Om Prakash v. Oriental Insurance Company Limited & Anr.

1. This appeal has been filed by the appellant challenging the Award dated 20.04.2016 passed by the learned Motor Accidents Claims Tribunal-02, West District, Tis Hazari Court, Delhi (hereinafter referred to as the ‘Tribunal’), in MACT Petition No. 77702/2016 titled Om Prakash v. Surendra and Another.

2. On 10.05.2016 at about 7:00 AM, the appellant was sleeping in the premises of Jindal Company, Munde village, when the truck bearing registration no.UP-37T-2694 (hereinafter referred to as ‘Offending Vehicle’) reversed on-to the appellant causing grievous injuries to the appellant. The injury suffered by the appellant has been described in the Impugned Award as under:- “21. Petitioner Om Prakash (PW[1]) in his evidence by way of affidavit (Ex.PW1/A) deposed that immediately after the accident, he was removed to Vakratunda Hospital Pvt.Ltd. and diagnosed with "Fracture Mandible; right thumb tendon and fracture right radius". It was also claimed by the petitioner that due to the accident in question, his right ear had to be amputated and his 6 teeth had also got broken. He further claimed that he also sustained communited displaced fracture of chin (three plates inserted), amputation of forefinger of left hand, right hand over thumb injury, left hand fracture radius and fracture mandible. As per medical treatment record, petitioner was admitted to the hospital on 10.05.2016 and discharged on 19.05.2016. During his treatment, ORIF was done on 12.05.2016 and his right ear was amputated due to the injuries sustained by him in the accident…..”

CONTRIBUTORY NEGLIGENCE

3. The appellant is aggrieved of the Impugned Award inasmuch as it has attributed 50% contributory negligence on the appellant. The learned counsel for the appellant submits that as the accident had occurred only due to the Offending Vehicle being driven in a rash and negligent manner, attribution of contributory negligence on the appellant by the learned Tribunal is ill-founded.

4. On the other hand, the learned counsel for the respondent no.1 submits that admittedly the appellant was sleeping in the parking lot at a place where he was not supposed to be. He submits that, therefore, no fault can be found in the attribution of 50% of contributory negligence on the appellant.

5. I have considered the submission made by the learned counsel for the parties. The learned Tribunal, for attributing 50% contributory negligence on the appellant, has observed as under:-

6. Admittedly, the appellant was sleeping at a place which was meant for the parking of the vehicles. Therefore, the attribution of 50% negligence on the appellant cannot be faulted. I, therefore, find no merit in the above challenge of the appellant.

COMPUTATION OF FUTURE PROSPECTS

7. The learned counsel for the appellant submits that the learned Tribunal has also erred in awarding only 10% towards future earnings to the appellant. Placing reliance on the judgment of the Supreme Court in National Insurance Company Limited v. Pranay Sethi and Others, (2017) 16 SCC 680, he submits that the same should have been 25%. This submission of the appellant could not be seriously disputed by the learned counsel for the respondent no.1.

8. In view of the judgment of the Supreme Court in Pranay Sethi (supra), the Impugned Award shall stand modified, and the appellant is held entitled to enhancement of the compensation by taking the future prospects of his income at 25%.

DISABILITY SUFFERED

9. The learned counsel for the appellant next contends that in spite of the injuries suffered by the appellant, which have been described hereinabove, and the Disability Certificate showing that he had suffered 35% permanent disability in relation to his right upper limb, the learned Tribunal has erred in awarding compensation to the appellant by taking the functional disability only as 10% to the whole body. He submits that the appellant has suffered huge functional loss due to the disability suffered by him in the accident.

10. The learned counsel for the respondent no.1, on the other hand, submits that the appellant was working as a cleaner of a truck. Keeping in view the nature of injury suffered by the appellant, the assessment of the learned Tribunal of the functional disability suffered by the appellant at only 10%, cannot be faulted.

11. I have considered the submissions made by the learned counsels for the parties.