Kherunisha v. BR Sharma & Ors.

1. Instant appeal has been preferred against the impugned award dated 01.03.2012, whereby ld. Tribunal granted compensation of Rs.1,45,720/with interest @ 7.5% from the date of the petition till realization.

2. Vide the instant appeal, appellant is seeking enhancement of the aforesaid award amount on the ground that the appellant was earning Rs.4,500/- per month by doing beading work for an export house, which was dealing in garments.

3. In the accident in question, appellant suffered permanent physical disability of 16% in relation to right lower limb. Ld. Tribunal considered loss of wages at 5%. 2013:DHC:4337

4. Ld. Counsel for the appellant submits the ld. Tribunal has erred in considering the functional disability. Ld. Counsel also argued that no amount on the future treatment has been granted by the ld. Tribunal as the appellant suffered injuries in the said accident and she continued to take the treatment.

5. Ld. Counsel for the appellant has relied upon a case of Sanjay Batham v. Munnalal Parihar and Ors. 2011 10 SCC 665 wherein the Apex Court has held that the damages have to be assessed separately as pecuniary damages and special damages.

6. While concluding his arguments, ld. Counsel for the appellant submitted that appellant is entitled for 8% functional disability keeping in view the case of Sarla Verma v. DTC and Ors. 2009 (6) SCC 121.

7. Ld. Counsel appearing on behalf of the respondent no. 1 / owner of the offending vehicle submits that on the date of accident, the vehicle was not insured and the respondent no. 1 has paid the amount as directed by the ld. Tribunal vide judgment dated 01.03.2012. He submits that the appellant has admitted that she was working as a housewife; and the same is evident from the hospital record of Mata Chanan Devi Hospital,C-1, Janak Puri, New Delhi. In the report issued by the aforesaid Hospital vide serial NO. 1632 shows that she was in occupation of housewife. Moreover, Ld. Counsel further submits that in FIR no. 50/2009, PS-Binda Pur, Under Section 279/338 IPC was registered on her information, wherein she stated that she was housewife.

8. Thereafter, the appellant stated before the ld. Tribunal the she was earning Rs.4,500/- per month by doing a beading work for an export house. Ld. Counsel for the respondent no. 1 submitted that appellant has not produced any proof thereto. Therefore, the ld. Tribunal recorded that the appellant could not produce any evidence of such earning. However, keeping in view the permanent disability of 16% in relation to right lower limb suffered by the appellant, ld. Tribunal has considered loss of wages at 5%.

9. It is true that if the injured is continued to take the treatment, ld. Tribunal/Court has to grant some amount on future medical expenses. In the present case, appellant failed to produce any document regarding future medical treatment. Therefore, the further amount on the medical expenses cannot be granted.

10. Initially, appellant has stated in the FIR that she was a housewife as is also proved from the medical record. Thereafter, she stated that she was doing a beading work for an export house, which is an afterthought. Therefore, her avocation is not proved.

11. Keeping the totality of the case, ld. Tribunal rightly considered and assessed the functional disability as 5%. Therefore, on both the counts, I do not find any discrepancy in the award passed by ld. Tribunal.

12. Accordingly, instant appeal is dismissed with no order as to costs.

SURESH KAIT, J SEPTEMBER 02, 2013/jg/RS