Lokesh Kumar Gupta vs Oriental Insurance Co.Ltd. & Ors.
2009 Latest Caselaw 3506 Del

9
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.887/2005

%                                 Date of decision: 2nd September, 2009


      LOKESH KUMAR GUPTA             ..... Appellant
                   Through : Mr. M.P. Singh and
                             Mr. Amresh Yadav, Advs.

                      versus

      ORIENTAL INSURANCE CO.LTD. & ORS. ..... Respondents
                    Through : Mr. Tarkeshwar Nath, Adv.


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.4,70,151/- has been

awarded to the appellant. The appellant seeks enhancement of

the award amount.

2. The accident dated 23rd July, 2002 resulted in grievous

injuries to the appellant. The appellant was riding on his bicycle

near Allahabad Bank, Narela Road, Delhi when he was hit by a

tempo bearing No.HR-06-A-6239 due to which the appellant fell

down on the road and his right hand was crushed under the front

wheel of the tempo. The appellant was 16 years old at that time

and was a student of 9th standard. The right hand of the

appellant up to palm and four fingers were amputated. The

permanent disability was assessed as 40%.

3. The learned Tribunal awarded Rs.4,70,151/-. The break-up

of the award amount is as under:-

(i) Loss of earnings during the period : Rs.7,500/-

of the treatment.

(ii) For the permanent disability : Rs.25,000/-

suffered up to 40%

(iii) Loss of proportionate future : Rs.1,44,000/-

earnings due to said permanent disability

(iv) Expenses over the medical bills : Rs.88,651/-

(v) Expenses over conveyance and : Rs.10,000/-

special diet

(vi) Loss of amenities of the life : Rs.10,000/-

(vii) For having suffered pain and : Rs.10,000/-

agony

(viii) Compensation towards future : Rs.1,75,000/-

medical treatment Total : Rs.4,70,151/-

4. The learned counsel for the appellant submits that loss of

income of the appellant should be computed according to

minimum wages at that time. The learned counsel for the

appellant further seeks enhancement of compensation towards

pain and suffering, loss of amenities of life and compensation

towards conveyance. The learned counsel for the appellant

further seeks compensation for reduction of matrimonial

prospects of the appellant. The appellant also seeks

compensation towards expenditure on conveyance as he is not in

a position to travel by public transport.

5. The appellant was 16 years at the time of the accident. He

was studying in 9th standard. Despite the amputation of right

hand up to palm and four fingers, the appellant continued his

education and completed matriculation in 2003 but he could not

get any employment and is running a small shop. The appellant

is present in the Court and condition of his amputated hand is

seen. The entire right hand up to palm and four fingers has been

amputated and only one thumb is left. The appellant is not in a

position to work with right hand. The amputation of right hand

has also disfigured the appellant. The appellant is unmarried and

his matrimonial prospects have diminished with the amputation

of right hand.

6. Considering the facts and circumstances of this case, the

appellant is entitled to compensation towards disfigurement as

well as compensation towards reduction in matrimonial

prospects. The learned Tribunal has not awarded any

compensation under these two heads. Rs.50,000/- is awarded

towards disfigurement and further amount of Rs.50,000/- is

awarded towards loss of matrimonial prospects.

7. The learned Tribunal has awarded Rs.25,000/- towards

permanent disability, Rs.1,44,000/- towards loss of income and

Rs.75,000/- towards loss of income during treatment. All these

three heads are treated as loss of income. The loss of income

has been calculated by taking notional income of Rs.22,500/- per

month. It is well settled that in such cases, the minimum wages

should have been taken into consideration. The minimum wages

for unskilled worker at the time of the accident were Rs.3,150/-

per month. It is well settled by catena of judgments of this Court

in the cases of Kanwar Devi vs. Bansal Roadways, 2008 ACJ

2182, Lekh Raj vs Suram Singh, 2007 ACJ 2165, 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 judicial notice be taken of

increase in minimum wages due to inflation and rise in price

index and that the minimum wages get doubled over the period

of 10 years and the average of minimum wages and its double be

taken to compute the income of the deceased for computation of

compensation. Following the aforesaid judgments, the income of

the appellant is taken to be Rs.4,725/- per month [(Rs.3,150 +

Rs.6,300)/2]. The appellant was aged 16 years at the time of the

accident and the appropriate multiplier according to the recent

judgment of the Hon'ble Supreme Court in the case of Sarla

Verma Vs. Delhi Transport Corporation, 2009 (6) Scale 129

is 18. Taking the income of the appellant to be Rs.4,725/- per

month and applying the multiplier of 18, the loss of income of the

appellant is computed to be Rs.10,20,600/- (Rs.4,725 x 12 x 18).

The appellant has suffered 40% disability. The loss of earning

capacity is taken to be 40% considering that the appellant's right

hand has been amputated and that the appellant was a right

hander. The loss of income taking the disability to be 40% is

assessed to be Rs.4,08,240/- (40% of Rs.10,20,600). The loss of

income of the appellant is enhanced from Rs.1,76,500/-

(Rs.1,44,000 + Rs.25,000 + Rs.7,500) to Rs.4,08,240/-.

8. The learned Tribunal has awarded Rs.88,651/- towards

expenditure on medical treatment which is fair and reasonable

considering the bills submitted by the appellant and, therefore, it

does not call for any interference.

9. The learned Tribunal has awarded compensation of

Rs.10,000/- towards pain and suffering, Rs.10,000/- towards loss

of amenities of life and Rs.10,000/- towards expenditure on

conveyance and special diet. Considering the amputation of right

hand and 40% disability and pain and agony suffered by the

appellant, the compensation for pain and suffering is enhanced

from Rs.10,000/- to Rs.25,000/-, compensation for loss of

amenities of life is enhanced from Rs.10,000/- to Rs.25,000/- and

compensation for conveyance and special diet is enhanced from

Rs.10,000/- to Rs.20,000/-.

10. The learned Tribunal has awarded Rs.1,75,000/- towards

future medical expenses. The amount under this head appears

to be on a higher side. It is also noted that the appellant is

unable to travel by public transport due to the amputation of

right hand and, therefore, has to spend considerable amount on

the conveyance for the rest of his life and, therefore, the

appellant is entitled to compensation for conveyance for rest of

his life due to amputation of right hand. The compensation of

Rs.1,75,000/- awarded towards future medical expenses is

reduced to Rs.1,00,000/- and it shall also include compensation

for expenditure on conveyance for rest of his life due to the

amputation of right hand.

11. The total compensation of the appellant is computed to be

Rs.7,66,891/- (Rs.50,000 towards disfigurement + Rs.50,000/-

towards loss of matrimonial prospects + Rs.4,08,240/- towards

loss of income + Rs.88,651/- towards expenditure on medical

treatment + Rs.20,000/- towards conveyance and special diet +

Rs.25,000/- towards pain and suffering + Rs.25,000/- towards

loss of amenities of life + Rs.1,00,000/- towards future medical

expenses and future conveyance).

12. The appeal is allowed and the award amount is enhanced

from Rs.4,70,151/- to Rs.7,66,891/-.

13. The learned Tribunal has awarded interest @9% per annum

on Rs.2,70,151/- and no interest on Rs.1,75,000/- which is not

disturbed. However, on the enhanced award amount the rate of

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

petition till realization. The enhanced award amount along with

interest be deposited by the appellant with the UCO Bank A/c

Lokesh Kumar Gupta, Delhi High Court Branch within 30 days.

14. Upon the aforesaid deposit being made, the UCO Bank is

directed to open Savings Bank Account in the name of the

appellant. UCO Bank is directed to release a sum of Rs.50,000/-

to the appellant by transferring the said amount to his savings

bank account. The remaining amount be kept in fixed deposit in

the name of the appellant for a period of five years.

15. The interest on the aforesaid fixed deposit shall be paid

monthly by automatic credit of interest in the Savings Account of

the appellant.

16. No cheque book be issued to the appellant without the

permission of this Court.

17. The original Fixed Deposit Receipt shall be retained by the

Bank in the safe custody. However, the original Pass Book shall

be given to the appellant along with the photocopy of the FDRs.

18. The original Fixed Deposit Receipts shall be handed over to

the appellant at the end of the fixed deposit period.

19. No loan, advance or withdrawal shall be allowed on the said

Fixed Deposit Receipt without the permission of this Court.

20. Half yearly statement of account be filed by the Bank in this

Court.

21. On the request of the appellant, the Bank shall transfer the

Savings Account to any other branch of UCO Bank in Delhi

according to the convenience of the claimants.

22. The appellant shall furnish all the relevant documents for

opening of the Saving Bank Account and Fixed Deposit Account

to Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal,

Parliament Street, New Delhi (Mobile No. 09310356400).

23. Copy of the order be given dasti to counsel for both the

parties under the signatures of the Court Master.

24. Copy of this order be also sent to Mr. M.M. Tandon, Member-

Retail Team, UCO Bank Zonal, Parliament Street, New Delhi

(Mobile No. 09310356400) through the UCO Bank, High Court

Branch under the signature of Court Master.

J.R. MIDHA, J SEPTEMBER 02, 2009 aj