R.N. Sharma vs Ashok Gautam & Ors.
2009 Latest Caselaw 2146 Del

22
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +    MAC.APP.214/2009

                                     Date of Decision: 19th May, 2009

%
      R.N. SHARMA                                 ..... Appellant
                            Through : Appellant in person.

                       versus

    ASHOK GAUTAM & ORS.               ..... Respondents
                  Through : Ms. Suman Bagga, Adv.
                            for R-2.
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.91,300/- has been

awarded by the learned Tribunal. The appellant seeks

enhancement of the award amount.

2. On 29th October, 2002, the appellant was crossing the

road opposite Nirman Bhawan when he was hit by Car

bearing registration No.DL-7CA-9577 driven rashly and

negligently by respondent No.1.

3. The appellant suffered fracture of Vth Metatorsal base

of his left foot for which he was plastered initially for three

days and then for four weeks. The appellant also suffered

injuries on left hand. His left ring and middle fingers were

strapped.

4. The appellant appeared in the witness box as PW1 and

deposed that he initially visited Dr. Vipul Jain who gave first

aid and advised x-ray which was got done by Precision

Diagnostic Centre. The appellant thereafter attended

Prasham Ortho Clinic where fresh x-ray was done and the

fracture of Vth Metatorsal base of left foot was found for

which the appellant was plastered for three days. After

opening the said plaster, a fresh plaster was put for four

weeks by Prasham Ortho Clinic. On 5th November, 2002, the

appellant attended Dr. Ram Manohar Lohia Hospital where

he was again x-rayed. On 5th November, 2002, the appellant

visited Dr. Dhar for second opinion, where the fractured foot

was replastered. The plaster was removed after eight weeks

on 6th January, 2003 and the appellant was advised

physiotherapy. Since the pain continued, the appellant

visited Prasham Ortho Clinic on 19th April, 2003 where he was

again x-rayed and some displacement was noticed by the

doctor.

5. The doctor advised the appellant for medical arch

support which was purchased from Manas Prosthetic &

Orthotic Clinic. The appellant is regularly using medical arch

support which costs about Rs.400/- and has to be replaced

every three months. However, no amount has been awarded

by the learned Tribunal for the said expenditure. Rs.10,000/-

is awarded to the appellant towards the cost of medical arch

support.

6. The appellant was unable to walk properly and put load

on his left foot. The appellant underwent physiotherapy for

about two years. The appellant proved the medical record as

well as the expenses on treatment as Ex.PW-1/1 to Ex.PW-

1/31.

7. The appellant produced PW-2 who was the attendant

employed by the appellant from November, 2002 to July,

2003 at a salary of Rs.3,000/- per month due to the inability

to attend to his daily routine due to the plaster fixed on his

leg.

8. The appellant also produced the driver as PW-3 who

was initially employed at a monthly salary of Rs.4,500/- w.e.f.

June, 2004 and subsequently the salary was increased to

Rs.5,500/- per month from July, 2005. The appellant was

unable to drive the vehicle and, therefore, had employed the

driver to drive his vehicle.

9. The learned Tribunal has awarded a sum of Rs.4,150/-

on account of medicines and medical treatment. The

appellant submits that he incurred expenditure of

Rs.19,000/- vide Ex.PW1/6 paid to South Ex Orthopaedic

Clinic. Ex.PW1/6 is the original certificate signed by Dr. M.L.

Dhar, Consultant Orthosurgeon who has certified that he

attended the appellant on 5th November, 2002 and gave the

walking plaster to the appellant for eight weeks and the cost

of medical consultation and procedure was Rs.6,000/- and he

advised the appellant for physiotherapy and Rs.13,000/- was

paid to the physiotherapist and the total expenditure

incurred by the appellant was Rs.19,000/-.

10. The learned Tribunal has not awarded the aforesaid

amount to the appellant on the ground that Ex.PW1/6 does

not bear the date and revenue stamp. Ex.PW1/6 is

sufficiently corroborated by the oral testimony of the

appellant and, therefore, the appellant has sufficiently

proved the expenditure of Rs.19,000/- on his treatment.

