Delhi High Court
Shiv Sahay vs Ram Avtar Singh & Ors. on 27 September, 2017
$~R-283
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 27th September, 2017
+ MAC APPEAL NO.878/2010
SHIV SAHAY ......Appellant
Through: Nemo.
versus
RAM AVTAR SINGH & ORS. ..... Respondents
Through: Mr. Manoj R. Sinha, Advocate
for R-3.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant had instituted accident claim case (MACT
No.285/2008) on 02.04.2007 seeking compensation on the averments
that on 02.04.2006 he had suffered injuries on being hit by Qualis car
bearing registration No.HR-55BT-9526, driven in a negligent manner
by the first respondent, it being a vehicle registered in the name of
second respondent and admittedly insured against third party risk for
the period in question with the third respondent (insurer).
2. The tribunal held inquiry and, by judgment dated 08.09.2010,
upheld the said claim and awarded compensation in the total sum of
Rs.1,66,000/-, directing the insurer to pay with interest @9% per
annum, the said amount having been calculated thus:-
Sl. No. Head Amount (in Rs.)
1. Medical and treatment 10,000/-
2. Loss of income 29,600/-
3. Loss of earning power 71,040/-
4. Loss of amenities 5,000/-
5. Pain and suffering 35,000/-
6. Conveyance /special diet & attendant 15,000/-
charges
Total compensation 1,65,640/-
Rounded off to
Rs.1,66,000/-
3. It is noted that the claimant had suffered fracture of the shaft of
both femurs affecting the full motion of hip, knee and ankle joints. He
appeared before a board of doctors of Deen Dayal Upadhyay Hospital
of the Govt. of NCT of Delhi which evaluated his condition vide
disability certificate (Ex.PW-4/A) on 28.05.2010. As per the said
disability certificate he was found to be disabled to the extent of 30%,
in relation to both lower limbs, the said assessment, however, being
temporary, there being recommendation for re-evaluation after the
treatment had been completed.
4. The tribunal has assessed the functional disability to the extent
of 20% and made the award towards the loss of earning power
accordingly. It is this element with which the claimant was
dissatisfied, leading to the present appeal being filed, his prime
contention being that since he is unable to work, his functional
disability should have been assessed at a higher level.
5. The appeal was admitted by order dated 25.02.2011, and put in
the list of 'Regulars' to be taken up in its own turn. On the matter
being called out, there is no appearance for the appellant (claimant).
6. In the facts and circumstances noted above, particularly the fact
that there was no clear medical opinion as to the permanent disability,
if any, the case requires further inquiry. Thus, the claim case is
remanded to the tribunal for further inquiry which shall be restricted to
the question as to whether functional disability of the claimant is to be
assessed at a higher level, and if so, as to whether the same is
permanent in nature and further as to whether any further
compensation is to be awarded on such account, over and above what
was granted by the tribunal. In these circumstances, fresh adjudication
by the tribunal shall be in continuation of the impugned judgment.
7. The parties are directed to appear before the tribunal for further
proceedings on 30.10.2017.
8. Since the claimant/appellant has not appeared before the court
at the final hearing, it will be proper that the tribunal issues a court
notice to him to secure his presence for above said purposes. Needless
to add, the amount already received in terms of the earlier judgment of
the tribunal shall be liable to be adjusted.
9. The appeal is disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 27, 2017
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