Allowed

Mohd Saleem v. Adarsh Kumar & Ors.

Delhi HC24 Oct 2013MAC.APP./258/2011

Case brief

AI extract

What is this about?

Appeal against Motor Accident Claims Tribunal award. Court enhanced functional disability from 25% to 45% considering impact on appellant's vegetable vending occupation and granted separate compensation for loss of disfigurement.

What did the court decide?

Enhanced total compensation fixed at Rs. 6,92,355/-, to carry interest at 7.5% per annum from filing of petition.

Mohd Saleem Vs Adarsh Kumar & Ors. — Delhi HC (2013) — LawSathi Research

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$~14

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*** IN THE HIGH COURT OF DELHI AT NEW DELHI**

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% Judgment delivered on: 24^th October, 2013

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MAC.APP. 258/2011

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MOHD SALEEM ..... Appellant Represented By: Mr. S.N. Parashar, Adv.

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versus

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ADARSH KUMAR & ORS. ..... Respondents Represented By: Mr. Sameer Nandwani, Adv. for R3.

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CORAM: HON'BLE MR. JUSTICE SURESH KAIT

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SURESH KAIT, J. (Oral)

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Instant appeal has been preferred against the impugned award dated 13.10.2010 whereby, ld. Tribunal has granted compensation as under:

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“1.	Compensation towards
	pain and suffering	:	Rs.70,000/-
2.	Loss of Amenities	:	Rs.50,000/-
3.	Loss of earning due to injury
	(for 8 months)	:	Rs.28,000/-
4.	Future loss in earning capacity
	due to disability	:	Rs.2,36,250/-
5.	Expenses towards medical Bills	:	Rs.28,105/-
6.	Compensation towards
	conveyance and special diet (without bills)	:	Rs.15,000/-
7.	Attendant Charges

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Page 1 of 6

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MAC.APP. 258/2011

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Therefore, in my considered opinion the petitioner is entitled for Rs.4,53,355/- (rounded off to Rs.4,53,500/-) which shall be the just compensation to petitioner.”

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The present appeal is for enhancement of the compensation as noted above.

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Ld. Counsel appearing on behalf of the appellant has argued that appellant was coming from Ghazipur Subzi Mandi with his friend namely Rohit after purchasing vegetables in Vehicle No. DL-1Q-0078. When they reached main Jagat Puri Road Picket PV4, Jagat Puri, Delhi, a Tempo no. DL-1LG-5999 driven rashly and negligently hit the appellant’s vehicle. As a result of which he and one Nadeem sustained grievous injuries. They were taken to Dr. Hedgewar Hospital, Delhi.

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Due to the aforesaid accident, appellant suffered grievous injuries such as (i) fracture both bone leg type II compound (rt.) (ii) S/c fracture left type – 1 compound. He remained hospitalized for the period from 20.10.2007 to 18.12.2007 and 04.08.2008 to 12.08.2008 and thus suffered 45% permanent disability. At the time of accident, he was 32 years of age and was earning Rs.7,000/- per month.

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PW3, Dr. Arun Yadav, Orthopaedic Surgeon, Hindu Rao Hospital, Delhi deposed that disability certificate dated 13.07.2009 was issued to appellant by the Board of Directors of which he was one of the member. He

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Page 2 of 6

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MAC.APP. 258/2011

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further deposed that as per the certificate, the appellant was suffering from disability of 45% in relation to both lower limbs and right upper limb.

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Ld. Counsel appearing on behalf of the appellant submits that appellant is a vegetable vendor and for vegetable vending, person should be healthy and fit. Due to the injuries sustained, there will be effect on his avocation.

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Ld. Counsel submits that for functional disability, Tribunal or the court has to see what would be the effect on the avocation of the injured due to the injuries received. However, ld. Tribunal failed to do so. Therefore, the ld. Tribunal has wrongly considered 25% of the functional disability.

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Ld. Counsel submits that in the present case, it has been certified by Dr. Arun Yadav (PW3) that the appellant received 45% permanent disability in relation to both lower limbs and right upper limb. If a person like vegetable vendor received such disability, certainly he will not be able to work as he was working earlier. Ld. Tribunal ought to have considered 45% as functional disability, however considered only 25% without any base and reasons.

