New India Assurance Co Ltd v. Sanjay Bari & Anr.

1. Allowed, subject to all just exceptions. MAC.APP. 433/2023 & CM APPL. 47978/2023

2. By the present appeal the appellant challenges the Award dated 02.06.2023 (hereinafter referred to the ‘Impugned Award’) passed by the learned District Judge (Commercial Court)-02 North-West District, Rohini Courts, Delhi (hereinafter referred to as the ‘Tribunal’) in MAC Petition No.125/2019, titled Sh.Sanjay Bari v. Sh.Hari Shankar Gupta & Anr.

3. The limited challenge of the appellant to the Impugned Award is on the ‘Attendant Charges’ awarded in favour of the respondent no.1 herein, and also on the penal interest awarded against the appellant in case the appellant fails to deposit the compensation amount awarded by the Impugned Award within a period of 30 days from the date of the Impugned Award.

ATTENDANT CHARGES

4. On the issue of the attendant charges, the learned counsel for the appellant has placed reliance on the testimony of the Dr.Ashutosh Gupta, Specialist Orthopedic, SRHC Hospital (PW[2]), who stated that due to the disability sustained by the injured, he would have moderate difficulty in walking on plain surface, walking on slope, climbing stairs, kneeling and in taking turns. He would also have severe difficulty in standing on both legs and difficulty in performing his day to day activities which involves movement from one place to another. He also stated that the patient being a labour would have difficulty in performing his job.

5. The learned counsel for the appellant submits that keeping the above in consideration, the learned Tribunal has erred in awarding the compensation in favour of the respondent no.1 towards attendant charges, calculating the same on basis of minimum wages of a unskilled worker. She submits that the respondent no. 1 would not require an attendant.

6. I have considered the above challenge of the appellant, however, find no merit in the same.

7. PW[2] in his statement has stated as under: “Due to the aforesaid disability sustained by the injured, he would have moderate difficulty in walking on plain surface, walking on slope, climbing stairs, kneeling and in taking turns. He would also have severe difficulty in standing on both legs. He would have mild difficulty in cross-leg sitting. The aforesaid patient would have difficulty in his performing his day to day activities which Involves movement from one place to another place. The aforesaid patient being a labour would have difficulty in performing his job.”

8. From the above description, it is evident that the respondent no.1 would require assistance in performing his day to day functions. Though, PW[2] has stated that the respondent no.1 would have moderate difficulty in walking on plain surface, walking on slope, climbing stairs, kneeling and in taking turns, he would have severe difficulty in standing on both legs; he would have mild difficulty in cross-leg sitting. The respondent no. 1 has suffered 74% permanent disability in relation to his both lower limbs. In fact, the learned Tribunal has assessed his Functional Disability as 100% to the whole body. With the above nature of difficulties that the respondent no.1 is suffering, no fault can be found in the learned Tribunal coming to the conclusion that the respondent no. 1 would be entitled to compensation for at least one attendant.

9. Even though, looking into the status of the respondent no. 1, it may be presumed that he would not be hiring the services of an attendant, but may be relying upon the family members to help him in his day to day functions, it would not be lawful to not compensate the respondent no. 1 for the services rendered by the family members. Reference in this regard may be made to the judgment of the Supreme Court in Kajal v. Jagdish Chand, (2020) 4 SCC 413, wherein it has further been held that the most ‘just’ manner of determining the compensation payable for an attendant would be the multiplier method. This was followed in Abhimanyu Partap Singh v. Namita Sekhon, (2022) 8 SCC 489, as well.

10. Keeping in view of the above, I find no merit in the challenge to the award of compensation on the head of ‘Attendant Charges’. The same is accordingly rejected.

PENAL INTEREST

11. As far as the penal interest is concerned, the learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in National Insurance Co. Ltd. v. Keshav Bahadur & Ors., (2004) 2 SCC 370, wherein it has been held as under:

12. In the present case, the learned Tribunal, by the Impugned Award, has awarded compensation of Rs.56,63,000/- in favour of the respondent no.1, alongwith interest at the rate of 7% per annum with effect from the date of the filing of the claim petition, that is, 05.03.2019, till the date of its realization. However, while fastening the liability on the appellant, the learned Tribunal has further directed that in case the appellant fails to deposit the awarded sum within 30 days of the Impugned Order, the appellant shall be liable to pay interest at the rate of 9% per annum for the said delay.