Jitender Kumar vs Virender Singh
2010 Latest Caselaw 557 Del

29
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +    MAC.APP.No.43/2009

                              Date of Decision: 2nd February, 2010
%

      JITENDER KUMAR                      ..... Appellant
                Through : Mr. S.N. Parashar, Adv.

                     versus

      VIRENDER SINGH                  ..... Respondent
               Through : Mr. Ram Ashray, 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.5,24,000/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 7th June, 2005 resulted in grievous

injuries to the appellant. The appellant was going on his

bicycle when he was hit by a bus bearing No.DL-1PA-6537.

The appellant‟s right leg was amputated below knee. The

disability of the appellant has been assessed to be 70% in

respect of right lower limb vide disability certificate -

Ex.PW4/A. Dr. Ramakant Gupta, one of the member of the

Medical Board which issued disability certificate, appeared in

the witness box as PW-4 and deposed that the disability in

respect of the full body was approximately 33%.

3. The deceased was doing a private job at the time of the

accident. In the absence of sufficient documentary proof, the

learned Tribunal took the minimum wages of Rs.3,100/- per

month, applied the multiplier of 17 and took the loss of

earning capacity to be 33%. The loss of earning capacity of

the appellant was computed to be Rs.2,09,000/-.

Rs.2,25,000/- has been awarded towards medical expenses,

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

Rs.50,000/- towards pain and suffering. The total

compensation awarded is Rs.5,24,000/-.

4. The learned counsel for the appellant has urged the

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

(i) The compensation for implantation of artificial

limb be awarded.

(ii) The compensation for loss of earning be enhanced

by taking the future prospects into consideration

and taking the loss of earning capacity to be

100%.

(iii) The compensation for pain and suffering be

enhanced.

(iv) The compensation be awarded for loss of

amenities of life.

(v) The compensation be awarded for disfiguration.

(vi) The compensation for conveyance be enhanced.

5. With respect to the implantation of artificial limb, the

appellant led additional evidence before this Court by

examining Assessment Officer of St. Stephen‟s Hospital as

A1W1 who deposed that the cost of artificial limb to be

implanted on the appellant is Rs.2,31,370/-. The cost of

fitment has been given as Rs.15,000/-. The total cost of the

artificial limb is Rs.2,46,370/-. A1W1 has given an

assessment of the hospitalization charges of the appellant

for fixation of the artificial limb. The estimate has been

proved as Ex.A1W1 according to which Rs.53,100/- is the

cost of implantation of artificial limb. The estimate of the

artificial limb has been proved as Ex.A1W2 by A1W1.

6. On the basis of the evidence of A1W1, Ex.A1W1 and

Ex.A1W2, this Court is satisfied that the appellant needs

implantation of artificial limb which would cost Rs.2,46,370/-

apart from the hospitalization charges of Rs.53,100/- by St.

Stephen‟s Hospital, Delhi. The total cost would come to

Rs.2,99,470/- (Rs.2,46,370 + Rs.53,100). Rs.2,99,470/- is

awarded to the appellant for implantation of the artificial

limb. Since the artificial limb is yet to be implanted, no

interest is awarded on the cost of artificial limb.

7. The learned counsel for respondent No.3 submits that

the appellant does not need implantation of artificial limb.

The learned counsel for respondent No.3 submits that the

artificial limb cannot be implanted in case of amputation of

leg below knee. The learned counsel submits that artificial

limb can be implanted only in case of amputation of leg

above knee. The learned counsel further submits that the

appellant‟s right leg would require further amputation up to

above knee level for implantation of the artificial limb. The

argument of the learned counsel for respondent No.3 is

absurd on the face of it and there is no material to support

the same and is, therefore, rejected.

8. The learned Tribunal has taken the minimum wages

into consideration for computation of loss of income.

However, the increase in minimum wages due to inflation

and rise in price index has not been taken into consideration.

9. It is well settled by the 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 the Court should take judicial notice of

increase in minimum wages to meet the increase in price

index and inflation rate. The Court has taken the view that

the minimum wages get doubled over the period of 10 years

and increase in minimum wages is not akin to future

prospects and the income should be computed by taking the

average of minimum wages and its double.

