Full Text
Date of Decision: 02.09.2019
ALI ASGAR ..... Appellant
Through: Ms. Sarika Goel, Advocate.
Through: Mr. B.R. Sharma, Advocate for R-2.
Mr. Varun Sarin, Advocate for R-3.
JUDGMENT
1. This appeal seeks enhancement of the compensation granted by the learned MACT vide order dated 10.10.2017 in MACT No. 4619/16, on the ground that the appellant has suffered not only 74% disability apropos both his lower limbs but also a spinal injury i.e. fracture/dislocation L-3 and L-4 of his spinal cord because of the motor vehicular accident. The impugned order has recorded the disability as under:- “33.Medical Expenses:- Petitioner Ali Asgar, in his affidavit of evidence, has stated that after the accident, he was taken to JPNA Trauma Centre, AIIMS, New Delhi. As per MLC No. 545726 dated 03.03.2016 issued from JPNA Trauma Centre, AIIMS, New Delhi, doctor examining the petitioner after the accident has opined about the nature of injuries 2019:DHC:4291 suffered by the petitioner in the accident to be grievous. As per Discharge Summary Ex. PW-1/1 issued from JPNA Trauma Centre, New Delhi, petitioner remained hospitalized from 03.03.2016 to 28.03.2016. He was diagnosed to have suffered fracture dislocation L3-L[4] with fracture cuboid + mavicular fracture with sublaxation of naviculo-cuniform Lt leg. He was operated for decompression + post instrumentation with L3- L-4 interbody fusion on 12.03.2016. At the time of discharge, he was advised to take various medicines, to do regular physiotherapy at home and to come for review in Ortho OPD. As per Medical Opinion Report bearing No. 2-19/17-MR dated 29.09.2017 which was directly received from CMO (MRD & TC), Safdarjung Hospital, New Delhi, petitioner has suffered permanent physical impairment (PPI) of 74% in relation to bilateral lower limbs. Petitioner for claiming medical expenses relied upon medical bills (Ex. PW ½ Colly) which are in the sum of Rs. 21,801/-. Keeping in view the fact that petitioner suffered permanent physical impairment (PPI) of 74% in relation to bilateral lower limbs, a sum of Rs. 22,000/- is granted to the petitioner for medical expenses.”
2. The said appellant is present in the Court. He is holding a bamboo stick in his hand and he cannot move about on his own without seeking assistance.
3. While the permanent physical impairment apropos both his lower limbs is 74%, functional disability as a helper on a truck or any other employment as a helper would be 100%. Accordingly, his functional disability would be treated as 100% functional disability.
4. He was 24 years of age at the time of the accident, therefore, he would be entitled to compensation @ 40% towards “loss of future prospects” in terms of dicta of the Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi & Ors (2017) 16 SCC 680, [para 61(iv)].
5. Apropos compensation towards “pain and suffering”, he has been awarded only Rs. 35,000/-. The learned Tribunal has awarded the compensation under separate heads as under:
1. Compensation for medical expenses Rs.22,000/-
2. Compensation for pain & suffering Rs.35,000/-
3. Compensation for special diet, conveyance and attendant charges Rs.30,000/-
4. Loss of future earning capacity /future income Rs.5,44,655/-
5. Compensation for loss of amenities and enjoyment of life Rs.50,000/-
6. Compensation for disfigurement Rs.50,000/-
7. Loss of income during treatment Rs.40,890/-
8. Wheel chair Rs.50,000/- TOTAL Rs.8,22,545/-
6. It is argued that the compensation under serial nos. 2,3,[5] & 6 is on the lower side. The Court concurs with the submission of the learned counsel for the appellant in this regard. His disfigurement is evident as he is unable to move about except in great pain and only with the assistance of other people. This disfigurement would not only result in loss of amenities and enjoyment of life till his last breath, but also would affect his family life as well as his interaction with the family members, the same would be a case for pain and suffering throughout his life. In the circumstance, a consolidated additional amount under serial nos. 2,3,[5] & 6 is enhanced by Rs. 3.[5] lacs.
7. Insofar as the claimant has been admitted by the employer to be working and employed with him, whose permanent resident was in Fatehpur Uttar Pradesh i.e. in Central Uttar Pradesh. He could not have been coming to Delhi every day for employment. He must have had a residence in some place in Delhi, for which ordinarily, people in an unorganized sector do not always have a proof of residence. They are quite often accommodated by their acquaintance or relatives, on humanitarian grounds and/or sharing of rent for which there is not always some documentary evidence.
8. The claimant had claimed to be employed and to be working in Delhi; the employer’s residence and business is in Delhi; the accident happened in Delhi. It is the claimant’s case that he was also residing in Delhi. In the circumstance, the minimum wages applicable to an unskilled worker in Delhi shall be made applicable. Accordingly, the amount payable to him would be Rs. 9,178/-x12x18x140/100= 27,75,427/-+ Rs. 3.[5] lacs.
9. The total computed amount payable by the insurance company is as under: S.No. Head Amount i) Enhancement under non-pecuniary heads (A) Rs. 3,50,000/ii) Enhancement under loss of future prospects (B) (Rs.9,178/-x12x18x140/100=Rs. 27,75,427.2/- less Rs. 6,815/x12x18x37/100=Rs. 5,44,655/-) Rs. 22,30,772.2/iii) Interest on enhanced amount (C) (Rs. 3,50,000/- + Rs. 22,30,772.2/- = Rs. 25,80,772.2/- @ 9% p.a.(From 26.05.2016 to 20.09.2019) Rs. 7,70,057/iv) Interest paid on Rs. 50,000/- awarded by the tribunal for wheelchair @9% p.a. (From 26.05.2016 to 09.03.2018) (D) Rs. 8,035/v) Total Amount Payable (calculated upto 20.09.2019) [A+B+C] - D Rs. 33,42,794.21/-
10. The enhanced amount, alongwith interest @ 9% from the date of filing of the claim petition, shall be deposited within three weeks of receipt of copy of this order, to be released to the beneficiaries of the Award in terms of the scheme of disbursement specified therein.
11. The learned counsel for the appellant submits that Rs. 50,000/awarded towards purchase of wheelchair has not yet been used or appropriated, instead it would be best that the insurer itself provide a motorized wheelchair, whatsoever be the cost with the life time warranty. There is logic in the argument because the wheelchair will be required for a lifetime so it must have a lifetime warranty. In the same vein, the mobility in the wheelchair must be optimized, afterall with incessant use of the arms and hands, the wheelchair bound cannot travel long distances which she/he would have been able to with the wholesome unimpaired lower limbs. Therefore, to optimize the travel and movement, let a motorized wheelchair with lifetime warranty be provided by the insurer to the claimant. The same shall be serviced and kept in good order through the insurer. Should it need to be replaced, that too shall be the insurer’s responsibility. It is so ordered.
12. The appeal is disposed-off in the above terms.
NAJMI WAZIRI, J SEPTEMBER 02, 2019 RW