Tag Archives: #disability

Title: DILIP KUMAR SAH versus PARSHOTAM ALIAS PURSHOTAM LAL (SINCE DECEASED) THROUGH LRS & ANR.

Date of decision:18thJuly, 2023

+ MAC.APP. 133/2021

CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA

Introduction

Delhi High Court set aside the order passed by the Motor Accidents Claims Tribunal and held that there was no contributory negligence on the part of appellant and granted him the benefits of permanent disability and also held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

Facts of the case

In MACT case number 174/2017, captioned Sh.Dilip Kumar Sah v. Sh. Parshotam @ Purshotam Lal & Anr., the learned Motor Accidents Claims Tribunal issued an award on January 13, 2021, which is being challenged in this appeal.

The appellant’s two grounds for the limited challenge to the contested award are as follows:

1. a) Despite neither the owner of the at-fault vehicle nor the insurance company having submitted a written statement alleging any contributory negligence on the part of the appellant, the learned Tribunal has assigned the appellant 40% contributory negligence, reducing the compensation granted to the appellant;
2. b) Despite the fact that the appellant’s right lower limb was deemed to have a 41% permanent handicap, the appellant has not received any compensation for his future possibilities.

Analysis of the court

It is undisputed that neither the owner nor the insurance company provided the learned Tribunal with a written statement. The significance of pleadings cannot be understated, even if the learned Tribunal will only conduct an inquiry rather than a full-fledged trial as in a civil complaint. Therefore, the respondent did not blame the appellant for any contributory carelessness in their arguments. Only during the cross-examination of the appellant was the appellant prompted to describe how the accident occurred. The appellant vehemently refuted any allegation that he may have contributed to the catastrophe.

Reading the cross-examination of the appellant would reveal that he claimed to be riding a rickshaw across the main road from left to right. The same cannot, in my opinion, be regarded as contributory carelessness. Although the offending vehicle was being driven at a high speed and the driver was unable to control the vehicle or apply the brakes at the appropriate moment, the learned Tribunal, influenced by the foregoing, in the impugned Award assigned 40% of the negligence to the appellant.

The learned Tribunal manifestly erred in assuming that the appellant might be charged with contributory carelessness only on the basis of his cross-examination in the absence of any pleading assigning contributory fault to the appellant.

Therefore, the contested award is revoked to this degree.

On the subject of the appellant’s future prospects not being granted, reliance has once more been put on the appellant’s cross-examination, which has been reported above. Reading the cross-examination will reveal that the appellant was not questioned about whether the accident he sustained had any impact on his ability to earn money or do his job. According to his disability certificate, the appellant’s right lower limb has a 41% permanent impairment. The learned Tribunal determined that the appellant’s entire body had a 20% functional impairment. There is no argument against the erudite Tribunal’s conclusion.

In Pappu Deo Yadav (supra), the Supreme Court allowed for a 40% reduction in future possibilities. In my opinion, the appellant should be allowed that fair degree of loss of future chances under the circumstances of the current case as well. The appellant used to pedal the rickshaw by himself while conducting business at a weekly market selling clothing. The appellant is deemed entitled to compensation under the heading of loss of future prospect at the rate of 40% due to a permanent handicap to his lower limb. As a result, the impugned Award, to the extent that it denies the appellant compensation for the loss of future prospects, is set aside, and is modified granting such compensation. 

The learned Tribunal is required to reassess the amount of compensation due to the appellant under the provisions of the contested award as amended by the current ruling. On August 20, 2023, the parties must appear before the knowledgeable Tribunal. The awarded amount, including the augmentation directed under the current judgement, along with interest thereon, shall be disbursed in favour of the appellant in line with the schedule set down by the learned Tribunal upon deposit of the re-determined/enhanced amount.

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Written By – Shreyanshu Gupta

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