Delhi High Court
Sushil Saxena vs Sandeep & Ors. on 23 October, 2017
$~R-346
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd October, 2017
+ MAC APPEAL No. 508/2011
SUSHIL SAXENA ..... Appellant
Through: None.
versus
SANDEEP & ORS. ..... Respondents
Through: Mr. Pankaj Gupta, Adv. for R-
3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant while driving his scooter bearing registration no.
DL 4SM 8683 on 08.05.2007 suffered injuries when his scooter was
hit by Tata tempo bearing registration no. DL 1LD 3660, the latter
having been driven in a negligent manner. On his accident claim case
(case no. 313/2008) instituted on 13.07.2007, the tribunal held inquiry
and, by judgment dated 23.03.2011, accepted the case for
compensation holding the tempo driver responsible. Compensation in
the total sum of Rs. 80,700/- was awarded, the liability having been
fastened against the third respondent (national insurance), insurer of
the tempo, such amount inclusive of Rs. 5,700/- towards treatment
expenses; Rs. 20,000/- towards pain & suffering; Rs. 5,000/- on
account of conveyance & special diet and lumpsum amount of Rs.
50,000/- due to disability.
2. The appellant felt aggrieved and came up with the present
appeal seeking enhancement of the compensation.
3. The appeal was put in the list of 'regulars' to come up on its
turn as per order dated 28.01.2016. When it is taken up for hearing,
there is no appearance on behalf of the appellant. The matter has been
considered with the assistance of counsel representing the third
respondent and by perusal of the record.
4. It is noted that the appellant had suffered fracture in the right
femur bone. On being examined, he has been found to be permanently
disabled, his disability having been assessed by board of doctors of
Deen Dayal Upadhyay Hospital, by disability certificate (Ex.PW-1/2),
to be 17% in relation to the right lower limb on account of post
traumatic valgus deformity, such certification having been affirmed by
Dr. Vineet Arora (PW-2) during the course of inquiry. The appellant
had vaguely claimed that he was earning his livelihood from business.
He did not elaborate the nature of business nor submitted any further
proof on such account. It is against this backdrop that the tribunal
proceeded to award lumpsum amount of Rs. 50,000/-.
5. It is noted that the claimant was 44 years old on the date the
accident occurred. During the course of his evidence, on the strength
of his affidavit (Ex.PW-1/A), it was proved he has studied upto 12th
standard. In these circumstances, some fair assessment of the
disability could have been made. Having regard to the overall facts
and circumstances, this Court finds the functional disability to be to
the extent of 10% (ten per cent). Since no proper proof of engagement
in gainful employment or venture, muchless about the income, was
adduced, the earnings of the claimant are assessed notionally with the
help of minimum wages (Rs. 3918/-) payable to a matriculate during
the relevant period. The loss on account of functional disability is
computed with the multiplier of 14. Thus, calculated the loss of
income due to disability is assessed at (3918 x 10 ÷100 x 12 x 14) Rs.
65,822.40, rounded off to Rs. 66,000/-. Since the lumpsum amount of
Rs. 50,000/- was awarded, the award under the head of loss of income
due to disability is increased by Rs. 16,000/-.
6. The appeal also raises grievance about inadequacy of awards
under the other heads. The Tribunal has calculated the treatment
expenses on the basis of proof adduced. There was no clear evidence
about the expenditure on account of conveyance or special diet.
Having regard to the nature of injuries suffered, however, the non-
pecuniary damages under the heads of pain & suffering at Rs. 20,000/-
is inadequate. The same is increased by Rs. 30,000/-.
7. Thus, the total award shall stand increased by Rs. (16,000 +
30,000) Rs. 46,000/- (rupees fourty six thousand only). Ordered
accordingly. Needless to add, the enhanced portion of award shall
also carry interest as levied by the Tribunal.
8. The insurer (third respondent) is directed to deposit the
enhanced portion of the award with corresponding interest with the
Tribunal within thirty days.
9. The appeal is disposed of in above terms.
R.K.GAUBA, J.
OCTOBER 23, 2017
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