Delhi High Court
Royal Sundaram Alliance ... vs Babu Hassan And Ors. on 23 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: July 23, 2018
+ MAC. APP. 253/2013
ROYAL SUNDARAM ALLIANCE INSURANCE.....Appellant
Through: Mr. Pankaj Gupta, Advocate for
Ms.Suman Bagga, Advocate
Versus
BABU HASSAN AND ORS. .....Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 10th January, 2013 grants compensation of
`10,47,457/- with interest @ 9% per annum to Injured- Babu Hassan,
aged 52 years, who was doing embroidery work, on account of grievous
injury suffered by him in a vehicular accident, which took place on 5th
June, 2010. The facts as noticed in the impugned Award are as under:-
"The brief facts necessary for decision have been
detailed by the petitioner, Babu Hassan, stating on 5.6.2010,
when he visited Plot No.225, Phase-I Udyog Vihar, Gurgaon
in pursuance of his business as being an embroider, he is
running the business under the trade-name of Reena
Fashions and at about 9.30 PM while he was loading the
goods in a tempo and was in the process of tying it with rope,
he was hit by a crane (the offending vehicle), bearing
registration No. HR 55 J-4595, which was being piled by its
driver, in rash and negligent manner. As a result, he suffered
compound fracture Grade-I of left leg besides, abrasions,
wound and other injuries on other body parts. He was
removed immediately to Civil Hospital, Gurgaon where his
MLC was prepared and thereafter, he was shifted to
Safdarjung Hospital and remained hospitalized from
6.6.2010 to 7.7.2010 in which process, he underwent ORIF
and an implant was inserted in his left femur by way of
surgery on 29.6.2010. Despite the above, his leg did not
unite and he underwent replastering on 14.7.2010 and on
28.7.2010. He was advised rest for 16 weeks and continuous
dressing from time to time. On 28.8.2010, he underwent
another replastering and was advised to walk only with
support. It is stated that the injury were so grave that he lost
mobilization and also went through the physiotherapy for a
long period. As a result of the injuries, it is claimed that he
suffered disability."
2. To render the impugned Award, learned Motor Accident Claims
Tribunal (hereinafter referred to as the "Tribunal") has relied upon
evidence of injured and as per Disability Certificate (Ex. PW2/A), Injured
had suffered 80% permanent disability in relation to left lower limb. On
the strength of evidence recorded, impugned Award has been rendered.
The breakup of compensation awarded by Tribunal is as under:-
Treatment expenses `20,692/-
Pain & Suffering `50,000/-
Diet & Conveyance `30,000/-
Attendant's charges `10,000/-
Loss of income `51,584/-
Disability `8,85,181/-
Total `10,47,457/-
3. Learned counsel for appellant-Insurer assails impugned Award on
the ground that the Tribunal has erred in assessing the functional
disability at 80%. Attention of this Court is drawn to evidence of Dr.
Joginder Kumar (PW-2), who has categorically deposed that despite the
disability suffered by the injured, he can do sitting job and embroidery
work and can walk with the help of stick, etc. So, it is submitted that the
"functional disability" ought to be assessed at 40%. Counsel for
appellant-Insurer submits that the Tribunal has rightly assessed the
income of injured on minimum wages but has erred in making addition of
30% towards "future prospects". Reliance is placed upon Supreme
Court's Constitution Bench decision in National Insurance Company Ltd.
Vs. Pranay Sethi & ors. (2017) 16 SCC 680 to submit that addition
towards "future prospects" ought to be 10%, as Injured was aged 52
years on the day of accident. Lastly, it is submitted that quantum of
compensation granted ought to suitably reduced.
4. As per order of 22nd May, 2013, respondent-Injured has been
served, as Mr. Vijay Kumar Wadhwa, Advocate, had appeared on his
behalf and had undertaken to file his Power of Attorney/ vakalatnama.
However, no vakalatnama has been filed on behalf of first respondent.
Appellant's counsel submits that Mr. Vijay Kumar Wadhwa, counsel for
first respondent was informed about hearing of this appeal. However,
there is no appearance on behalf of respondent-Injured.
5. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that in view of evidence of Dr.
Joginder Kumar (PW-2), the Tribunal has erred in assessing the
"functional disability" at 80%, as he has categorically stated that the
injured can do sitting job, embroidery work and can walk with the help of
a stick. So, in such a case, "functional disability" should not be assessed
more than 50%. Accordingly, the "functional disability" of injured is
assessed at 50%.
6. So far as addition towards "future prospects" is concerned, I find
that in view of Supreme Court's decision in Pranay Sethi (Supra), the
addition towards "future prospects" has to be 10% and not 30%, as
adopted by the Tribunal. In view of aforesaid, the "loss of dependency" is
reassessed as under:-
`6,448 X 12 X 110/100 X 50/100 X 11 = `4,68,124/-
7. Supreme Court in Reshma Kumari & Ors. v. Madan Mohan &
Anr., (2013) 9 SCC 65 has reiterated that it is the obligation of the Court
to ensure that the compensation granted is just, fair and proper.
Accordingly, the compensation granted under the head of "pain and
suffering" is enhanced from `50,000/- to `75,000/-. The Tribunal has
erred in not granting compensation under the head of "loss of amenities
of life" and therefore, it is deemed appropriate to award compensation of
`1,00,000/- under the head "loss of amenities of life".
8. Consequentially, the re-assessed compensation payable to
respondent-Injured is as under:-
Treatment expenses `20,692/-
Pain & Suffering `75,000/-
Diet & Conveyance `30,000/-
Attendant's charges `10,000/-
Loss of income `51,584/-
Loss of Earning Capacity due to `4,68,124/-
Disability
Loss of amenities of life `1,00,000/-
Total `7,55,400/-
9. Resultantly, the compensation amount payable to respondent-
Injured stands reduced from `10,47,457/- to `7,55,400/-. The modified
compensation alongwith interest be released to respondent-Injured in the
manner already indicated in the impugned Award. Statutory deposit
alongwith excess deposit, if any, be refunded to appellant-Insurer.
10. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
JULY 23, 2018
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