Pardeep Kumar v. National Insurance Co.Ltd

V.B.GUPTA, J. Bisht

* HIGH COURT OF DELHI : NEW DELHI MAC App. No.839 of 2005 % Judgment reserved on: 11th September, 2008 Judgment delivered on: 1st October, 2008 Pradeep Kumar, S/o Sh.Shyam Sunder Swarup R/o H.No.411, Sector-14, Dasundra-201012, Ghaziabad. ….Appellant Through: Mr.Anuj Soni, Adv. with Appellant in person. Versus 1.National Insurance Com Ltd. Division No.10, Flat No.101-106 1st Floor, B.M.C. House, Connaught Place, New Delhi-1. 2.Parkash, S/o Sh.Ajit Singh R/o VPO Mundka, New Delhi-110041. 3.D.T.C. Genral Manager, I.P.Estate, New Delhi .…Respondents. Through:Ms.Shanta Devi Raman, Adv. for respondent No. 1. Ms.Saroj Bidawat for respondent No.3. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present appeal under section 173 of the Motor Vehicles Act, 1988 (for short as "Act") for enhancement of compensation has been filed by the appellant, who is the injured in this case. 2. Vide impugned judgment dated 12th July, 2005 passed by Sh. Dharmesh Sharma, Judge, MACT, Delhi (for short as "Tribunal"), a sum of Rs. 13,46,360/- was awarded as compensation to the appellant along with interest @ 6% p.a. from the date of filing of the petition till realization. 3. Brief facts of this case are that on 12th June, 2004 at about 1.30 p.m., the appellant was travelling in DTC bus bearing No.DL-1P-B-6517 and was going from Peera Garhi, Delhi to Bahadur Garh. When the bus reached Bahadur Garh Bus Stand and the appellant was in the process of alighting from the bus, respondent No.2, Prakash who is the driver, started the bus in a rash and negligent manner. As a result thereof, appellant fell down and his right arm was crushed by the tyre of the bus. Due to the impact, the appellant also sustained head injuries and abrasions on other parts of the body. He was hospitalized and later on his right arm had to be amputated by the doctors. Appellant was 45 years of age at the time of accident and amputation of his right hand has resulted in permanent disablement and left him and his family on the verge of vagrancy. 4. The bus in question is owned by respondent No.3- DTC and it is insured with respondent No.1-National Insurance Company. 5. Respondents 2 & 3 driver and owner, contested the claim petition before the Tribunal and in the joint written statement, inter alia, took preliminary objection that there is no liability on them to pay compensation, since the vehicle was insured with respondent No.1. 6. On merits, it has been denied that the appellant was travelling in the bus or he fell down from the bus due to any rash and negligent driving on the part of the bus driver. In fact, the bus was being driven by bus driver in a proper manner and when the bus was entering the bus terminal of Bahadur Garh, then all of a sudden one passenger tried to get down from the moving bus and though the driver of the bus shouted, but the passenger neither stopped nor listened to him and fell down on the hard surface of the road. 7. Respondent No.1-National Insurance Company has admitted the factum of insurance. 8. It has been contended by the learned counsel for the appellant that the appellant placed two original Disability certificates on record, which was issued by Govt. Hospital Jhajjar and another certificate issued by Sir Ganga Ram Hospital. The Tribunal failed to appreciate that appellant"s left hand was not working since his childhood and after suffering the disability after the accident, his disability has gone up to 100% and thus, the Tribunal wrongly assessed the appellant"s disability to be 80%. 9. Other contention is that, the Tribunal failed to consider that after the severe injuries and amputation, a person would not have been able to do any work during the period of the treatment. The treatment of the appellant continued for about six months from the Government as well a