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On this issue, ld. Counsel appearing on behalf of respondent / insurance company submits that ld. Tribunal has rightly considered the functional disability as 25% keeping in view the law settled on this issue by the Apex Court in the case of Raj Kumar v. Ajay Kumar & Ors. 2010 (12) SCALE.

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Page 3 of 6

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MAC.APP. 258/2011

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Ld. Counsel further submits that Tribunal or the court has to see what would be the effect on the avocation of the injured and only thereafter the disability has to be assessed.

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The appellant could not prove his salary. Therefore, the ld. Tribunal has taken the minimum wages and accordingly granted the compensation. Even in the case of a labourer, a person has to be bodily healthy and fit and only thereafter he can earn his livelihood.

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In the present case, the appellant was working as a vegetable vendor and the accident took place when he was coming after purchasing the vegetables from Sabzi Mandi. Therefore, it is established that he was a vegetable vendor and selling the vegetables in a retail manner. Therefore, he has to move here and there, one place to another, one Gali to another Gali. Therefore, after receiving the nature of injuries as noted above, his movement has been restricted considerably.

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Similar issue has come before the Supreme Court in case of Mohan Soni v. Ram Avtar Tomar & Ors. 2012, ACJ 583 and Nagarajappa v. Divisonal Manager, Oriental Insurance Co. Ltd. AIR 2011 SC 1785 .

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Keeping in view the injuries and the avocation of the appellant and the dictum of the Supreme Court in the cases noted above, I am of the considered opinion that ld. Tribunal has wrongly considered 25% functional disability. Therefore, I consider 45% functional disability of the appellant.

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The second issue argued by the ld. Counsel for the appellant is that for the loss of disfigurement nothing has been granted by the ld. Tribunal.

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Page 4 of 6

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MAC.APP. 258/2011

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On this issue, ld. Counsel appearing on behalf of respondent / insurance company has fairly conceded that towards loss of disfigurement, ld. Tribunal has not granted any amount, however compensation towards loss of amenities and for pain and sufferings, Rs.50,000/- and Rs.70,000/has been granted respectively. Therefore, both these heads cover loss of disfigurement.

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I do not agree with the submission of the ld. Counsel for the appellant. Above noted two heads are totally different from disfigurement. Therefore, I grant Rs.50,000/- for loss of disfigurement to the appellant. Accordingly, the compensation comes as under:

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Heads	Compensation granted by ld. Tribunal	Compensation granted by this Court
Compensation towards pain and suffering	Rs.70,000/-	Rs.70,000/-
Loss ofamenities	Rs.50,000/-	Rs.50,000/-
Loss ofdisfigurement	Nil	Rs.50,000/-
Loss of earning due to injury (for8months)	Rs.28,000/-	Rs.28,000/-
Future loss in earning capacity due to disability	Rs.2,36,250/-	Rs.4,25,250/-
Expenses towards medical bills	Rs.28,105/-	Rs.28,105/-
Compensation towards conveyance and special diet (without bills)	Rs.15,000/-	Rs.15,000/-
Attendant charges (four months)	Rs.16,000/-	Rs.16,000/-
Reasonable medical Expenses (without bills)	Rs.10,000/-	Rs.10,000/-
TotalCompensation	Rs.4,53,355/-	Rs.6,92,355/-

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Page 5 of 6

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MAC.APP. 258/2011

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Hence the enhanced compensation comes to Rs.2,39,000/(Rs.6,92,355 – Rs.4,53,355).

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The enhanced compensation shall also carry interest @ 7.5% per annum from the date of filing of the petition till realization.

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Instant appeal stands disposed of on the above terms.

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Consequently, respondent no. 3 / insurance company is directed to deposit the enhanced compensation with interest within five weeks from today with Registrar General of this Court.

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On deposit, the Registrar General shall release the said amount in favour of the appellant / claimant.

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SURESH KAIT, J

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OCTOBER 24, 2013 jg

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Page 6 of 6

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MAC.APP. 258/2011

Mohd Saleem v. Adarsh Kumar & Ors.

Case brief

What is this about?

What did the court decide?

Mohd Saleem v. Adarsh Kumar & Ors.

Case brief

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What did the court decide?

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