Sh. Raj Dev vs Sh. Raj Kumar and Another

Kailash Gambhir, J.

CM No. 1541/2008 in MAC App No. 66/2008

Allowed subject to all just exceptions.

MAC App No. 66/2008

By way of the present appeal, the appellant seeks enhancement in the compensation amount over and above the amount of Rs. 95,173/- awarded by the Tribunal vide order dated 12.10.2007. The grievance of the appellant is that the appellant has not been awarded any compensation towards temporary disability suffered by him to the extent of 32%. The appellant is also aggrieved that the Tribunal has not granted any compensation towards special diet and conveyance.

This is an injury case. The appellant is a victim of the accident. Respondent No. 1 is the driver and owner of the offending vehicle while respondent No. 2 is the insurer of the offending vehicle. The claim petition before the Tribunal was mainly contested by respondent No. 2 and respondent No. 1 did not contest the case and was proceeded ex-parte. There is thus, no need to serve respondent No. 1. Service of respondent No. 1 is accordingly dispensed with.

The matter is therefore, taken up for final disposal.

The brief summary of the facts to deal with the contention of the parties are as under:

On 31.01.2006 at about 7.20 p.m. the appellant Sh. Raj Dev was plying his rickshaw near Jaina Apartment, Sector-13, Rohini, Delhi. At that time a Maruti car bearing registration No. DL-9CM-4340, driven by respondent No. 1 Sh. Raj Kumar in a very rash and negligent manner hit a two-wheeler scooter and thereafter it hit the rickshaw of Sh.Raj Dev. The appellant fell on the road and sustained grievous injuries. He was taken to Baba Saheb hospital. He had received fractures, injuries on his right ankle, injuries on left leg and multiple abrasions.

Counsel for the appellant contends that the temporary disability of the appellant to the extent of 32% was duly established but still the Tribunal has not given any compensation towards temporary disability suffered by the appellant. Counsel also contends that no compensation amount has been awarded towards special diet and conveyance, although the appellant remained hospitalized for a period of 22 days and remained under treatment till the decision of the present case. Counsel for the appellant has invited my attention to the observations made by the Tribunal in Para 11 of the impugned award wherein the Tribunal has observed that after personally seeing the petitioner, it could be noticed that the petitioner had swelling on his both legs and ankles and in the near future he will not be able to resume his activities of plying rickshaw.

Counsel thus contends that the injuries sustained by the appellant were serious in nature and he has not been adequately compensated by the Tribunal by granting him very meagre amount of compensation without taking care of the kind of disability suffered by him.

Per contra, Mr. Pradeep Gaur, counsel appearing for respondent No. 2 contends that the Tribunal has granted just, fair and reasonable compensation looking into the facts of the case. Counsel contends that the appellant has suffered a temporary disability and not permanent disability, therefore, compensation as awarded by the Tribunal cannot be treated as unreasonable. Inviting my attention to Para 11 of the impugned award, counsel contends that a sum of Rs. 69,649/- also takes care of the temporary disability suffered by the appellant as the Tribunal in the said para has clearly observed that the said amount would take care of the temporary disability of the appellant. Counsel further contends that the Tribunal has granted full wages for the entire period of about 22 months and therefore, it cannot be said that the Tribunal was not conscious of the fact of the said temporary disability suffered by the appellant. Counsel further contends that no evidence was placed by the appellant to prove that he remained out of job for such a long period due to the said injury and no evidence was placed on record to claim special diet and conveyance allowance.

I have heard Learned Counsel for the parties and have perused the records.

The appellant was a rickshaw puller by profession and as per the evidence adduced on record, he was earning a sum of Rs. 200/- per day out of the said avocation which is wrongly stated in Para 11 of the impugned award that he was earning Rs. 200/- per month. The disability of the appellant was proved on record with the help of a certificate of the Medical Board and as per the said certificate, the appellant had suffered temporary disability to the extent of 32%. The

Tribunal in Para 11 of the impugned award has clearly observed that he himself had seen the appellant and found that the appellant had swelling on his both legs and ankles and he would be able to resume his activities by plying rickshaw in the near future. Although, the Tribunal has granted full compensation towards loss of wages for a period from the date of the accident till the date of award without taking into account the temporary disability of the appellant which as per the medical board was 32%, yet, I feel that the Tribunal ought to have awarded some amount towards the said temporary disability suffered by the appellant. The Tribunal has also not awarded any amount towards special diet and conveyance, may be because of the reason that no evidence to this effect was placed before the Tribunal. In any case of the matter, the appellant was hospitalized for a period of 22 days and continued with his medical treatment till the date of passing of the award, therefore, some compensation towards special diet and conveyance could have been awarded by the Tribunal even in the absence of any evidence placed by the appellant. In the backdrop of aforesaid facts, I grant an additional amount of Rs. 25,000/- towards temporary disability suffered by the appellant and Rs. 10,000/- towards special diet and conveyance.

Respondent No. 2 insurer has already been given recovery rights to recover the amount from respondent No. 1, therefore, respondent No. 2 is given recovery rights to claim this enhanced amount of compensation as well. Respondent No. 2 shall now pay the differential amount along with upto date interest at the rate of 7.5% p.a. from the date of filing of the petition till realization.

With these directions, the appeal is disposed of.