Mohd.Feroz vs Roshan Lal & Ors.
2010 Latest Caselaw 2115 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +    MAC.APP.No.61/2007

                                 Date of Decision: 22nd April, 2010
%

        MOHD.FEROZ                    ..... Appellant
                          Through : Mr. S. Shahi, Adv.

                     versus

        ROSHAN LAL & ORS.           ..... Respondents
                      Through : Mr. Pradeep Gaur and
                      Mr. Amit Kumar Pandey, Advs. 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.5,54,100/- has been

awarded to him. The appellant seeks enhancement of the

award amount.

2. The accident dated 6th August, 2004 resulted in

grievous injuries to the appellant. The appellant was hit by

truck bearing No.HR-45-2931 at village Bhorgarh near DDA

Park. Both legs of the appellant were crushed under the

wheel of the truck. The appellant suffered multiple fractures

on both legs. The appellant remained hospitalized from 6 th

August, 2004 to 23rd October, 2004. As per the disability

certificate Ex.P-2, the appellant suffered permanent disability

of 70% in relation to both the legs. As per the discharge slip

Ex.P-8, the appellant was diagnosed for P.T.R.A, fracture

shaft left femur, commuted right patella, extreme Raw area

of both legs and Exposed Tibia.

3. The learned Tribunal has awarded Rs.35,000/- towards

pain and suffering, Rs.13,500/- towards reimbursement of

medical expenses, Rs.10,000/- towards special diet,

Rs.10,000/- towards conveyance, Rs.18,600/- towards loss of

income, Rs.4,17,000/- towards loss of future income and

Rs.50,000/- towards loss of enjoyment and amenities. The

total compensation awarded is Rs.5,54,100/-.

4. The learned counsel for the appellant has urged the

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

(i) Compensation for loss of income during treatment

be enhanced.

(ii) Compensation for loss of earning capacity due to

permanent disability be enhanced.

(iii) Compensation for conveyance be enhanced.

(iv) Compensation for pain and suffering and loss of

amenities of life be enhanced.

(v) Compensation be awarded for disfiguration and

reduction of loss of matrimonial prospects.

(vi) The compensation be awarded for attendant

charges.

5. The appellant was aged 18 years at the time of the

accident. The Claims Tribunal took the minimum wages of

the appellant as Rs.2,170/- per month and applied the

multiplier of 16 to compute the loss of earning capacity as

Rs.4,17,000/-.

6. The appropriate multiplier at the age of 18 according to

the judgment of Sarla Verma Vs. Delhi Transport

Corporation, 2009 (6) Scale 129 is 18 and, therefore, the

multiplier is enhanced from 16 to 18.

7. It is well settled by catena of 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 that

this Court should take judicial notice of increase in minimum

wages to meet the increase in price index and inflation rate.

This Court has taken the view that the minimum wages get

doubled over the period of 10 years and increase in

minimum wages should be taken as average of minimum

wages and its double. Following the aforesaid judgments,

the income of the deceased for computation of compensation

is taken as Rs.3,255/- [(Rs.2170 + Rs.4340)/2] being the

average of minimum wages and its double.

8. Taking the income of the appellant to be Rs.3,255/-,

applying the multiplier of 18 and taking 70% as loss of

earning capacity, the total loss of earning capacity of the

appellant is computed to be Rs.4,92,156/- (Rs.3,255 x 12 x

18 x 70%)

9. The appellant remained hospitalized from 6th August,

2004 to 23rd October, 2004 and the treatment continued

even thereafter. The Claims Tribunal has awarded loss of

income during the period of treatment for a period of six

months as Rs.18,500/-. The treatment continued for more

than one year. The loss of income during the treatment

period is, therefore, computed for a period of one year. The

compensation of Rs.26,040/- (Rs.2,170 x 12) is awarded

towards loss of income during the period of treatment.

10. The appellant had employed an attendant named

Anwar Ali from 8th August, 2004 from 23rd October, 2004. The

appellant paid Rs.8,000/- during the aforesaid period to

Anwar Ali for looking after the appellant. The Claims Tribunal

has noted the evidence of PW-6 in paragraph 9 of the award.

However, the Claims Tribunal erred in not awarding any

compensation to the appellant on that account. Considering

the evidence on record, Rs.8,000/- is awarded to the

appellant towards the attendant charges.

