Delhi High Court
Arvind Kumar vs Naresh Kumar & Ors. on 22 September, 2017
$~R-256
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 22nd September, 2017
+ MAC.APP. 732/2010
ARVIND KUMAR ..... Appellant
Through: Nemo.
versus
NARESH KUMAR & ORS. ..... Respondents
Through: Mr. Pankaj Seth, Advocate for
R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant was the claimant before the tribunal in MACT
Claim Petition No.690/2009, which was decided by judgment dated
03.06.2010 returning finding that he had suffered injuries and became
permanently handicapped on account of motor vehicular accident that
had occurred on the night of 26th and 27th August, 2004 involving
negligent driving of a goods carrier (TSR) bearing registration No.HR-
55A-3879, admittedly insured against third party risk with the third
respondent (insurer) for the period in question. The driver of the said
vehicle (first respondent) having been found to be guilty of
negligence, the vicarious liability consequently placed on the door of
the registered owner of the vehicle (second respondent), the insurer
was called upon by the tribunal to pay compensation with interest at
the rate of 9% per annum, it having been calculated thus:-
Sl. Head Amount (in Rs.)
No.
1. Medicines & treatment 2,00,000/-
2. Loss of income 86,800/-
3. Loss of earning power 5,95,200/-
4. Loss of amenities 25,000/-
5. Pain and suffering 25,000/-
6. Conveyance & special diet 25,000/-
Total 9,57,000/-
2. The appeal was filed by the claimants seeking enhancement of
the compensation. The appeal was admitted and directed to be shown
in the list of 'Regulars'. When it is taken up today, there is no
appearance for the appellant. The matter has been considered with the
assistance of the learned counsel for the insurer and by perusal of the
tribunal's record.
3. It is noted that the claimant had suffered injuries which included
open fracture in the right leg, as described by Dr. Ritabh Kumar (PW-
2) a consultant with Indian Spinal Injuries Centre. The fracture was
eventually found to be a Grade III compound and severely
comminuted fracture of the right femur bone (Ex.PW-2/B) which
required surgical procedures that involved emergency debridement
and fixation (Ex.PW-2/C), the injury also affecting the right knee. A
board of doctors of All India Institute of Medical Sciences (AIIMS)
had examined the appellant and issued disability certificate (Ex.PW-
1/6). According to the said certificate, the appellant has been rendered
a case of post traumatic deformity of right lower limb, his impairment
being to the extent of 40% in relation to the said lower limb.
4. As per the evidence led, the appellant was working as
Production Manager with the private entity M/S INCAS International.
It does appear that on account of injuries suffered, and presumably
prolonged absence from duty as also the resultant permanent handicap,
the management of the employer company terminated the services of
the appellant on 15.01.2005. In the given facts and circumstances, the
tribunal assessed the functional disability to the extent of 25%.
5. The appeal raises grievance that the disability should have been
treated as equivalent to the disability opined by the board of doctors.
This court finds no substance in the said plea. The tribunal has set out
sound reasons to support its conclusion on this score which does not
call for any interference.
6. In calculating the loss of future earning on account of disability,
the tribunal applied the multiplier of 16. The appeal raises grievance to
the effect that since the appellant was 32 years and eight months old,
the appropriate multiplier should have been 17. This plea also must be
rejected as the choice of multiplier by the tribunal is correct and in
accord with the ruling of the Supreme Court in Sarla Verma & Ors.
vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121.
7. In the appeal, it has been submitted that the treating doctor had
given advice that the claimant would need replacement of knee and in
this regard reliance was placed on certificate and estimation vide
documents Ex.PW-2/B and Ex.PW-1/C. The record of the tribunal
does not seem to contain any document introduced in evidence as
Ex.PW-1/C. The advice vide certificate (Ex.PW-2/B) regarding future
need for replacement of the knee was noted by the tribunal. But then,
no award towards such anticipated expenditure was added on the
ground that the treating doctor when examined was not called upon to
confirm such advice.
8. There is, however, a document (Ex.PW-1/5) in the tribunal's
record (at page 359) coupled with another document
Ex.PW-1/4 (at page 357 of the tribunal's record), both in the nature of
estimates given, one for knee replacement and the other for implant
removal. Since the focus of the ground taken in the appeal is on the
knee replacement, the estimate dated 13.02.2007 vide Ex.PW-1/5
could and should have been taken into consideration by the tribunal.
Thus, an amount of Rs.1,81,250/- deserves to be added to the
compensation.
9. The appellant had also expressed grievance that the award under
the head of loss of amenities in the sum of Rs.25,000/- only was
deficient. Having regard to the nature of injuries suffered, this
grievance appears to be proper. It is consequently raised to
Rs.50,000/-.
10. Thus, there would be a net increase in the award by (1,81,250/-
+ 25,000/-) Rs.2,06,250/- (Rupees Two Lakhs Six Thousand Two
Hundred Fifty Only), enhancing it by (9,57,000/- + 2,06,250/-)
Rs.11,63,250/- rounded off to Rs.11,64,000/- (Rupees Eleven Lakhs
Sixty Four Thousand Only).
11. The award is modified accordingly. It shall carry interest as
levied by the tribunal.
12. The third respondent (the insurer) is directed to satisfy the
enhanced award by requisite deposit with the tribunal within thirty
days.
13. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 22, 2017
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