Delhi High Court
Mahesh Garg vs Jumme Khan & Ors on 8 December, 2009
Author: J.R. Midha
28 & 37
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 8th December, 2009
%
+ MAC.APP. 368/2007
MAHESH GARG ..... Appellant
Through : Mr. O.P. Mannie, Adv. along
with the appellant.
versus
JUMME KHAN & ORS ..... Respondents
Through : Mr. Mirza Aslam Beg, Adv.
for Ms. Sonia Sharma, Adv.
for R-3.
+ MAC.APP. 374/2007
DIVYA GARG ..... Appellant
Through : Mr. O.P. Mannie, Adv. along
with the appellant.
versus
JUMME KHAN & ORS ..... Respondents
Through : Mr. S.L. Gupta, Adv. for R-3.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may YES
be allowed to see the Judgment?
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
JUDGMENT (Oral)
1. The appellants have challenged the award of the
learned Tribunal whereby compensation of Rs.4,10,000/- has
been awarded in MAC.APP.No.374/2007 and Rs.1,00,000/-
has been awarded in MAC.APP.No.368/2007. The appellant
in both the appeals seeks enhancement of the award
amount.
2. The accident dated 17th February, 2004 resulted in
injuries to Divya Garg and Mahesh Kumar Garg.
3. On 17th February, 2004 at about 11:40pm, Mahesh Garg
was driving two-wheeler scooter bearing No.DL-1SJ-4727 and
his daughter Divya Garg was sitting on the pillion. When the
scooter reached Shakti Nagar Chowk, G.T. Road, Delhi, the
scooter was hit by a truck bearing No.HR-38G-8831 resulting
in grievous injuries to the claimants.
MAC.APP.No.374/2007
1. Divya Garg was aged about 19 years at the time of the
accident and was a student of 2 nd year B.Sc (Hons.) in
Computer Science in Sahid Sukhdev College of Business
Studies at Vivek Vihar and was also taking coaching classes
for M.B.A. entrance examination. The appellant suffered
degloving injuries of low abdomen measuring 20 x 10 cms,
fracture right iliac crest, a big lacerated wound crush type
transverse in whole of lower abdomen and abdominal
contents were exposed. The appellant was taken to
Sushruta Trauma Centre for first aid and was immediately
shifted to LNJP Hospital where she remained for 31 days and
was discharged on 18th March, 2004. On 8th July, 2004, the
appellant was admitted to Safdarjung Hospital for 12 days for
treatment of split skin grafting (SSG) and poly traumatic raw
area (PTRA). She was discharged on 19th July, 2004 and she
continued as OPD patient till 25 th August, 2004. The
appellant thereafter took treatment from Sant Parmanand
Hospital and LNJP Hospital. On 31st May, 2005, the appellant
was admitted in Apollo Hospital where she underwent mesh
hernioplasty surgery and was discharged on 7th June, 2005.
The temporary disablement of Divya has been assessed by
the Board constituted by LNJP Hospital as 10%.
2. The learned Tribunal has awarded Rs.2,08,323.57
towards the expenditure on treatment. Rs.7,500/- towards
special diet, Rs.12,500/- towards conveyance, Rs.18,000/-
towards attendant charges and Rs.30,000/- towards future
treatment. The learned Tribunal has awarded Rs.55,000/-
towards pain and suffering and Rs.75,000/- towards loss of
amenities of life.
3. The learned counsel for the appellant has urged the
following grounds at the time of hearing of this appeal for
enhancement of compensation in respect of Divya Garg:-
(i) Compensation be awarded for loss of matrimonial
prospects.
(ii) Compensation be awarded for loss of one year for
the education of the appellant.
(iii) Compensation be awarded for loss of Rs.6,450/-
towards fees for MBA coaching which the
appellant could not take;
(iv) Compensation be awarded for loss of earned
leave for 101 days suffered by the mother of the
appellant for attending the appellant during the
period of her treatment.
4. The appellant suffered grievous injuries due to the
accident in question and she remained in treatment for
period of two years and the injuries suffered by her have left
permanent scar on the abdomen and the thigh region which
have resulted in disfiguration. The appellant was 19 years
old at the time of the accident. The appellant is presently 25
years old and still unmarried. Considering the reduction of
marriage prospects, Rs.1,00,000/- is awarded to the
appellant under this head.
5. The appellant was a student of 2 nd year B.Sc (Hons.) in
Computer Science at the time of the accident. She could not
pursue the studies due to the accident and suffered loss of
one year of education which is sufficiently proved by
Ex.PW4/170 to Ex.PW4/173. The learned Tribunal has not
considered this aspect and no compensation has been
awarded under this head. Rs.30,000/- is awarded to the
appellant for loss of one year of her education.
6. The appellant had deposited Rs.6,450/- with Time
Education (P) Limited for taking classes for M.B.A. entrance
test which has been duly proved by Ex.PW4/174. The
learned Tribunal has not awarded any compensation under
this head. Rs.6,450/- is awarded to the appellant for loss of
fee paid by her to Time Education (P) Limited as she could
not take the classes due to the injuries suffered in the
accident.
