Delhi High Court
Kalam @ Kalamuddin vs Dinesh & Ors. on 5 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 05, 2018
+ MAC.APP. 288/2013
KALAM @ KALAMUDDIN ..... Appellant
Through: Mr. Pratap Singh, Advocate
versus
DINESH & ORS. ..... Respondents
Through: Mr. Arun Yadav, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 7th November, 2012 grants compensation of
`6,12,261/- with interest @ 7.5% per annum to appellant-Kalam
(hereinafter referred to as „Injured‟) aged 35 years and 7 months, on
account of grievous injuries suffered by him in a vehicular accident,
which took place on 13th August, 2009. The facts as noticed in the
impugned Award are as under:-
"Briefly stated facts of the petition are that on
13.8.2009 at about 7.30 PM, Kalam @ Kalamuddin
(hereinafter „the petitioner‟) was returning back to his
residence at Dharmshal situated at Kharkhari Village when a
Motorcycle bearing no. HR-36J-1892 Bajaj Pulsar
(hereinafter offending vehicle ) driven by Respondent No. 1
(in Short R1) with high speed in rash and negligent manner
without observing any traffic norms and hit the petitioner
form behind. As a result to which he fell down on road and
motorcycle ran over his legs. He had sustained grievous
injuries i.e. compound fracture on both lower limbs above
ankle which caused deformity. He was taken to Rao Tula
Ram Hospital by PCR Van for treatment and there from he
was shifted to Deen Dayal Upadhyay Hospital for further
management."
2. To render the impugned Award, learned Motor Accident Claims
Tribunal (hereinafter referred to as "the Tribunal") has relied upon
evidence of Kalam (PW1) and as per the Disability Certificate (Ex.
PW2/A) of this witness, Injured had suffered 57% permanent disability in
relation to both lower limbs. The breakup of compensation awarded to
Injured by the Tribunal is as under:-
For Loss of earning on account `5,27,261/-
of disability
Pain and Suffering `40,000/-
Conveyance and Special Diet `20,000/-
Loss of Amenities `25,000/-
Total `6,12,261/-
3. Learned counsel for appellant-Injured submits that quantum of
compensation granted by the Tribunal is inadequate and it needs to be
suitably enhanced. Learned counsel for appellant-Injured further submits
that prior to this accident, Injured was working as a labourer and due to
injuries sustained in this vehicular accident, he is not able to work as he is
on crutches and therefore, is unable to earn his livelihood. Thus, it is
submitted that the functional disability ought to be assessed as 100%. It is
further submitted that addition of 40% towards „future prospects‟ ought
to be made. Lastly, it is submitted that the compensation granted under
the „non-pecuniary heads‟ is inadequate and it needs to be appropriately
enhanced.
4. On the contrary, learned counsel for respondent-Insurer supports
the impugned Award and maintains that the compensation granted is just
and proper and so, this appeal deserves dismissal.
5. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that appellant-Injured in his evidence has deposed that
he cannot walk on his own and he had to hire an attendant for sixteen
months and had spent ₹1,00,000/- on his treatment, travelling allowance,
etc.. However, no supporting evidence is on record. Injured is illiterate
and in view of his medical record, judicial notice can be taken of the fact
that he must have incurred medical expenses of at least ₹50,000/- on his
treatment and at least ₹30,000/- towards conveyance charges.
Accordingly, compensation of ₹50,000/- towards „medical expenses‟ and
₹30,000/- towards „conveyance charges‟ is granted to appellant-Injured.
6. During the course of hearing, the photograph of Injured was shown
to the Court by his counsel, which reveals that he is on crutches. In view
of the medical Disability Certificate (Ex. PW2/A) of the Injured on
record, it can be safely assumed that he is unable to walk without
crutches. The Tribunal has taken the functional disability of Injured as per
his Disability Certificate. I find no reason to take a different view. There
is no justification to assess the functional disability of Injured at 100%.
On the day of the accident, the Injured was aged 35 years and 7 months
and was working as a labourer and so, the Tribunal has rightly assessed
his income on minimum wages payable to an unskilled worker. So, in
view of Supreme Court's Three Judge Bench decision in Jagdish v.
Mohan and Others, (2018) 4 SCC 571, addition of 40% towards „future
prospects‟ is made. The Tribunal has rightly applied multiplier of 15.
Accordingly, the „loss of earning capacity' of Injured is reassessed as
under:-
₹3,953/- X 12 X 140/100 X 15 X 57/100= ₹5,67,808.92/-
(rounded off to ₹5,67,809/-)
7. So far as the compensation granted to appellant-Injured by the
Tribunal under the „non-pecuniary heads‟ is concerned, I find it to be on
lower side. Accordingly, compensation of ₹40,000/- granted by the
Tribunal under the head of 'pain & suffering‟ is enhanced to ₹80,000/-,
whereas compensation of ₹25,000/- granted by the Tribunal under the
head of „loss of amenities‟ is enhanced to ₹40,000/-. In view of the above,
the compensation granted to Injured is reassessed as under:-
For Loss of earning capacity `5,67,809/-
Pain and Suffering `80,000/-
Conveyance and Special Diet `30,000/-
Loss of Amenities `40,000/-
Medical Expenses ₹50,000/-
Total `7,67,809/-
8. Consequentially, the compensation payable to appellant-Injured
stands enhanced from `6,12,261/- to ` 7,67,809/-. A Three Judge Bench
of Supreme Court in a recent decision of Jagdish v. Mohan and Others,
(2018) 4 SCC 571 has granted interest @ 9% per annum on the awarded
compensation and so, appellant-Injured is also entitled to interest @ 9%
per annum. The enhanced compensation be deposited by Insurer with the
Tribunal within six weeks from today and thereafter, the modified
compensation as per this judgment with interest @ 9% per annum be
released in the manner as indicated in the impugned Award.
9. While modifying the impugned Award in aforesaid terms, the
above captioned appeal is accordingly disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 05, 2018
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