Arvind Kumar v. Naresh Kumar & Ors.

1. The appellant was the claimant before the tribunal in MACT Claim Petition No.690/2009, which was decided by judgment dated 03.06.2010 returning finding that he had suffered injuries and became permanently handicapped on account of motor vehicular accident that had occurred on the night of 26th and 27th August, 2004 involving negligent driving of a goods carrier (TSR) bearing registration No.HR- 55A-3879, admittedly insured against third party risk with the third respondent (insurer) for the period in question. The driver of the said vehicle (first respondent) having been found to be guilty of negligence, the vicarious liability consequently placed on the door of the registered owner of the vehicle (second respondent), the insurer was called upon by the tribunal to pay compensation with interest at the rate of 9% per annum, it having been calculated thus:- 2017:DHC:5786

┌────────────────────────────────────────────────────────────────────────────┐
│      Sl.                      Head                    Amount (in Rs.)      │
│      No.                                                                   │
├────────────────────────────────────────────────────────────────────────────┤
│      1.      Medicines & treatment                            2,00,000/-   │
│      2.      Loss of income                                     86,800/-   │
│      3.      Loss of earning power                            5,95,200/-   │
│      4.      Loss of amenities                                  25,000/-   │
│      5.      Pain and suffering                                 25,000/-   │
│      6.      Conveyance & special diet                          25,000/-   │
│                                              Total            9,57,000/-   │
│ 2.         The appeal was filed by the claimants seeking enhancement of    │
└────────────────────────────────────────────────────────────────────────────┘

7. In the appeal, it has been submitted that the treating doctor had given advice that the claimant would need replacement of knee and in this regard reliance was placed on certificate and estimation vide documents Ex.PW-2/B and Ex.PW-1/C. The record of the tribunal does not seem to contain any document introduced in evidence as Ex.PW-1/C. The advice vide certificate (Ex.PW-2/B) regarding future need for replacement of the knee was noted by the tribunal. But then, no award towards such anticipated expenditure was added on the ground that the treating doctor when examined was not called upon to confirm such advice.

8. There is, however, a document (Ex.PW-1/5) in the tribunal’s record (at page 359) coupled with another document Ex.PW-1/4 (at page 357 of the tribunal’s record), both in the nature of estimates given, one for knee replacement and the other for implant removal. Since the focus of the ground taken in the appeal is on the knee replacement, the estimate dated 13.02.2007 vide Ex.PW-1/5 could and should have been taken into consideration by the tribunal. Thus, an amount of Rs.1,81,250/- deserves to be added to the compensation.

9. The appellant had also expressed grievance that the award under the head of loss of amenities in the sum of Rs.25,000/- only was deficient. Having regard to the nature of injuries suffered, this grievance appears to be proper. It is consequently raised to Rs.50,000/-.

10. Thus, there would be a net increase in the award by (1,81,250/- + 25,000/-) Rs.2,06,250/- (Rupees Two Lakhs Six Thousand Two Hundred Fifty Only), enhancing it by (9,57,000/- + 2,06,250/-) Rs.11,63,250/- rounded off to Rs.11,64,000/- (Rupees Eleven Lakhs Sixty Four Thousand Only).

11. The award is modified accordingly. It shall carry interest as levied by the tribunal.

12. The third respondent (the insurer) is directed to satisfy the enhanced award by requisite deposit with the tribunal within thirty days.

13. The appeal stands disposed of in above terms. R.K.GAUBA, J. SEPTEMBER 22, 2017 vk