7. The appellant's mother is a Government servant and
she took earned leave for 101 days and she claimed the said
amount towards the loss suffered by her mother due to the
accident in question. The learned Tribunal has not awarded
any compensation under this head on the ground that the
compensation of Rs.18,000/- has been given for one
attendant.
8. The learned counsel for the appellant submits that
apart from the attendant, the mother took earned leave for
take care of the appellant. The earned leave of 101 days
taken by the appellant was proved as Ex.PW4/176 to
Ex.PW4/178. The salary of the mother of the appellant at the
time of the accident was Rs.11,598/- per month duly proved
by Ex.PW4/176. However, the appellant would have been
entitled to basic + D.A. as earned leave which is Rs.8,400/-
per month. Rs.25,200/- (Rs.8,400 x 3) is awarded for loss
suffered by the appellant's mother towards the earned leave
taken by her mother for taking care of the appellant.
9. The appellant is entitled to enhancement of
Rs.1,61,650/- (Rs.1,00,000/- for reduction of matrimonial
prospect, Rs.30,000/- for loss of one year of education,
Rs.6,450/- for loss of fee for M.B.A. coaching classes paid by
her to Time Education (P) Limited, Rs.25,200/- for loss
suffered by the appellant's mother towards the earned leave
taken by her mother for taking care of the appellant) towards
the compensation awarded to her.
10. The appeal is allowed and the award amount is
enhanced from Rs.4,10,000/- to Rs.5,71,650/- (Rs.1,61,650 +
Rs.4,10,000) along with interest @ 8% per annum from the
date of filing of the petition till realization.
11. The enhanced award amount along with interest be
deposited by respondent No.3 with UCO Bank, Delhi High
Court Branch A/c Divya Garg within 30 days.
12. Upon the aforesaid deposit being made, the UCO Bank
is directed to release the same to the appellant without any
restriction of fixed deposit.
MAC.APP.No.368/2007
1. Mahesh Garg suffered head injuries, fracture of right
occipital bone, thin SDH right occipital origin and multiple
abrasions and blunt injuries due to the accident. He was
initially take to Sushruta Trauma Centre from where he was
shifted to LNJP hospital where he remained admitted for 14
days and thereafter continued as O.P.D. patient for about
one year. The learned Tribunal awarded Rs.1,00,000/- in
respect of the injuries suffered by the appellant in the
accident which includes compensation of Rs.10,000/- for
medical treatment, Rs.5,000/- for special diet, Rs.5,000/- for
conveyance, Rs.40,000/- for pain and suffering, Rs.14,500/-
for loss on account of 30 days leave, Rs.25,500/- for loss of
amenities of life and general damages.
2. The learned counsel for the appellant has urged
following grounds at the time of hearing of this appeal.
(i) The appellant took 89 days earned leave and 11
days casual leave against which the learned
Tribunal has awarded compensation for only 30
days leave.
(ii) Compensation for pain and suffering be enhanced.
(iii) Compensation be also awarded for future
treatment.
3. The appellant has proved the earned leave of 89 days
by Ex.PW3/70. The salary of the appellant at the time of the
accident was Rs.13,210. However, the appellant would have
been entitled to basic + D.A. as earned leave which is
Rs.14,387.71 and the earned leave for 89 days comes to
Rs.43,145/- [(Rs.13,210 + Rs.1,171.71) x 3]. The
compensation of Rs.14,500/- for loss on account of 30 days
leave is enhanced to Rs.43,145/- on account of loss of 89
days leave.
4. The learned Tribunal has awarded Rs.40,000/- for pain
and suffering and Rs.25,000/- for loss of amenities of life and
general damages which is just, fair and reasonable.
5. The learned Tribunal has not awarded any
compensation for future treatment. The learned counsel for
the appellant submits that the appellant is spending
approximately Rs.300/- per month on the future treatment.
It is submitted that the appellant is regularly taking
medicines and the injuries suffered by the appellant in the
accident have not been fully cured.
6. Considering the injuries suffered by the appellant,
Rs.10,000 is awarded towards the future treatment.
7. The appeal is allowed and the award amount is
enhanced from Rs.1,00,000/- to Rs.1,38,645/- (Rs.43,145 +
Rs.10,000 + Rs.10,000 + Rs.5,000 + Rs.5,000 + Rs.40,000 +
Rs.25,500) along with interest @ 8% per annum from the
date of filing of the petition till realization.
8. The enhanced award amount along with interest be
deposited by respondent No.3 with UCO Bank, Delhi High
Court Branch A/c Mahesh Garg within 30 days.
9. Upon the aforesaid deposit being made, the UCO Bank
is directed to release the same to the appellant without any
restriction of fixed deposit.
10. Copy of this order be given 'Dasti' to learned counsel
for both the parties under signature of Court Master.
J.R. MIDHA, J
DECEMBER 08, 2009
mk
