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2010 DIGILAW 30 (DEL)

National Insurance Co. Ltd. v. Gurudev

2010-01-11

J.R.MIDHA

body2010
JUDGMENT : J.R. MIDHA, J. 1. The appellant has challenged the award of the learned Tribunal whereby compensation of Rs. 7,58,996/- has been awarded to respondent No. 1. The appellant seeks reduction of the award amount. 2. The accident dated 7.9.2006 resulted in the grievous injuries to respondent No. 1. The respondent was going on his motor cycle bearing No. DL 4S-AY 6852 when he was hit by Maruti car bearing No. HR 13-B 0886. Respondent No. 1 remained hospitalised intermittently till 16.11.2007. The injuries suffered by respondent No. 1 are as under: (i) Fracture tibia and fibula with loss of skin with multiple fracture of right and left leg. (ii) Fracture femoral condyle, fracture medial malleolus. (iii) Fracture calcaneum right leg. (iv) Loss of skin. (v) Deep wound on right buttock close to natal cleft right lower limb. (vi) Tibial pins and two pins in the first and fifth MT bones fixed. 3. The disability of respondent No. 1 was assessed to be 45 per cent in respect of left lower limb as per disability certificate, Exh. PW1/1. Respondent No. 1 had passed Senior Secondary Certificate Examination and was also holding a Diploma in Information and Technology. Respondent No. 1 claimed that he was working as a Document/Instalment Collector with H.R.D. Services and earning Rs. 5,000/- per month. However, in the absence of any documentary proof of income, the learned Tribunal took the minimum wages of Rs. 5,640 after considering increase in minimum wages due to inflation and rise in price index. Learned Tribunal assessed the loss of earning capacity of respondent No. 1 to be 30 per cent and the loss of earning capacity was computed at Rs. 3,65,472/- [30 per cent of (Rs. 5,640 x 12 x 18)]. Learned Tribunal further awarded Rs. 15,000 for special diet, Rs. 15,000/- towards attendant charges, Rs. 18,800/- for loss of income, Rs. 50,000/- towards pain and suffering, Rs. 70,000/- for loss of amenities of life and Rs. 40,000/- for disfigurement. The total compensation awarded is Rs. 7,58,996/-. 4. The learned Counsel for the appellant has urged following grounds at the time of hearing of this appeal: (i) The loss of earning capacity of the respondent No. 1 be reduced from 30 per cent to 10 per cent or 15 per cent. (ii) The compensation for loss on account of conveyance be reduced. 5. 7,58,996/-. 4. The learned Counsel for the appellant has urged following grounds at the time of hearing of this appeal: (i) The loss of earning capacity of the respondent No. 1 be reduced from 30 per cent to 10 per cent or 15 per cent. (ii) The compensation for loss on account of conveyance be reduced. 5. The learned Tribunal has taken the loss of earning capacity of respondent No. 1 as 30 per cent considering the fact that respondent No. 1 was unable to walk fast, run as well as drive two-wheeler and the nature of occupation of respondent No. 1 was such that he needed to stand, walk and drive. Respondent No. 1 has also been incapacitated to climb stairs. The permanent disability of respondent No. 1 in relation to left lower limb has been assessed to be 45 per cent. Although there are no set norms for assessing permanent disability in respect of whole body, PW 2 deposed that the permanent disability in relation to whole body would be 10 per cent to 15 per cent. 6. The loss of earning capacity has to be assessed by taking the occupation of the injured and the effect of the injuries on the occupation. The percentage of permanent disability and the loss of earning capacity are two different concepts and the loss of earning capacity has to be assessed by taking the occupation and effect of the injuries on the occupation into consideration. Respondent No. 1 is present in court and his injuries have been perused by this court. The learned Tribunal has taken the loss of earning capacity to be 30 per cent which is just, fair and reasonable in the facts and circumstances of this case. 7. The amount awarded by the learned Tribunal towards conveyance is also just, fair and reasonable considering the nature of injuries suffered by respondent No. 1 and the period of his treatment. 8. For all the aforesaid reasons, the appeal is dismissed.