Shashi v. Bhushi Kumar & Ors.

1. The appellant was the claimant before the motor accident claims tribunal in an accident claim case (Suit No.176/10) instituted by her on 24.04.2010, it having resulted in judgment dated 30.11.2011, whereby compensation in the total sum of Rs.2,69,500/- was awarded in her favour with interest @ 7.5% per annum, the liability having been fastened on the third respondent (insurer), it having admittedly issued the insurance policy covering third party risk in respect of the vehicle, the negligent driving of which was found to have given rise to the cause of action.

2. The tribunal awarded the compensation, calculating it thus:- 2017:DHC:7720

┌───────────────────────────────────────────────────────────────────────────────────┐
│ Sl.No.                        Heads                     Amount (in Rs.)           │
├───────────────────────────────────────────────────────────────────────────────────┤
│      1.      Medicines and medical treatment                            6,500/-   │
│      2.      Loss of earning capacity due to                         1,20,000/-   │
│              disability                                                           │
│      3.      Loss of amenities of life                                75,000/-    │
│      4.      Pain and suffering                                       50,000/-    │
│      5.      Conveyance                                               10,000/-    │
│      6.      Special Diet                                               8,000/-   │
│                                                Total                 2,69,500/-   │
│ 3.        It may be added here that the tribunal noted that the claimant          │
└───────────────────────────────────────────────────────────────────────────────────┘

7. It may be mentioned here that the appellant had moved an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (CPC) seeking opportunity to lead additional evidence and recall of Dr. Puneet Mishra (PW-2) who had been examined earlier during the course of inquiry before the tribunal. This application was resisted by the insurance company and kept pending to be considered in the light of the above facts and circumstances of the case as per order dated 18.01.2016.

8. It is noted that the claimant was 46 years’ old on the relevant date when she sustained injuries, the nature whereof is described in discharge summary (Mark ‘A’) of Lady Hardinge Medical College & Sucheta Kriplani Hospital, New Delhi where the treatment was undertaken, to be in the nature of open elbow dislocation with radial nerve palsy. The treatment administered included debridement and external fixations. Dr. Puneet Mishra (PW-2) one of the members of the medical board, during the course of his testimony, has stated that the disability suffered would be one-fourth in relation to the entire body. It is on that basis that the tribunal took it to be a case of functional disability to the extent of 25%. The medical officer having explained his assessment in the above manner, there would be no purpose served for he to be recalled for any further testimony. The request to that effect is, thus, declined.

9. There is no error or infirmity in the view taken by the tribunal on the extent of functional disability.

10. The award under various heads is found to be just and adequate. Therefore, the appeal and the pending application are dismissed. R.K.GAUBA, J. DECEMBER 11, 2017 vk