Sh. Dharmendra @ Dharmendra Kumar @ Alok v. Sh. Krishna Kumar @ Kalu & Others

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR' I' (Oral)

1 This appeal has impugned the Award dated 20.04.201.0 vide which compensation in the sum of {3,55,000/- along with interest @ 7.5o/o per annum had been granted in favour of the claimants.

2 The appellant is the claimant/injured himself. Claim petitiotr had been filed under Sections 166 6c f +O of the Motor Vehicle Act (irereinafter referred to as the MV Act). On the intervening night MAC APPEAL No.469/2010 Page l of[6] "i tr* 2011:DHC:15396 g i. A v of 23124-11.2008, the appellant while going to his house in a TSR which was being driven by the driver in a rash and negligcnt manner rammed into a Maruti Car as a result of which the appellant sustained grievous injuries. FIR No. 30712008 under Sections 279/337 IPC was registered at Police station civil Lines. The appellant was 32 years of age. oral and documentary evidence was led; award'in the aforestated amount was awarded in favour of the aPPellant.

3 This appeal has been filed by the appellant claiming enhancement of the award amount on five counts. His contention is that the minimum wages of {3,683/- had been taken into account as his earning when there was an admitted proof that he was getting {6,000/- per month and he had proved his salary certificate Ex. PW-t/22 on record. The minimum wages criteria could not have been applied to him. It h.as secondly been contended that the future prospects have been illegally ignored; capacity of the injured to work in the future has been reduced substantially and fhis is clear from the medical certificate showing a permanent disability of TOTo because of the fractures which he had suffered on his right leg;. even on date he can only walk with the crutches. The appellant was entitled to future prospects' It is MAC APPEAL No.469/2010 Page 2 of[6].?t- ? { next contended that the permanent disability as per medical certificate as evidenced ts 70%o but it has been reduced to 35% by the Tribunal for no cogent reason. Next contention is that no amount has been granted under the head of 'loss of amenities for life' which was the entitlement of the appellant he having suffered a permanent disability. It has lastly been contended that the loss of earning has been granted for a period of six months only when there was evidence to the effect that he remained at home for a period of one year. On all these counts, the award amount is liable to be enhanced.

5 Record shows that the victim is a 33 years of age; he was working as a doorman under Vinay Service; in his claim petition he had clearly asserted that he was getting a salary of t200/- per day substantiating his submission that he was thus a daily wager; it is also not the case of the appellant that he had any appointment letter or any other document to verify this fact that he was at a fixed salary basis with Vinay Service; he had no salary slip or identity card with him; the Tribunal in these circumstances had rejected the salary certificate Ex.PW-L/Z[2] eidencing his monthly MAC APPEAL No.469/2010 Page 3 of[6]:(' )o '{.[4] salary of t[6],000i-; contention was rightty noted that from the assertion of the claimant himself he was a daily wager; even otherwise it could not be presumed that he was on duty everyday; in these circumstances, by applying the minimum wages criteria, the monthly satary had rightly been computed at { 3,683/-; on this count the Award suffers from no infirmity.

6 The victim was a doorman even as per his own showing; his right leg had suffered two fractures pursuant to which a 70% disability had been recorded in the disability certificate issued by Hindu Rao Hospital Ex. P-6 showing a 70o/o of. the right lower limb; however after the period of surgery and follor,v up treatment, the victim was fit to continue.his normal life. in these circumstances, the functional disability certificate assessed at 35% qua the whole body was rightly assessed as it was not the case of the appellant that his job required hirn to be standingJ on his legs all the time as a result of which his functional disability had been effected. The Tribunal while computing 'loss of dependency' has granted him compensation under the head of 'loss of earning capacity'. The compensation awarded under this head was calculated as follows:- {3, 700/-X[1] 2X[1] 6X[3] 5/1 00= {2,48,640 I - Disability of 35% for the future years has been considered.

7 In JT 2010 (13) SC 38 Raj Kumar Vs. Aia-v Kumar & another relying upon the law relating to compensation awarded in the case of permanent disability as held in the case of. Aruind Kumatr Mishra Vs. New India Assurance Co. Ltd.IT 201_0 (10) SC 254 and Yadava Kumar Vs. D.M. National Insurance Co. Ltd. JT 2010 (g) SC 91 the formula for assessment of compensation payable in a case of permanent disability had been laid dornm with reference to three illustrations as contained in para L[4] of. the said judgment. Award is in conformity. This calculation arrived at by the Tribunai suffers from no infirmitv. B The Tribunal has awarded compensation to the victim for the pain and sriffering in Lhe sum of { 50,000/- keeping in view the fact that the appeilant h.ad to undergo.a surgery for which an implant had to be inserted in his body; attendant charges had also been granted as also conveyance and special diet. I It has been conceded by learned counsel for the respondents that the documentary evidence evidenced that the victim remained at home for a period of B months and he could not rejoin his duties. The Tribunal has awarded amount of compensation on this count for a period of six months. An additional sum equivalent to two months salary is liable to be added on this count. Under MAC APPEAL No.469/2010 Page 5 o1'6 'l* IL this head of 'loss of income', the amount awarded as {22,098/shall now be read as:- <22,0981 - +t[7], 3 6 6/-:{29,464 I - L0 No other modification is called for. F t-. 1J Appeal is disposed of in the above terms. I T I I | ---z h-- INDERMEET KAUR,.I. JULY 2L,?OLL a MAC APPEAL No.469/2010 Page 6 of[6]