Davinder Kumar vs Tejpal Singh & Ors.
2009 Latest Caselaw 5179 Del

33
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.211/2004

                            Date of Decision: 14th December, 2009
%

      DAVINDER KUMAR                      ..... Appellant
               Through : Mr. Aruna Mehta, Adv.

                          versus

      TEJPAL SINGH & ORS.              ..... Respondents
                Through : Mr. Mohan Babu Aggarwal, 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 appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.1,06,100/- had been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 19th April, 1995 resulted in grievous

injuries to the appellant. The appellant suffered fracture of

both legs as well as dislocation of jaw (mandible). The

surgery was performed on the femur bone of left leg and

mandible was tightened with wires. The learned Tribunal has

awarded Rs.20,000/- towards medical expenses, Rs.2,500/-

towards conveyance charges, Rs.5,000/- towards special

diet, Rs.5,000/- towards attendant charges, Rs.6,000/-

towards loss of income, Rs.57,600/- towards permanent

disability suffered by the appellant and Rs.10,000/- towards

pain and suffering. The total compensation awarded is

Rs.1,06,100/-.

3. The learned counsel for the appellant has urged the

following grounds at the time of hearing of this appeal:-

(i) The compensation for loss of income due to

permanent disability be enhanced.

(ii) The compensation for pain and suffering be

enhanced.

(iii) The compensation be awarded for loss of

amenities of life.

(iv) The compensation be awarded for disfiguration.

(v) The compensation for conveyance and special

diet be enhanced.

(vi) The compensation for attendant charges be

enhanced.

(vii) The rate of interest be enhanced from 6% per

annum to 7.5% per annum and be made effective

from the date of filing of the petition.

4. The appellant has suffered 25% disability in respect of

right knee joint. The appellant was running a tent house at

the time of the accident and he was personally doing the

work of electrician which he is unable to do after the

accident. The learned Tribunal has taken the functional

disability of the appellant to be 15%. Considering the nature

of injuries suffered by the claimant, the functional disability

of the claimant is enhanced from 15% to 20%. The learned

Tribunal has taken the income of the appellant according to

minimum wages at Rs.2,000/- per month and the multiplier

of 16 was applied to compute the loss of income.

5. The learned Tribunal has not taken the increase in

minimum wages due to inflation and rise in price index. It is

settled by the catena of judgments of this Court in the cases

of Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182,

National Insurance Company Limited vs. Renu Devi III

(2008) ACC 134 and UPSRTC vs. Munni Devi,

MAC.APP.No.310/2007 decided on 28.07.2008 that the

Court should take judicial notice of increase in minimum

wages to meet the increase in price index and inflation rate.

The Court has taken the view that the minimum wages get

doubled over the period of 10 years and increase in

minimum wages is not akin to future prospects and the

income should be computed by taking the average of

minimum wages and its double. Following the aforesaid

judgments, the income of the deceased is taken to be

Rs.3,000/- [(Rs.2,000 + Rs.4,000)/2].

6. Taking the disability to be 20%, the loss of income of

the appellant is computed to be Rs.1,15,200/- (Rs.3,000 x 12

x 16 x 20%). The learned Tribunal has awarded Rs.6,000/-

for loss of income. The learned Tribunal has awarded

Rs.57,600/- for permanent disability which is also treated to

be loss of income. The loss of income awarded by the

learned Tribunal is taken to be Rs.63,600/- (Rs.6,000 +

Rs.57,600) which is enhanced to Rs.1,15,200/-.

7. The learned Tribunal has awarded only Rs.10,000/- for

pain and suffering. The learned Tribunal has not awarded

any compensation for loss of amenities of life and

disfiguration. The appellant has suffered fracture in both

legs and dislocation of mandible and has undergone surgery

for insertion of rod in the left femur and the mandible was

tightened with wires. Considering the injuries suffered by

the appellant, the treatment taken by him and the

permanent disability suffered by him, the compensation

awarded for pain and suffering is enhanced from Rs.10,000

to Rs.30,000/-. Rs.30,000/- is awarded for loss of amenities

of life and further sum of Rs.30,000/- is awarded for

disfiguration.

8. The learned Tribunal has awarded Rs.2,500/- for

conveyance and Rs.5,000/- for special diet which considering

the nature of injuries suffered by the appellant is on a lower

side. The appellant was immobilized due to fracture for long

time and, therefore, substantial amount must have been

spent by him on the conveyance for visiting doctor. The

compensation for conveyance is, therefore, enhanced from

Rs.2,500/- to Rs.18,000/- and the compensation for special

diet is enhanced from Rs.5,000/- to Rs.7,000/-.

9. The appellant kept an attendant for six months at a

salary of Rs.2,000/- which was proved by the attendant who

appeared in the witness box as PW-4 and deposed that he

worked with the appellant for six months at a salary of

Rs.2,000/- per month. The learned Tribunal has awarded

Rs.5,000/- for attendant charges which is enhanced to

Rs.10,000/-

10. The claim petition was filed on 16th August, 1995.

However, the learned Tribunal has awarded interest @6%

per annum from 11th October, 1999 on the ground that there

was delay on the part of the appellant to prosecute his case.

It has time and again been emphasized that the

compensation is due when the appellant suffers injuries.

Under the Claim Procedure Manual for motor accident claims,

the Insurance Company has to investigate the matter and to

compute the compensation payable in accordance with law

and has to offer the same to the claimant. In such an event,

the delay on the part of the victim to prosecute his case

would have disentitled him to interest. However, the learned

counsel for respondent No.3 has not been able to show any

material as to the steps taken by respondent No.3 to assess

and offer the compensation payable in accordance with law.

In these circumstances, appellant is entitled to interest from

the date of filing of the claim petition till realization. The rate

of interest awarded by the learned Tribunal is on lower side.

Following the judgment of Dharampal & Ors. vs. U.P.

State Road Transport Corporation, III 2008 ACC (1) SC,

the rate of interest is enhanced from 6% per annum to 7.5%

per annum.

11. The appeal is allowed and the award amount is

enhanced from Rs.1,06,100/- to Rs.2,60,200/- (Rs.1,15,200/-

for loss of income and permanent disability + Rs.30,000/- for

pain and suffering + Rs.30,000/- for loss of amenities of life

+ Rs.30,000/- for disfiguration + Rs.18,000/- for conveyance

+ Rs.7,000/- for special diet + Rs.10,000/- for attendant

charges + Rs.20,000/- for expenses on medical expenditure)

along with interest @ 7.5% per annum from the date of filing

of the petition till realization.

12. The enhanced award amount along with interest be

deposited by respondent No.3 with UCO Bank, Delhi High

Court Branch A/c Davinder Kumar through Mr. M.M. Tandon,

Member-Retail Team, UCO Bank Zonal, Parliament Street,

New Delhi (Mobile No. 09310356400) within 30 days.

13. Upon the aforesaid deposit being made, the UCO Bank

is directed to release 40% of the same to the claimant and

the remaining amount be kept in fixed deposit for a period of

three years on which monthly interest be paid to him.

14. No loan, advance or withdrawal be permitted without

the permission of this Court.

15. List for reporting compliance on 3rd March, 2010.

16. Copy of this order be given 'Dasti' to learned counsel

for both the parties.

J.R. MIDHA, J DECEMBER 14, 2009 mk