Himanshu vs Karamjit Singh
2009 Latest Caselaw 4724 Del

39
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                        +      FAO 467/2001

                            Date of Decision: 19th November, 2009
%

      HIMANSHU                                     ..... Appellant
                            Through : Mr. B.B. Jain, Adv.

                   versus

      KARAMJIT SINGH                            ..... Respondent
                            Through : Mr. Kamaldeep, 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.2,75,000/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 18th August, 1983 resulted in

compound fracture of shaft femur left leg, compound fracture

both bones left leg, compound fracture of ulna right with

moregic shock. The appellant‟s left leg had to be amputated

below the knee level. The appellant was admitted in the

hospital on the date of the accident. He remained

hospitalized from 18th August, 1983 to 28th October, 1983,

19th December, 1983 to 26th December, 1983 and again from

3rd July, 1984 to 2nd August, 1984 as per the medical record -

Ex.PW1/1, Ex.PW1/2 and Ex.PW2/3. The appellant has

become permanently disabled to the tune of 60%. The

disability certificate - Ex.PW1/A and Ex.PW2/4 describes the

disability of the appellant to be post-traumatic surgical

amputation of left lower extremity at below knee level.

3. The appellant was studying in XIIth Standard in Bal

Bharti Air Force School at the time of the accident. His father

was Group Captain in Air Force and the appellant also had

the aim of joining the Air Force. However, the appellant

could not continue his studies because of the accident in

question. He somehow learnt computers and joined a

computer job work earning Rs.2,000/- per month. The

appellant‟s matrimonial prospects were also reduced due to

the accident in question.

4. The learned Tribunal has awarded a sum of Rs.75,000/-

towards medical expenses, artificial limbs already replaced

and to be replaced in future and special diet and conveyance

and Rs.2,00,000/- towards non-pecuniary damages. The

total compensation awarded is Rs.2,75,000/-.

5. The learned counsel for the appellant has urged the

following grounds to challenge the impugned award:-

(i) The compensation be awarded for loss of income.

(ii) The compensation be awarded for reduction of

matrimonial prospects.

(iii) The compensation for pain and suffering and loss

of amenities of life be awarded.

(iv) The compensation for expenditure on conveyance

and special diet be awarded.

(v) The compensation on account of medical

expenses be enhanced.

6. With respect to the compensation for loss of income,

the appellant appeared in the witness box as PW-2 and

deposed that he had passed XIth Standard from Bal Bharti Air

Force School and he used to score 70% - 80% marks. The

appellant further deposed that his father was Group Captain

in Air Force and he wanted to join the Air Force but because

of the accident he could not study further and his dream of

joining the Air Force was shattered. He passed intermediate

by correspondence in 1987 and could not study thereafter.

The appellant further admitted that he learnt computers in

1997 and joined a petty job of computers and was earning

Rs.2,000/- per month. The loss of earning capacity of the

appellant is taken to be 60%. The appellant started earning

Rs.2,000/- per month in 1997 which is taken to be 40% of his

earning capacity meaning thereby the appellant would have

earned Rs.5,000/- per month if he had not suffered the

disability by the accident in question. The loss of income is,

therefore, taken to be Rs.3,000/- per month

(Rs.5,000 - Rs.2,000).

7. The appellant was aged 19 years at the time of the

accident and the appropriate multiplier at the age of 19 is

18. The loss of income of the appellant is, therefore,

computed to be Rs.6,48,000/- (Rs.3,000 X 12 X 18).

8. With respect to the medical expenses incurred by the

appellant on his treatment, the learned Tribunal has awarded

a sum of Rs.75,000/- towards the medical expenses. The

learned counsel for the appellant submits that the appellant

spent a sum of Rs.50,000/- on his treatment during the initial

period which was proved by bills, Ex.PW2/8 to Ex.PW2/63. It

is further submitted that besides the above expenditure, the

appellant got artificial leg costing Rs.6,000/- and the life span

of that leg was about 2½ years and it was replaced every 2½

years. The appellant had replaced six artificial legs at the

cost of Rs.36,000/-. Against the claim of Rs.86,000/-, the

learned Tribunal has awarded Rs.75,000/- which does not call

for any interference. However, the award of Rs.75,000/- shall

be treated only towards the medical expenses and the

artificial limb implanted by that time. It shall not include the

compensation towards the special diet and conveyance.

9. The appellant has suffered amputation of leg and has to

incur expenditure on conveyance for the whole life and he

may not be able to use the public transport for travelling.

Rs.50,000/- is awarded towards the conveyance and

Rs.15,000/- is awarded towards special diet.

10. The learned counsel for the appellant submits that after

the filing of this appeal, on 23rd March, 2004, the appellant

got the artificial limb replaced from M/s Otto Bock Health

Care India Pvt. Ltd. at the cost of Rs.58,821/-. It is further

submitted that the artificial limb of better quality with a

lifelong span is now available and the appellant has taken

the quotation of Rs.2,30,600/- from M/s Otto Bock Health

Care India Pvt. Ltd. for artificial limb. The appellant has led

additional evidence by appearing in the witness box and he

has proved the expenses of Rs.58,821/- on the artificial limb

by Ex.P-1 and the quotation of M/s Otto Bock Health Care

India Pvt. Ltd. is exhibited as Ex.P-2. It is further submitted

that there shall be maintenance cost of Rs.6,000/- every six

months on the said artificial limb. The appellant has also

examined the witness from M/s Otto Bock Health Care India

Pvt. Ltd. who appeared in the witness box and proved the

invoice of Rs.58,821/- dated 5th April, 2004 as Ex.P-3. The

receipts of the said payment by the appellant have been

proved as Ex.P-4 and Ex.P-5.

