Dinesh Kumar Saha vs National Insurance Co. Ltd. and Others

Kailash Gambhir, J.—The present appeal arises out of the award dated 16.11.2007, wherein the tribunal awarded a sum of Rs. 2,04,152/- as compensation along with interest @ 7% per annum.

The brief facts of the case inter alia are that on 24.11.2004 at about 12.30 A.M., the appellant along with other labourers was pushing the trolly on the side of road in front of P.G. DAV College at Fly Over Ring Road, when all of a sudden a Maruti Van bearing registration No. DL-2CAA-6130 driven by its driver in a rash and negligent manner hit the appellant with great force and as a result of which the appellant sustained grievous injuries all over his body.

By way of the present appeal the appellant seeks to challenge the impugned award dated 16.11.2007 so as to claim enhancement in the compensation amount over and over the amount awarded by the Tribunal.

Respondents 2 & 3 are the driver and owner of the offending vehicle. It is not in dispute that the said offending vehicle was duly insured with respondent No. 1/National Insurance Co. Ltd. Counsel for the appellant states that respondent No. 1 insurance company is the main contestant in the appeal. I do not feel necessity of directing notice upon respondents 2 & 3. Notice to respondents 2 & 3 is accordingly dispensed with.

Counsel for the appellant submits that the appellant had suffered serious injuries in his right thigh and a plate was inserted in his thigh to join his bone. Counsel submits that the appellant remained under treatment for a period of one year and as per the disability certificate issued by the office of Civil Surgeon/Chief Medical Officer, Supaul, the appellant has suffered disability to the extent of 45%. The contention of the counsel for the appellant is that the Tribunal has reduced the said disability from 45% to 22 1/2% in relation to the whole body, although the appellant who was working as a labour prior to the date of the accident has been rendered totally incapacitated in performing his job as a labour. Counsel thus contends that the disability of the appellant should be taken in accordance with the disability certificate issued by the Chief Medical Officer. Another grievance raised by the counsel for the appellant is that the Tribunal has not granted increase in the minimum wages although wages of the appellant have been assessed under the Minimum Wages Act. The third contention raised by the counsel for the appellant is that a meager amount of Rs. 15,000/- has been granted by the Tribunal towards pain, sufferings and mental agony.

Per contra, Mr. Pradeep Gaur, counsel for the respondent insurance company submits that the Tribunal has rightly taken into consideration the disability to the extent of 22 1/2% in relation to his whole body as the appellant had suffered a fracture only in his right thigh. Placing reliance on the disability certificate Mr. Pradeep Gaur contends that even the Civil Surgeon-cum-Chief Medical Officer has certified the disability to the extent of 45% after examining the appellant who was found suffering from stiffness in both knees. The contention of the counsel for the respondent is that the injury suffered by the appellant is not so serious and therefore, the disability as assessed by the Chief Medical Officer cannot be taken to be for the whole body of the appellant. Counsel for the respondent submits that even under other heads the compensation awarded by the Tribunal is fair, just and reasonable.

I have heard learned Counsel for the parties and have perused the record. I have also seen the physical condition of the appellant. The appellant has received fracture in his right thigh and it is not in dispute that the plate was inserted to join the bone in his thigh. The Tribunal has assessed the income of the appellant as was applicable in the year 2004 in the category of unskilled labourer. The accident in the present case had occurred on 24.11.2004 and the condition of the appellant has still not been improved as he has not been able to discharge his normal duties as a labourer. Although, there appears to be some lapse on the part of the office of Civil Surgeon/Chief Medical Officer in clearly disclosing the nature of injuries suffered by the appellant, but on physical examination of the appellant, it is apparent that the appellant is not in a position to discharge his normal duties. The disability as assessed by the Civil Surgeon/Chief Medical Officer to the extent of 45% is thus taken to 35% for the whole body. With regard to the contention of the appellant that the Tribunal has not taken into consideration the increase in the minimum wages although the wages have been assessed in the category of unskilled labourer @ Rs. 2894/- as applicable on the relevant date of the accident, this Court has taken a consistent view that where the income of the victim is assessed under the Minimum Wages Act than the increase as per the Minimum Wages Act should also follow. It has been noticed that within a period of 10 years the minimum wages become more than double, and therefore, giving the benefit of the same the minimum wages as assessed in the present case @ Rs. 2894/- can be doubled to Rs. 5,788/- and taking the average of the same the income of the appellant would come to Rs. 4,341/- and after taking into consideration the disability of the appellant to the extent of 35% and multiplier of 18, the compensation towards permanent disability would come to Rs. 3,28,180/-. As regards the contention of the counsel for the appellant that meager amount of Rs. 15,000/- has been awarded towards pain and sufferings, perusal of the record shows that the appellant remained under medical treatment for a period of one year and was operated upon for insertion of the said plate in his right thigh. Therefore, grant of compensation of Rs. 15,000/- towards pain and sufferings is on the lower side. The same is enhanced to Rs. 30,000/-.

Let differential amount be paid to the appellant by the respondent insurance company with up-to-date interest @7% p.a. from the date of filing of the petition till realization.

With these directions, the appeal stands disposed of.