellant was aged 22 years on the day of this accident and a
matriculate and was a commercial driver by profession. Appellant's
income has been assessed on minimum wages and period of his
hospitalization of more than three months has been taken into
consideration by learned Tribunal. The disability has not been taken to be
100% in the absence of any evidence of a medical expert. The breakup of
compensation awarded by learned Tribunal is as under: -
1. Medical expenses `2,00,000/-
2. Loss of earning `26,600/-
3. Disability `4,70,000/-
4. Special diet, conveyance `45,000/-
and attendant charges
5. Pain and sufferings `50,000/-
6. Loss of amenities of life `30,000/-
Total `8,21,600/-
Apart from the evidence of appellant/injured and other formal
witnesses, there is deposition of Paramjeet Singh (R3W1), who was the
employer of appellant/injured, regarding payment of appellant's hospital
bills to the tune of `3,30,000/- to Vinayak Hospital. On the basis of
evidence led, impugned Award has been rendered.
This appeal is directed against Insurer-respondent No.3. The
precise submission of appellant's counsel is that due to amputation of
right leg of appellant, he has lost his job of a commercial driver and is
unable to move without support and so, appellant's disability ought to be
taken as 100%. Attention of this Court is drawn by appellant's counsel to
a Disability Certificate, which is undated and was issued by Vinayak
Hospital in Noida. It indicates that appellant had undergone amputation
of right leg above knee. It is submitted that in view of this Disability
Certificate, the compensation granted ought to be reasonably enhanced. It
is next submitted by appellant's counsel that addition of 50% ought to
have been made towards 'future prospects' as drivers nowadays are
earning very well. It is further submitted by appellant's counsel that the
medical expenses incurred by appellant were beyond `5 lacs and
appellant still continues to incur medical expenses and that he is getting
financial help from various persons and the loans taken by him from such
persons for treatment, need to be repaid and so, medical expenses of at
least `5 lacs be granted to appellant.
Lastly, it is submitted by appellant's counsel that the compensation
granted under the non-pecuniary heads needs to be suitably enhanced. To
seek enhancement of compensation, reliance is placed by appellant's
counsel upon a decision of a co-ordinate Bench of High Court of Gujarat
in Punambhai Khodabhai Parmar v. G. Kenel Construction and Another,
1984 A.C.J. 739 and a decision of a co-ordinate Bench of this Court in
MAC.APP. 833/2012 titled Reliance General Insurance Co. Ltd. v.
Suman Jee Jha & Ors., rendered on 24th October, 2016.
Learned counsel for respondent-insurer supports impugned Award
and submits that just and fair compensation has been already granted and
the enhancement sought in this appeal is unwarranted for the reason that
there are no supporting documents to show the extent of disability
suffered and there is no basis to seek enhancement of compensation
including medical expenses. It is also submitted by learned counsel for
respondent-insurer that the compensation granted under the non-
pecuniary heads is reasonable and needs no further enhancement. Nothing
else is urged by either side.
Upon hearing and on perusal of impugned Award, evidence on
record and the decisions cited, I find that for assessment of 'loss of
income' and computation of the medical expenses incurred in an injury
case is granted in each case on its own facts. Merely because `9 lacs odd
has been granted towards 'loss of future income' in a case of Suman Jee
Jha (supra) would not have any precedential value. Likewise, decision in
Punambhai Khodabhai (supra) is of no avail for the reason that the
factual aspects on the basis of which compensation has been assessed are
not fully spelt out. Pertinently in Punambhai Khodabhai (supra), the
criterion under the Workmen's Compensation Act has been applied. Even
in impugned Award, learned Tribunal has assessed the functional
disability at 60% by applying the parameters spelt out in the Workmen's
Compensation Act and rightly so, because the medical evidence in this
regard is lacking. The so-called Medical Certificate obtained from
Vinayak Hospital is not by competent authority and thus, inadmissible to
gauge the extent of disability suffered. In any case, it has to be kept in
mind that appellant was a commercial driver and now, due to amputation
of his right leg, he is unable to drive and is jobless. However, this by
itself does not mean that he is not able to earn his livelihood by doing any
other work. So, the functional disability cannot be taken to be 100% for
want of evidence on this crucial aspect. Regarding financial help for
treatment purportedly obtained by appellant, reliable evidence is not
forthcoming.
So far as the incurring of medical expenses are concerned, I find
that whatever documentary evidence has been produced on record, it does
not provide any basis to enhance the compensation as awarded by learned
Tribunal under the head of 'medical expenses'. Regarding addition
towards 'future prospects' is concerned, it needs to be noted that
appellant was not in any kind of stable employment and so, in view of
Supreme Court's decision in Sarla Verma (Smt.) and Others v. Delhi
Transport Corporation and Another, (2009) 6 SCC 121, no addition
towards 'future prospects' can be made. However, learned Tribunal has
taken into consideration the interest component to take care of 'future
prospects'.
Be that as it may. The compensation under the non-pecuniary
heads certainly appears to be on lower side. Considering the extent of
disability suffered by appellant and while taking into account the job
profile of appellant, the compensation granted under the head of 'pain
and sufferings' needs to be enhanced from `50,000/- to `1 lac. The
compensation granted under the head of 'loss of amenities of life' also
needs to be suitably enhanced from `30,000/- to `1 lac as due to
amputation of his right leg, appellant is unable to effectively lead his life.
No further enhancement or modification of impugned Award is called
for.
In the light of the aforesaid, impugned Award is modified as
under:-
1. Medical expenses `2,00,000/-
2. Loss of earning `26,600/-
3. Disability `4,70,000/-
4. Special diet, conveyance `45,000/-
and attendant charges
5. Pain and sufferings `1,00,000/-
6. Loss of amenities of life `1,00,000/-
Total `9,41,600/-
As regards the rate of interest of 7% per annum as awarded by
learned Tribunal, I find it to be reasonable in view of Supreme Court's
dictum in Rajesh v. Rajbir Singh (2013) 9 SCC 54 and the fact that
accident in question took place in the year 2006. Accordingly, enhanced
compensation shall carry interest @7% p.a. Upon respondent-Insurer
depositing the enhanced compensation with learned Tribunal within four
weeks, it be released to appellant-claimant forthwith.
With aforesaid modification, the appeal stands disposed of.
(SUNIL GAUR)
JUDGE
FEBRUARY 09, 2017
s