10. Following the aforesaid judgments, the income of the

appellant is taken to be Rs.4,650/- per month [(Rs.3,100 +

Rs.6,200)/2].

11. The learned Tribunal has taken the loss of earning

capacity of the appellant to be 33% on the basis of the

statement of PW-4. PW-4 has deposed in the witness box

that the disability of the appellant in respect of right lower

limb is 70% and in respect of the whole body is 33%.

However, PW-4 has not deposed as to the percentage of loss

of earning capacity of the appellant due to the amputation of

right lower limb. The appellant was doing private job at the

time of the accident. After the accident, the appellant

acquired HIV during blood transfusion given by the hospital

and has lost his job. Since no compensation has been

awarded to the appellant for amputation of artificial limb, the

appellant is moving with the help of a walker and is

unemployed since then. The appellant is present in the

Court and his condition has been perused.

12. In the facts and circumstances of this case, the loss of

earning capacity is taken to be 50%. Taking the income of

the appellant to be Rs.4,650/- per month and loss of earning

capacity to be 50%, the compensation for loss of income is

computed to be Rs.4,74,300/- (Rs.4,650 x 12 x 17 x 50%).

13. The learned Tribunal has awarded Rs.50,000/- towards

pain and suffering. No compensation has been awarded

towards loss of amenities of life and disfiguration. The law

with respect to the non-pecuniary compensation is well

settled by the judgment of this 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 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."

14. Following the aforesaid judgment, the non-pecuniary

compensation is enhanced to Rs.3,00,000/- under the

following heads:-

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

suffering

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

amenities of life

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

Total : Rs.3,00,000/-

15. The learned Tribunal has awarded compensation of

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

Rs.20,000/- is treated to be towards special diet which is fair

and reasonable. However, considering that the appellant has

suffered amputation of leg and is unable to travel by public

transport and is moving with the help of a walker, the

compensation for conveyance is on a lower side. The

compensation for loss on account of conveyance could have

been awarded on monthly basis but considering that the

appellant is unemployed and, therefore, does not have to

travel daily to the workplace and may be required to travel

for about five to seven days in a month, Rs.500/- per month

is awarded to the appellant towards conveyance. Applying

the multiplier of 17, the compensation on account of

conveyance is computed to be Rs.1,02,000/- (Rs.500 x 12 x

17). The aforesaid amount is discounted by Rs.22,000/- and

a lump-sum amount of Rs.80,000/- is awarded considering

that the said amount can be kept in fixed deposit and the

monthly interest thereon would be sufficient to meet the

conveyance expenses.

16. The appellant is entitled to total compensation of

Rs.13,98,770/- as per the break-up given hereunder:-

(i) Cost of artificial limb : Rs.2,99,470/-

(ii) Compensation for loss : Rs.4,74,300/-

of earning

(iii) Compensation towards : Rs.2,25,000/-

medical expenditure

(iv) Compensation towards : Rs.80,000/-

conveyance

(v) Compensation towards : Rs.20,000/-

special diet

(vi) Compensation towards : Rs.1,00,000/-

pain and suffering

(vii) Compensation towards : Rs.1,00,000/-

loss of amenities of life

(viii) Compensation towards : Rs.1,00,000/-

disfiguration Total : Rs.13,98,770

17. The appeal is allowed and the award amount is

enhanced from Rs.5,24,000/- to Rs.13,98,770 along with

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

petition till realization. Provided that the appellant shall not

be entitled to any interest on the cost of Rs.2,99,470/-

towards the artificial limb.

18. The enhanced award amount along with interest be

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

Court Branch A/c Virender Singh by means of a cheque

through Mr. M.M. Tandon, Member-Retail Team, UCO Bank

Zonal, Parliament Street, New Delhi (Mobile No.

09310356400) within 45 days.

19. The order of disbursement of the enhanced award

amount shall be passed on the next date of hearing.

20. List for directions on 22nd April, 2010.

21. All pending applications stand disposed of.

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

for the parties under the signature of Court Master.

J.R. MIDHA, J

FEBRUARY 02, 2010 aj