Raj Kumar vs Nitin Kumar Goyal & Ors.

An Appeal under Section 173 of the Motor Vehicle Act, 1988 (‘M.V. Act’ hereinafter) has been filed on behalf of the Appellant against the Award dated 12.11.2021, for enhancement of the compensation granted by the Tribunal in the sum of Rs. 14,78,000/- with interest 9% p.a. for the injuries suffered by him in the road accident.

The injured has sought the enhancement of compensation on the following grounds: -

An opportunity was given to the Insurance Company to address the arguments.

Submissions Heard and record perused.

Briefly stated, the Appellant was going to the Petrol Pump for getting petrol filled in his motorcycle on 30.11.2014 at 6:30 PM. When he reached near APMC Parking, Tikri Khurd, GT Road, Delhi, a car bearing No. DL-8-CW-3161, which was being driven by Respondent No. 1 at a very high speed and in a rash and negligent manner, came from behind and hit his motorcycle and the front wheel of the car ran over the foot of the Appellant.

He suffered grievous injuries and was taken to SRHC Hospital, Narela, where MLC was prepared. His left leg was operated thrice and he was discharged on 04.12.14. Thereafter, he was an OPD patient for more than one year. He suffered Permanent Disability to the extent of 76% in his left lower limb.

A criminal case was registered against the driver of car vide FIR No. 1139/2014 under section 279/338 IPC, at P.S. Alipur.

The injured Raj Kumar examined himself as PW-1 and deposed about the manner of accident. He deposed that he was 19 years old at the time of Accident and was working as labour and earning Rs. 15,000/- p.m., but is unable to perform his vocation after the accident due to disability. He also proved the Medical Bills and Treatment records.

PW-2 Dr. Ashutosh Gupta deposed about the injuries and Permanent Disability. Respondents did not examine any witness.

The first ground on which the injured has sought an enhancement is that he had suffered 76% of the Permanent Disability of his left lower limb, as per the Disability Certificate Ex.PW-1. He was working as a labourer at the time of the accident and that he would not be able to now join back his vocation.

It is argued that the Functional Disability should have been taken as 100% as he is rendered unable to work as a labourer. In this regard, reliance was placed on Sayed Sadiq vs United India Insurance Co. Ltd., (2014) SC ACC I, 206, and Raj Kumar vs Ajay Kumar, (2011) 1 SCC 343, wherein it was observed that future loss of income should be assessed on the basis of effects of disability in the present work, which the injured was doing at the time of accident.

The Discharge Summary, Ex.PW-1/1 (collectively) reflects that he had sustained post fracture femur (left), close fracture medial malleolus left and fracture Fibula. He was operated thrice by Close Reduction Internal Fixation with ender’s nail left femur, CRIF with screw medial malleolus left and CRIF with K wire Left Fibula. His Permanent Disability was assessed as 76% of left lower limb.

PW-2, Dr. Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital, Narela, Delhi, had deposed that the disability was Permanent in nature. He further deposed that there would be moderate difficulty in walking on plaint surface, as well as, on slope, using staircase and even in standing and turning. He would not be able to squat and sit with cross legs and cannot knee. He also would have moderate difficulty in cycling and would not be able to drive a two-wheeler scooter, motorcycle or car either. In his cross-examination, PW-2 further explained that the disability was assessed by the Disability Board, on the basis of the injuries sustained by the patient as was reflected in his treatment including MLC. He also clarified that the disability was on account of the injuries suffered in the accident.

The learned Tribunal in the light of the testimony of the Petitioner/Claimant and the Doctor, concluded that the Functional Disability of the injured be taken as 40%.

However, it has been overlooked that he was a labourer by profession and with the extent of disability as explained by PW-2; he would not be able to ever go back to his vocation. In the case of Raj Kumar vs. Sh. Nitin. Kumar & Ors, it has been held that even the Permanent Disability is of a particular limb but if the injured is unable to resume his vocation, it should be deemed to be as 100% Functional Disability.

Considering the nature of disability and the profession of the Petitioner, the learned Tribunal fell in error in taking the Functional Disability as 40%. It is hereby held that the Functional Disability must be taken as 100%.

Furthermore, the Petitioner having suffered Permanent Disability, is also entitled to 40% Future Prospects in the light of the judgment of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 as under: -

The Appellant has also sought enhancement for the compensation under Non-Pecuniary Heads. Considering the nature of injuries and prolonged treatment and the consequent Permanent Disability, the compensation under the Head of Conveyance and Special Diet is enhanced to Rs. 20,000/- each. Pain and suffering is enhanced to Rs. 1,00,000/- but the compensation under other have been reasonably granted and do not warrant any interference.

The impugned Award dated 12.11.2021 is accordingly modified as under:

The total amount of compensation granted to the Appellant is enhanced to Rs. 30,85,000/- along with interest @ 9% per annum as per the terms of the Award dated 12.11.2021.

The Appeal is disposed of accordingly.