11. The appellant further submits that he incurred a further

sum of Rs.3,300/- towards the physiotherapy charges paid to

Nanda Vanam Health Centre vide receipts Ex.PW1/19,

Ex.PW1/20 and Ex.PW1/21 but the learned Tribunal neither

considered the said documents nor awarded the said

amount. Ex.PW1/19, Ex.PW1/20 and Ex.PW1/21 are original

receipts of payment made to Nandavanam Health Centre

and, therefore, a further sum of Rs.3,300/- is awarded to the

appellant towards the cost of treatment.

12. The appellant's left foot remained in plaster from 29 th

October, 2002 up to 6th January, 2003 and the appellant took

physiotherapy thereafter due to which his movement was

confined. The appellant employed an attendant for a period

of three months at a salary of Rs.3,000/- per month as he

was unable to attend to his household and other work. The

appellant produced the attendant in the witness box as PW2

to prove the employment as well as the amount paid by him

to the attendant. The appellant also employed a driver as he

was unable to drive the vehicle due to the fracture and the

plaster. The appellant has claimed Rs.5,500/- towards the

salary paid to the driver.

13. The learned Tribunal has not awarded any amount

towards the salary of the attendant and the driver on the

ground that the said amount has not been shown in the

Income Tax Return and the documentary evidence with

respect to the proof of salary paid has not been placed on

record. The appellant submits that the Income Tax Return -

Ex.PW1/27 shows the salary of Rs.60,000/- to the employees

and Ex.PW1/31 shows the salary of Rs.90,000/- to the

employees. It has been proved by sufficient evidence that

the appellant had suffered fracture of his left foot which

remained in plaster for more than eight weeks and he was

unable to drive and, therefore, had to employ an attendant

and a driver. There is no rebuttal to the evidence led by the

appellant.

14. The appellant is awarded a sum of Rs.9,000/- towards

the salary paid to the attendant for three months. With

respect to the salary of the driver, the appellant submits that

he is still employing a driver. However, the salary of the

driver can be awarded only for the period the appellant was

unable to drive. Although, the plaster of the appellant was

removed after eight weeks, he could not drive the vehicle for

at least five months, and therefore, lump sum amount of

Rs.20,000/- is awarded to the appellant towards the salary

paid to the appellant for employing the driver for the said

period.

15. With respect to the loss of income, the learned Tribunal

has awarded a sum of Rs.60,000/- towards the loss of income

for four months calculated at the rate of Rs.15,000/- per

month. The learned Tribunal has taken the income of the

appellant as Rs.15,000/- per month from the Income Tax

Return for the year 2003-04.

16. The learned counsel for the appellant submits that the

income of Rs.1,55,352/- for the year 2003-04 is the net

income after depreciation of car, computer and other items

and the income should have been taken into consideration

without taking the depreciation. If the deduction towards

depreciation is excluded, the income of the appellant for the

year 2002-03 would come to Rs.2,13,963/-. The monthly

income would be approximately Rs.18,000/- per month. The

compensation towards loss of income is, therefore, enhanced

from Rs.60,000/- to Rs.72,000/- (Rs.18,000 x 4).

17. The learned Tribunal has awarded Rs.15,000/- towards

pain and suffering to the appellant, Rs.5,000/- towards

compensation for loss of enjoyment and amenities of life and

Rs.5,000/- towards special diet. Considering the nature of

injuries suffered by the appellant and the period for which his

movement was confined and was unable to attend his official

work, compensation for pain and suffering is enhanced to

Rs.15,000/- to Rs.25,000/-, the compensation for loss of

enjoyment and amenities of life is enhanced from Rs.5,000/-

to Rs.20,000/- and the compensation for special diet is

enhanced from Rs.5,000/- to Rs.10,000/-.

18. The appellant is entitled to a total compensation of

Rs.1,94,597/- (Rs.10,000 + Rs.4,150 + Rs.19,000 + RS.3,300

+ Rs.2,147 + Rs.10,000 + Rs.9,000 + Rs.20,000 + Rs.72,000

+ Rs.25,000 + Rs.20,000).

19. The appeal is accordingly allowed. The award amount

is enhanced from Rs.91,300/- to Rs. 1,94,597/- along with

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

petition till realization.

20. Respondent No.2 is directed to deposit the award

amount with the learned Tribunal within 30 days. Upon such

deposit being made, the learned Tribunal is directed to

release the award amount to the appellant without any

restriction of fixed deposit.

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

for the parties under signatures of Court Master.

J.R. MIDHA, J

MAY 19, 2009 aj