11. The Claims Tribunal has awarded a sum of Rs.10,000/-

to the appellant towards conveyance. The both legs of the

appellant have been crushed under the truck and he has

suffered 70% disability and is unable to walk without any

support. The appellant is present in Court and his condition

has been perused. The appellant is not in a position to travel

by public transport. The amount of Rs.1,000/- awarded by

the Claims Tribunal is grossly inadequate and without any

basis. The appellant is presently unemployed. The

compensation for loss of income has been awarded

presuming that his earning capacity is 30%. Assuming that

the appellant is able to find some employment, he shall have

to spend amount on travelling and even if the appellant is

not able to find any employment, he still needs to travel

sometime. This Court is of the view that, if the appellant

finds some employment, he would be spending Rs.1,500/-

per month on conveyance and, if he remains unemployed, he

may be spending Rs.300/- per month on conveyance for

travelling on account of social obligations and other bare

necessities of life, such as treatment, etc. In the facts and

circumstances of this case, the average of Rs.500/- per

month is fair compensation towards the conveyance charges.

Applying the multiplier of 18, the compensation on account

of conveyance is computed as Rs.1,08,000/-. This amount is

further discounted by Rs.8,000/- considering that the

appellant would keep the said amount in fixed deposit and

the interest thereon should be sufficient for the appellant to

meet the expenses of the conveyance and, therefore,

Rs.1,00,000/- is awarded for conveyance.

12. The Claims Tribunal has awarded Rs.35,000/- towards

pain and suffering and Rs.50,000/- towards loss of amenities

of life. In the case of Oriental Insurance Co. Ltd. vs.

Vijay Kumar Mittal (2008) ACJ 1300, 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."

13. Following the aforesaid judgment, the compensation for

pain and suffering is enhanced from Rs.35,000/- to

Rs.1,00,000/-. The compensation of enjoyment of life and

amenities of life is enhanced from Rs.50,000/- to

Rs.1,00,000/-. Rs.50,000/- has awarded towards disfiguration

and Rs.50,000/- towards loss of matrimonial prospects.

14. The appellant is entitled to following compensation:-

(i) Compensation for loss of : Rs.4,92,156/-

earning capacity

(ii) Compensation for loss of : Rs.26,040/-

income during treatment period.

(iii) Compensation for : Rs.1,00,000/-

conveyance

(iv) Compensation for : Rs.8,000/-

attendant charges.

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

and suffering

(vi) Compensation for loss of : Rs.1,00,000/-

amenities of life

(vii) Compensation for : Rs.50,000/-

disfiguration

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

matrimonial prospects

(ix) Compensation for special : Rs.10,000/-

diet

(x) Compensation for : Rs.13,500/-

medical expenses Total : Rs.9,49,696/-

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

enhanced from Rs.5,54,100/- to Rs.9,49,696/- along with

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

petition till 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.

16. The enhanced award amount along with interest be

deposited by respondent No.3 with UCO Bank A/c Mohd.

Feroz, Delhi High Court Branch 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 S. Shahi,

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 26th 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 Pradeep Gaur, Advocate.

17. Upon the aforesaid amount being deposited, the UCO

Bank is directed to release 10% of the same to the appellant

by transferring the same to his Saving Bank Account. The

remaining amount be kept in fixed deposit in the name of the

appellant in the following manner:-

(i) Fixed deposit in respect of 10% of the amount for

a period of one year.

(ii) Fixed deposit in respect of 10% of the amount for

a period of two years.

(iii) Fixed deposit in respect of 10% of the amount for

a period of three years.

(iv) Fixed deposit in respect of 10% of the amount for

a period of four years.

(v) Fixed deposit in respect of 10% of the amount for

a period of five years.

(vi) Fixed deposit in respect of 10% of the amount for

a period of six years.

(vii) Fixed deposit in respect of 10% of the amount for

a period of seven years.

(viii) Fixed deposit in respect of 10% of the amount for

a period of eight years.

(ix) Fixed deposit in respect of 10% of the amount for

a period of nine years.

18. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of the appellant.

19. 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.

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

permission of this Court.

21. 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 FDRs.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

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

the Savings Account to any other branch according to the

convenience of the appellant.

25. 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.

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

parties under the signatures of the Court Master.

27. 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 22, 2010 HL