Sikander vs Ravinder Singh & Ors.
2010 Latest Caselaw 1800 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                  +       MAC.APP.No.138/2008

                                    Date of Decision: 7th April, 2010
%

      SIKANDER                             ..... Appellant
                           Through : Mr. K.K. Dubey, Adv.

                      versus

      RAVINDER SINGH & ORS.       ..... Respondents
                   Through : Ms. Hemangi Saikia, Adv. for
                             R-2.
                             Mr. Kanwal Choudhary, 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.2,81,303/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 25th July, 2005 resulted in fracture

of both the legs of the appellant. The appellant‟s right leg

below knee was amputated. The appellant remained in

hospital from 26th July, 2005 to 28th August, 2005, 29th

August, 2005 to 13th October, 2005 and 23rd October, 2005 to

2nd November, 2006.

3. The Claims Tribunal awarded Rs.30,000/- towards pain

and suffering, Rs.6,846/- towards medical expenditure,

Rs.10,000/- towards conveyance and special diet, Rs.15,224/-

towards loss of income during treatment and Rs.2,19,233/-

towards loss of earning capacity. The total compensation

awarded is Rs.2,81,303/-.

4. The learned counsel for the appellant urged following

grounds at the time of hearing of this appeal:-

(i) The compensation for loss of income be awarded

for a period of one year.

(ii) The compensation for loss of earning capacity due

to permanent disability be enhanced.

(iii) The compensation for pain and suffering be

enhanced.

(iv) The compensation be awarded for loss of

amenities of life and disfiguration.

5. Vide certificate dated 18th November, 2005, the

permanent disability of the appellant was assessed by LNJP

Hospital to be more than 40%. The appellant examined the

witness, namely, Ms. Rita Mehta, Medical Social Worker who

deposed that as per the Workmen‟s Compensation Act, the

permanent disability suffered by the appellant was 60%.

However, since the Board constituted by LNJP Hospital has

not specified the exact percentage of disability, vide order

dated 10th November, 2009, the Medical Superintendent of

LNJP Hospital was directed to determine the exact of

permanent disability suffered by the appellant. In pursuance

to the above order, LNJP Hospital constituted the Board

which again examined the appellant and issued a fresh

disability certificate dated 4th January, 2010 in which

permanent disability of the appellant has been assessed to

be 80% in relation to both lower limbs. The appellant was a

fruit vendor and the loss of earning capacity of the appellant

is taken to be 55% in respect of the whole body. The Claims

Tribunal has taken the minimum wages of Rs.3,044.90 to

compute the loss of earning capacity. However, the Claims

Tribunal has not taken the increase in minimum wages due

to inflation and rise in price index into consideration in terms

of the 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.

6. Following the aforesaid judgments, the income of the

appellant is taken to be Rs.4,567/- [(Rs.3,044.90 +

Rs.6,090)/2]. Taking the income of the appellant to be

Rs.4,567/-, applying the multiplier of 15 and taking the loss

of earning capacity as 55%, the loss of earning capacity of

the appellant is computed to be Rs.4,52,133/- [55% of

(Rs.4,567 x 12 x 15)].

7. The Claims Tribunal has awarded a sum of Rs.15,224/-

towards loss of income for five months. The appellant

remained under treatment for about one year and, therefore,

the loss of income for one year is enhanced from Rs.15,224/-

to Rs.54,804/- (Rs.4,567 x 12).

8. The Claims Tribunal has awarded a sum of Rs.30,000/-

towards pain and suffering. No compensation has been

awarded towards loss of amenities of life and disfiguration.

The learned counsel refers to and relies upon the judgment

of the Hon‟ble Supreme Court in the case of Oriental

Insurance Co. Ltd. vs. Vijay Kumar Mittal (2008) ACJ

1300, where this Court examined all the previous judgments

with respect to the non-pecuniary compensation awarded in

the cases 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."

9. Following the aforesaid judgment, the compensation for

pain and suffering is enhanced from Rs.30,000/- to

Rs.1,00,000/-. Rs.1,00,000/- is awarded towards loss of

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

disfiguration.

10. The appellant is entitled to total compensation of

Rs.8,23,783/- (Rs.4,52,133/- towards loss of earning capacity

+ Rs.54,804/- towards loss of income for one year +

Rs.1,00,000/- towards pain and suffering + Rs.6,846/-

towards medical expenditure + Rs.10,000/- towards

conveyance and special diet + Rs.1,00,000/- towards

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

11. The appeal is allowed with costs. The award amount is

enhanced from Rs.2,81,303/- to Rs.8,23,783/- along with

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

petition up to the date of notice of deposit under Order XXI

Rule 1 of the Code of Civil Procedure. The cost of the appeal

is assessed at Rs.25,000/- based on the memo of fees filed

by the counsel for the appellant at the time of hearing of this

appeal.

12. The enhanced award amount along with interest be

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

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

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

New Delhi (Mobile No. 09310356400) within 40 days. The

cost of Rs.25,000/- of this appeal be deposited by respondent

No.3 by means of separate cheque in the name of K.K.

Dubey, Advocate along with the deposit of the enhanced

award amount. In view of the judgment of this Court in Sat

Prakash vs. Jagdish, FAO.No.365/1999 decided on 26 th

March, 2010, the legal fee of the counsel for respondent

No.3 be also deposited with UCO Bank by means of a

separate cheque in the name of Mr. Kanwal Choudhary,

Advocate.

13. Upon the enhanced award amount being deposited,

UCO Bank is directed to release 10% of the amount to the

appellant by transferring the same to his Savings Bank

Account. The remaining amount be kept in the fixed

deposits in the name of appellant in the following manner:

(i) Fixed deposit in respect of 10% of the award

amount for a period of one year.

(ii) Fixed deposit in respect of 10% of the award

amount for a period of two years.

(iii) Fixed deposit in respect of 10% of the award

amount for a period of three years.

(iv) Fixed deposit in respect of 10% of the award

amount for a period of four years.

(v) Fixed deposit in respect of 10% of the award

amount for a period of five years.

(vi) Fixed deposit in respect of 10% of the award

amount for a period of six years.

(vii) Fixed deposit in respect of 10% of the award

amount for a period of seven years.

(viii) Fixed deposit in respect of 10% of the award

amount for a period of eight years.

(ix) Fixed deposit in respect of 10% of the award

amount for a period of nine years.

14. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of the appellant.

15. Withdrawal from the aforesaid account shall be

permitted to the appellant after due verification and the

Bank shall issue photo Identity Card to the appellant to

facilitate identity.

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

permission of this Court.

17. The Bank shall issue Fixed Deposit Pass Book instead of

the FDRs to the appellant and the maturity amount of the

FDRs be automatically credited to the Saving Bank Account

of the beneficiary at the end of the FDR.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

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

the Savings Account to any other branch of UCO Bank

according to the convenience of the appellant.

21. 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).

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

parties under signatures of the Court Master.

23. 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

APRIL 07, 2010 aj