Acceptance of disability certificate and consideration of 100% loss of earning capacity.

JUDGMENT

Rekha Palli, J. (Oral)--These two appeals preferred under Section 173 of the Motor Vehicles Act 1988, one filed by the insurer and the other by the claimant, seek to assail the award dated 07.04.2021 passed by the learned Motor Accidents Claim Tribunal (the Tribunal). Vide the impugned award, the learned Tribunal has awarded a sum of Rs.31,55,292/- alongwith interest @6% p.a. as compensation to the claimant.

2. While the insurer by way of appeal being MAC.APP. 216/2021 is aggrieved by the grant of compensation, the claimant by way of MAC.APP. 278/2022 seeks enhancement of compensation.

3. Before dealing with the rival submissions of the parties, the brief factual matrix, as is necessary for adjudication of the present appeals, may be noted.

4. On 30.04.2013, the claimant aged 46 years, a cook in the Delhi Golf Club, while going on his motorcycle, met with an accident with a Santro car which car was found to be driven rashly and negligently by respondent no.2. As the said car was insured with the appellant in MAC.APP.216/2021, a claim petition came to be filed before the learned Tribunal.

5. The case of the claimant before the learned Tribunal was that on account of grievous injuries suffered by him due to the accident, he had become permanently disabled to the extent of 76.7%, and had therefore become dependent on others for carrying out even his daily activities. He was therefore no longer able to work as a cook or carry out his duties in any other vocation. He therefore claimed compensation on the ground of having become incapacitated from doing any work.

6. In support of his plea that he was suffering from 76.7% disability (rounded off to 77%) as a result of the injuries sustained by him in the accident, the claimant relied on a disability certificate issued by the Lok Nayak Hospital on 21.10.2019, after he was examined by a three-member Board. Before the tribunal, the said disability certificate was proved by Ms. Rita Mehta, a social worker working in the Lok Nayak Hospital, who was examined as PW-5.

7. Even though the insurer cross-examined PW-5, no suggestion was put to her that the disability certificate was fake. The insurer also did not move any application for summoning any of the doctors who had issued the disability certificate. On the other hand, the claimant in order to prove the disability certificate, had moved an application for summoning the doctors who had examined him. They, however, failed to appear before the learned Tribunal, and therefore the disability certificate was proved only by PW-5.

8. It was submitted before the Tribunal that due to the accident, the claimant was not able to perform any work whatsoever and therefore had no means of livelihood. It was claimed that while working as a cook in the Delhi Golf Club, he was drawing a salary of Rs.25,269/- besides overtime allowance. In support of this plea, the claimant examined PW-3, the Manager (HR) of the Delhi Golf Club, before the learned Tribunal who stated that in March 2013, besides the salary of Rs.25,269/-, the claimant was also paid overtime allowance of Rs.5,059/-. The wife and daughter of the claimant also appeared in the witness box to prove the details of the treatment undergone by the claimant including the details of his hospitalisation. They also stated in no uncertain terms, that as a result of the accident, the claimant was not able to perform any work and had in fact become dependant on others even for his daily activities.

9. By relying on the aforesaid evidence, the learned Tribunal came to the conclusion that, taking into account that he had become incapacitated from carrying on any job, the functional disability of the claimant was required to be taken as 77% and his monthly salary was proved to be Rs.25,269/-. The learned Tribunal accordingly awarded a sum of Rs.31,55,292/- as compensation to the claimant which included a sum of Rs.30,35,292 towards the loss of future income by applying the multiplier of 13.

10.