11. From the statement of the appellant recorded by this

Court and the witness from M/s Otto Bock Health Care India

Pvt. Ltd. and Ex.P-1 to P-5, it has been proved by sufficient

evidence that the appellant incurred an expenditure of

Rs.58,821/- on the artificial limb implanted on 23rd March,

2004 and that the appellant would require a further

expenditure of Rs.2,30,600/- for implantation of artificial limb

with maintenance cost of Rs.6,000/- every six months.

12. In these facts and circumstances, Rs.58,821/- is

awarded to the appellant towards the artificial limb

implanted on 23rd March, 2004 and Rs.3,00,000/- is awarded

for implantation of the artificial limb costing Rs.2,30,600/-

with six monthly maintenance cost at the rate of Rs.6,000/-.

13. Considering that the appellant has yet to take the

artificial limb, the appellant shall not be entitled to interest

on Rs.3,00,000/- and the payment in this regard shall be

released to M/s Otto Bock Health Care India Pvt. Ltd. after

the implantation of the artificial limb.

14. The learned Tribunal has awarded a sum of

Rs.2,00,000/- as non-pecuniary damages. The appellant is

entitled to non-pecuniary damages on account of amputation

under following four heads:-

(i) Compensation on account of pain and suffering

(ii) Compensation on account of loss of amenities

of life.

(iii) Compensation on account of disfiguration; and

(iv) Compensation on account of reduction of

matrimonial prospects.

15. In the case of Oriental Insurance Co. Ltd. vs. Satish

Sharma (2008) ACJ 2259, this Court examined all the

previous judgments with respect to the non-pecuniary

compensation awarded in the case of permanent disability

and held that the Courts have been awarding about

Rs.3,00,000/- under the heads of non-pecuniary damages for

amputation of leg with permanent disability of 50% and

above. The findings of this Court are reproduced

hereinunder:-

"17. From the aforenoted judicial decisions, a trend which emerges is that between the years 1985 and 1990, the courts have been awarding about Rs.3,00,000/- under the head „non- pecuniary damages‟ for amputation of leg resulting in permanent disability of 50 per cent and above."

16. Following the aforesaid judgment, compensation of

Rs.2,00,000/- awarded by the learned Tribunal towards non-

pecuniary damages is enhanced to Rs.3,00,000/- which shall

include the following heads:-

(i) Compensation for pain - Rs.1,00,000/-

and suffering

(ii) Compensation for loss - Rs.1,00,000/-

of amenities of life

(iii) Compensation for - Rs.50,000/-

disfiguration

(v) Compensation for loss of - Rs.50,000/-

marriage prospects

17. The appellant is entitled to total compensation of

Rs.13,81,821/- (Rs.6,48,000/- towards loss of income +

Rs.75,000/- towards medical expenditure incurred before the

passing of the award + Rs.58,821/- incurred by the appellant

for implantation of artificial leg in March, 2004 +

Rs.3,00,000/- towards purchase of artificial limb costing

Rs.2,30,600/- and half yearly maintenance @ Rs.6,000/- +

Rs.1,00,000/- for pain and suffering + Rs.1,00,000/- for loss

of amenities of life + Rs.50,000/- for disfiguration and

Rs.50,000/- for loss of marriage prospects).

18. The appeal is allowed and the award amount is

enhanced from Rs.2,75,000/- to Rs.13,81,821/-. The learned

Tribunal has awarded interest @9% per annum which is not

disturbed on the original award amount of Rs.2,75,000/-.

With respect to the artificial limb implanted on the appellant

in March, 2004 for which he made payment of Rs.58,821/- on

8th/23rd March, 2004, the interest shall be only for the period

from 24th March, 2004 up to the date of payment and with

respect to the artificial limb to be implanted in future, there

shall be no interest on Rs.3,00,000/- awarded hereinabove.

On the remaining enhanced award amount, the rate of

interest shall be 7.5% per annum from the date of filing of

the petition till realization.

19. The entire award amount along with interest be

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

Court Branch A/c Himanshu through Mr. M.M. Tandon,

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

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

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

is directed to release a sum of Rs.2,00,000/- to the appellant

by transferring the said amount to his Saving Bank Account.

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

five years on which monthly interest be paid to him by

automatic credit to his Saving Bank Account. No loan,

advance or withdrawal be permitted to the appellant without

the permission of this Court.

21. The aforesaid amount includes a sum of Rs.3,00,000/-

awarded to the appellant for purchase of the artificial limb

from Ms. Otto Bock Health Care India Private Limited. The

UCO Bank shall ensure that a sum of Rs.3,00,000/- shall not

be released to the appellant and this amount shall be

released directly to M/s Otto Bock Health Care India Private

Limited after the artificial limb is implanted and the invoice

along with a certificate certifying the implantation submitted

by M/s Otto Bock Health Care India Private Limited is

submitted to the UCO Bank.

22. The Otto Bock Health Care India Private Limited has

submitted an estimate of Rs.2,30,600/- for implantation and

Rs.6,000/- for half yearly maintenance. M/s Otto Bock Health

Care India Private Limited shall provide lifelong maintenance

of the artificial limb for which a sum of Rs.70,000/- shall be

released to them at the time of implantation of the artificial

limb.

23. Let an acceptance by M/s. Otto Bock Health Care India

Private Limited be placed in this regard before the next date

of hearing.

24. List for directions on 16th December, 2009.

25. Copy of this order be given „Dasti‟ to learned counsel

for both the parties under signature of Court Master.

26. Copy of this order be also sent to M/s Otto Bock Health

Care India Private Limited. Dasti copy be given to learned

counsel for the appellant who shall serve the same on M/s.

Otto Bock Health Care India Private Limited.

J.R. MIDHA, J

NOVEMBER 19, 2009 aj/mk