Delhi High Court
Gaurav Sharma vs Ram Adhar Parshad Yadav & Ors. on 12 September, 2017
$~R-184
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th September, 2017
+ MAC APPEAL No. 123/2010
GAURAV SHARMA ..... Appellant
Through: Mr. S.C. Singhal, Adv.
versus
RAM ADHAR PARSHAD YADAV & ORS. ..... Respondent
Through: Mr. D.K. Sharma, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant was riding motorcycle bearing registration no. DL
2SM 0816 on 29.05.2005 and as he was taking a turn towards Samalka
Chowk, Near NSG Camp from Delhi-Gurgaon Road, a Canter bearing
registration no. DL 1L 2634 came from behind and hit him making
him fall which led to his suffering injuries including in the head
region. He instituted accident claim case (MAC claim petition no.
251/2008) on 11.08.2005 impleading the driver, owner and insurer of
the Canter as party respondents, they now being first, second and
third respondents respectively in the appeal. On the basis of inquiry
held, the tribunal, by judgment dated 03.12.2009, accepted the claim
for compensation holding the Canter driver negligent. It awarded
compensation in the total sum of Rs. 10,52,750/- calling upon the
insurer to pay with interest @ nine per cent (9%) per annum
calculating it thus:-
S.No. Heads Compensation awarded
1. Medicines & Treatment Rs. 6,10,000/-
2. Loss of Income Rs. 50,750/-
3. Loss of Earning Power Rs. 3,12,000/-
4. Loss of Amenities Rs. 30,000/-
5. Pain & Suffering Rs. 35,000/-
6. Conveyance & Special Diet Rs. 15,000/-
Total Rs. 10,52,750/-
(Ten Lacs Fifty Two
Thousand Seven
Hundred Fifty Only)
2. In the above calculations, the tribunal included the award on
account of loss of earning power due to disability taking the functional
disability to be to the extent of 15%. The claimant is aggrieved
submitting that the said award on account of loss of future earnings
due to disability and the non-pecuniary damages under the heads of
loss of amenities of life and pain & suffering were inadequate.
3. It is noted that by the evidence, the claimant had proved that
the injuries suffered by him in the accident included the loss of left
eye, the disability certificate (Ex.PW-3/A) confirming this fact.
Though as per the medical opinion the loss of one eye caused physical
visual impairment to the extent of 30%, the tribunal took it to be to the
extent of 15% only, referring in this context to the fact that he was
working as customer service executive with a private entity.
4. In the opinion of this Court, the assumption by the tribunal is
erroneous. Loss of one eye, coupled with disfigurement for the reason
that a glass had to be fitted, would fall in the nature of handicap
described against entry no. 25 in the second part of the first schedule
appended to Employees' Compensation Act, 1923 and therefore,
deserving to be treated as loss of earning capacity to the extent of
40%. The compensation due to loss of future earnings on this account
will have to be re-worked.
5. Since the claimant was 30 years old at the relevant point of
time, the tribunal invoked the multiplier of 17. The claimant had
proved his earnings at the relevant point of time at Rs. 10,150/-. Thus,
the loss of future earnings due to disability is recalculated as (10150 x
40 ÷ 100 x 12 x 17) Rs. 8,28,240/-.
6. Having regard to the nature of injuries suffered and the
prolonged treatment that had to be undergone, awards under the heads
of loss of amenities of life and pain & suffering are increased to Rs.
1,00,000/- each.
7. Adding the other components awarded by the tribunal, the total
compensation in the case comes to (8,28,240 + 1,00,000 + 1,00,000 +
6,10,000 + 50,750 + 15,000) Rs. 17,03,990/- rounded off to Rs.
17,04,000/- (Rupees seventeen lacs and four thousand only). The
award is enhanced accordingly. It shall carry interest as levied by the
tribunal.
8. The insurer is directed to satisfy the enhanced portion by
requisite deposit with the tribunal, making it available to be released.
The release of the enhanced portion of the award with corresponding
interest shall be in the form of interest bearing fixed account taken out
in a nationalized bank in the name of the claimant for a period of ten
years with right to draw periodic interest.
9. The appeal is disposed of accordingly.
R.K.GAUBA, J.
SEPTEMBER 12, 2017
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