Delhi High Court
Abhay Kumar vs Balbir Singh & Ors. on 3 November, 2017
$~R-400
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 3rd November, 2017
+ MAC APPEAL 892/2011
ABHAY KUMAR ..... Appellant
Through: None
versus
BALBIR SINGH & ORS. ..... Respondents
Through: Ms. Neerja Sachdeva, Adv. for
R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant had instituted accident claim case (MACP
No.200/2010) on 03.10.2008 seeking compensation under Section 166
of Motor Vehicles Act, 1988 on the averments that while riding on the
pillion of motorcycle bearing registration no. DL-6SZ-8951
(motorcycle) on 11.08.2008 from Gurgaon to village Naraina, New
Delhi, he had suffered injuries on account of motor vehicular accident
that had occurred involving a Tavera car bearing registration no. HR
55-FT-0480 (a car), the latter having been driven in a rash manner by
the first respondent (the driver). It appears that the motorcycle driver
Vinod Kumar had also suffered injuries in the same accident and had
also filed his own case (MACP No.194/2010). Both the cases were
clubbed for inquiry and decided by the tribunal by common judgment.
The second respondent being the registered owner of the car and the
third respondent being the insurer had also been impleaded before the
tribunal.
2. By the judgment dated 16.03.2011, the tribunal returned the
finding that the accident had occurred due to negligent driving of the
car thus holding its driver and registered owner jointly and severely
liable to pay the compensation, the insurer (third respondent) being
liable to indemnify and pay the compensation to the claimants.
3. The finding on the issue of negligence has attained finality as it
was not challenged by any of the parties. The tribunal awarded
compensation in the total sum of Rs.2,59,529/-. It including
Rs.2,00,644/- under the head of loss of income calculated on the basis
of conclusion that the claimant has suffered functional disability to the
extent of fifteen per cent (15%).
4. Aggrieved with the quantum of compensation granted, the
claimant has come up with the present appeal. The appeal was
admitted and directed to be put in the category of 'regular matters' to
be taken up on its own turn by order dated 10.05.2012. When it is
taken up for hearing, there is no appearance on behalf of the appellant
(claimant). The matter has been heard with the assistance of the
counsel for the insurer and by perusal of the record of the Tribunal.
5. On perusal, this Court finds that the judgment rendered by the
tribunal on the claim petition of the appellant is perverse and not based
on the assessment of the evidence in entirety.
6. On the question of functional disability all that the tribunal has
noted is as under:-
"13. Petitioner filed a disability certificate issued by
DDU Hospital. The certificate is undated but states
that petitioner has become disabled by 90% in
relation to right upper limb due to brachial plexus
injury. Then he filed another disability certificate
dated 30/3/2010 mentioning disability as 30%. This
certificate has also issued by the same hospital and
seems to be the latest one. His disability in respect of
the whole body is taken as half i.e. 15%.
14. PW1 deposed that he was privately employed as
Business Development Officer at a salary of
Rs.8675/- per month. The Salary certificate has not
been exhibited but is shows that pertitioner was given
assignment for a fixed term from 13/11/2007 to
12/2/2008. Date of accident is 11/8/2008. So on that
date he was not employed and hence he is taken as
matriculate labourer for whom prevalent minimum
wages were Rs.4130/-."
7. It may be mentioned here that the claimant had relied on two
disability certificates, one dated 12.03.2010, sent to the tribunal by the
chairman of the medical examination board of DDU Hospital, Hari
Nagar, New Delhi (Ex.PW1/N) and, the other, opinion of the medical
orthopedic disability board of same hospital again sent to the tribunal
by communication dated 30.03.2010. It appears that the first said
disability certificate is based on opinion of an orthopedic specialist
while the second disability certificate is based on assessment by an
eye specialist. It seems to have escaped the notice of the tribunal that
the claimant had suffered fracture in the right upper limbs and also
sustained partial loss of sight in the right eye. The assessment of
functional disability also required consideration of the job for which
the claimant was qualified or engaged in. No such facts have been
taken into account.
8. In these facts and circumstances, the impugned judgment,
insofar as it determined of the compensation in favour of the appellant
is set aside. The matter is remanded to the tribunal for fresh
consideration. For such purposes, it shall obtain a fresh evaluation by
the medical board of a government hospital, such board to be
constituted by including not only an orthopedic specialist but also an
eye specialist.
9. The amount received by the claimant in terms of the judgment
earlier rendered by the tribunal will be liable to be adjusted.
10. The parties are directed to appear before the tribunal for further
proceedings on 04.12.2017.
11. Since the claimant has not appeared before this Court at the
hearing on the appeal, in all fairness, the tribunal is advised to issue a
court notice to him to secure his presence before proceeding further, in
the event of he failing to appear pursuant to these directions.
12. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 03, 2017
rb
