Kumar Ritvij vs Bhawan Kumar Jha & Ors.
2010 Latest Caselaw 661 Del

22
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.306/2007

                               Date of Decision: 5th February, 2010
%

      KUMAR RITVIJ                              ..... Appellant
                           Through : Mr. C. Mohan Rao, Adv.

                      versus

      BHAWAN KUMAR JHA & ORS.           ..... