Atish Kumar Nischal vs Jasmer Singh & Ors
2009 Latest Caselaw 3913 Del

28
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.162/2009

%                                Date of decision: 23rd September, 2009


      ATISH KUMAR NISCHAL            ..... Appellant
                    Through : Mr. O.P. Mannie, Adv.

                      versus

      JASMER SINGH & ORS           ..... Respondents
                    Through : Mr. Kanwal Choudhary, 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.13,00,432/- has been

awarded to him. The appellant seeks enhancement of the award

amount.

2. The accident dated 25th March, 2006 resulted in the

grievous injuries to the appellant. The appellant suffered Burst

Fracture of D2 Vertebral body with retropulsion of fractured

fragment encroaching into spinal cord, serious head injuries on

right side and fracture D2, D5 with complete paraplegia with

bladder and bowl involvement with brachlal plexus injury. The

permanent disability suffered by the appellant was assessed to

be 100% vide disability certificate- Ex.PW4/1.

3. The learned Tribunal awarded Rs.3,61,592/- towards the

compensation for medical treatment, Rs.20,000/- towards

conveyance and special diet, Rs.40,000/- towards attendant

charges, Rs.7,53,840/- towards loss of income due to permanent

disability, Rs.1,00,000/- towards pain and suffering, loss of

amenities of life and marriage prospects and Rs.50,000/- towards

loss of marriage prospects. The total compensation awarded is

Rs.13,00,432/-.

4. The learned counsel for the appellant has urged the

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

(i) The deduction of 1/3rd towards personal expenses while

computing loss of income due to permanent disability is not in

accordance with law.

(ii) Separate compensation be awarded for pain and suffering

and loss of amenities of life.

(iii) The compensation for conveyance and special diet be

enhanced.

(iv) The compensation for future treatment be awarded.

5. With respect to the loss of income due to permanent

disability, the learned Tribunal has taken the income of the

deceased to be Rs.5,578/- according to the minimum wages. The

learned Tribunal deducted 1/3rd towards personal expenses of the

deceased and applied the multiplier of 18 to compute the loss of

income to be Rs.7,53,840/-. It is well settled that the deduction

for personal expenses is permissible in death cases on the

ground that the deceased would have been spending the said

amount on himself. However, the deduction towards personal

expenses is not permissible in injury cases. The learned counsel

for the appellant refers to and relies upon the judgment of the

Hon'ble Supreme Court in the case of Oriental Insurance Co.

Ltd. vs. Ram Prasad Varma, I (2009) ACC 357 SC. The

deduction of 1/3rd by the learned Tribunal towards the personal

expenses is, therefore, set aside. The loss of income of the

deceased is taken to be Rs.12,04,848/- (Rs.5,578 x 12 x 18).

6. The learned Tribunal has awarded Rs.1,00,000/- towards

pain and suffering, loss of amenities of life and marriage

prospects. The learned Tribunal has further awarded Rs.50,000/-

towards loss of marriage prospects. It is well settled that the

compensation for pain and suffering, loss of amenities of life and

marriage prospects are separate heads and separate

compensation has to be awarded under the said heads.

Reference in this regard may be made to the judgment of this

Court in the case of Oriental Insurance Co. Ltd. vs. Vijay

Kumar Mittal, MAC.APP.No.228/2006 decided on 11th May,

2007 where this Court has examined the previous judgments and

awarded Rs.1,50,000/- towards pain and suffering, Rs.1,50,000

towards loss of amenities of life and Rs.1,00,000/- towards

marriage prospects in respect of 100% disability.

7. Following the aforesaid judgment, Rs.1,50,000/- is awarded

towards pain and suffering, Rs.1,50,000/- is awarded towards loss

of amenities of life and Rs.1,00,000/- is awarded towards

marriage prospects. The appellant is entitled to total

compensation of Rs.20,26,440/- (Rs.12,04,848/- towards loss of

income, Rs.3,61,592/- towards medical treatment, Rs.20,000/-

towards conveyance and special diet, Rs.40,000/- towards

attendant charges, Rs.1,50,000/- towards pain and suffering,

Rs.1,50,000/- towards loss of amenities of life and Rs.1,00,000/-

towards marriage prospects).

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

from Rs.13,00,432/- to Rs.20,26,440/- along with interest @7.5%

per annum from the date of filing of the petition till realization.

9. The enhanced award amount along with interest be

deposited by respondent No.3 by means of a cheque with UCO

Bank, Delhi High Court Branch. The cheque be drawn in the name

of UCO Bank A/c Atish Kumar Nischal.

10. Upon such deposit being made, UCO Bank is directed to

release a sum of Rs.1,50,000/- to the appellant by transferring

the said amount to the Savings Bank Account of the appellant.

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

seven years on which monthly interest be paid to him.

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

monthly by automatic credit of interest in the Savings Account of

the appellant.

12. 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.

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

the appellant at the end of the fixed deposit period.

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

Fixed Deposit Receipt without the permission of this Court.

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

Court.

16. 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 claimant.

17. 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).

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

parties under the signatures of the Court Master.

19. 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 23, 2009 aj