Full Text
Date of Decision: 20.01.2020.
MAGMA HDI GENERAL INSURANCE CO LTD ..... Appellant
RAJIV KUMAR VERMA ..... Appellant
LTD ) ..... Respondents
Through: Mr. Ved Vyas Tripathi, Advocate for appellant in item no. 12.
Mr. Varun Sarin, Advocate for respondents in item no. 12 and for appellant in item no. 13.
JUDGMENT
1. This appeal impugns the award of compensation dated 18.08.2017 passed by the learned MACT in MACT No. 4780/16, on the ground that the minimum wages for a ‘tarwala’ (wiremaker/wiresmith), as notified in the 2020:DHC:359 State of Uttar Pradesh, was taken into consideration for the computation of ‘loss of earnings’ for the injured victim of the motor vehicular accident.
2. It is the appellant’s contention that instead of the minimum wages of a skilled workman- as a ‘tarwala’, the minimum wages of an unskilled workman ought to have been considered, because it was never proven that he was actually employed somewhere as a goldsmith or otherwise.
3. The injured-claimant has been wheeled in into the Court on a wheelchair by his wife. His left hand is virtually dysfunctional. The Court has asked him as to what his vocation was before the injury, he replied that he had worked as an artisan in a goldsmith’s work shop. It is evident that he cannot get up from the wheelchair on his own. His speech is impaired. He is either unable to comprehend questions as to when the accident happened or is otherwise unable to answer other questions apropos his children’s education, etc. It is as a result of injuries suffered to his brain.
4. Evidently, the effect of the injury has not only caused him physiological disability but affected his motor skills, his speech as well as his comprehension abilities. His answers were forthright. He stated that he used to make ornamental pendants, and other jewellery items. In the unorganized sector where an artisan works on job work basis, ordinarily no formal records are maintained by the employer. The claimant’s testimony before the learned Tribunal was not shaken apropos his being a skilled workman. Therefore, for the learned Tribunal having taken into consideration the minimum wages for a ‘tarwala’ in the present case cannot be faulted with. The appellant’s argument in this regard is untenable and accordingly, the appeal is dismissed.
5. The statutory amount, alongwith interest accrued thereon, be deposited into the ‘AASRA’ Fund created by this Court for the treatment and rehabilitation of burn victims. MAC.APP. 1086/2017
6. This appeal impugns the award of compensation dated 18.08.2017 passed by the learned MACT in MACT No. 4780/16, seeking enhancement of the compensation granted to the appellant-injured.
7. It is undisputed that the claimant has suffered 71% permanent physical impairment in relation to his left lower limb, speech and mental illness. The functional disability assessed by the learned Tribunal was 35%.
8. The Court would note that the appellant-injured cannot do much on his own except for simple tasks, so his ability to work properly is affected to almost 71%. In the circumstances, the functional disability of the appellantinjured shall be assessed at 70%. It is so ordered.
9. The Court would note that the wheelchair of the injured-claimant is of the most rudimentary variety. He needs to be provided a better wheelchair. A fair and just compensation would include that he be made mobile to the optimum extent possible. Therefore, let the injured/claimant be provided with a motorized wheelchair of standard quality, with life time warranty, within three weeks of receipt of a copy of this order. The wheelchair shall be as per the suitability and comfort of the injured-claimant.
10. The Court had similarly directed the provision of a motorized wheelchair with a life time warranty to the injured/claimant in The United India Insurance Co. Ltd. vs. Phool Kumari & Ors., MAC. APP. 533/2017 decided on 26.08.2019. The SLP No. 27876/2019 against it, preferred by the insurer was dismissed by the Supreme Court on 04.12.2019. The insurer shall directly pay the supplier of the wheelchair, the cost of the same on the basis of an advance invoice. The insurer shall also provide the telephone numbers and E-mail Ids of its three responsible officers, who shall respond to the injured/claimant in case any difficulty arises apropos the functioning of the wheel chair. Should it require to be changed or upgraded, the same shall be at the cost of the insurance company. By the 5th day of January and August, the insurer shall ascertain the functioning of the wheelchair and otherwise rectify any malfunctioning of it within two days of receipt of such intimation.
11. The claimant/injured is at liberty to approach the Court in case of any difficulty. An affidavit of compliance of supply of wheelchair shall be filed by the insurer in four weeks after receipt of copy of this order. In default thereof, the case shall be listed for directions.
12. Furthermore, the ‘loss of future prospects’ have not been granted to the claimant which he would be entitled to @ 40% in terms of the dicta of the Supreme Court in Sarla Verma vs. Delhi Transport Corporation, (2009) 6 SCC 121, since he was 29 years of age at the time of the unfortunate accident. The same is granted to him. The amount payable under this head shall be Rs. 1,73,131/- (Rs. 14,722/-x12x70/100+40%).
13. The appellant further seeks enhancement in the compensation granted towards ‘loss of amenities and enjoyment of life’ and ‘disfigurement’, for which, Rs. 40,000/- and Rs. 25,000/- have been granted respectively. In view of the fact that the claimant had suffered such extensive injuries, especially which has affected his speech, comprehension and ability to take care of his family or otherwise and even to mingle in society, the same is enhanced accordingly to Rs. 3,00,000/- each. Additionally, the compensation towards ‘pain and suffering’ is enhanced to Rs. 2,00,000/- and the compensation granted towards ‘conveyance charges’, ‘special diet’ and ‘attendant charges’ is enhanced to Rs. 1,00,000/- under each head. In National Insurance Co. Ltd. vs. Shivani & Ors. MAC APP. 489/2019 decided on 24.04.2019, this Court had enhanced the compensation for ‘pain and sufferings’ to a six year old girl for injuries suffered by her from Rs. 1 lac to Rs. 5 lacs. The SLP No. 19579/2019 was dismissed by the Supreme Court on 23.08.2019.
14. Let the aforesaid amounts, alongwith interest @ 9% per annum from the date of filing of the claim petition till its realization, be deposited before the learned Tribunal within three weeks from the date of receipt of copy of this order to be released to the beneficiary of the Award in terms of the scheme of disbursement specified therein.
15. The learned counsel for the claimant submits that the impugned order has erred in granting compensation only for a period of six months towards his ‘loss of earnings’, whereas, the claimant was under extensive treatment up to the month of May 2015, which is borne out from the medical documents placed on record before the learned Tribunal which is an OPD slip of Safadarjung Hospital (page 183 of the LCR). It records that he has been prescribed medicines primarily for neurological disability, urine disorders and sleep disorder, alongwith medicines for pain. He was also advised physiotherapy.
16. The claimant is obviously not in a position to get back to work. His condition being what it is today shows that obviously it was no better than what it is presently, that is after six years of the accident. The photograph of the claimant shows the nature of injuries suffered by him.
17. The claimant’s photograph as of today submitted by his learned counsel has been taken on record. It is reproduced hereunder:
18. The learned counsel for the claimant submits that the accident, which occurred in 2014, has rendered him financially impoverished and he is almost at the grace of his friends, relatives and wellwishers. It is stated that he has otherwise taken loans which need to be repaid. Therefore, he requests, that some monies may be released right away.
19. In the circumstances, let an amount of Rs. 7,00,000/- be deposited into the account of the claimant in a Bank near his place of residence.
20. The appeal is disposed-off in terms of the above.
NAJMI WAZIRI, J JANUARY 20, 2020 AB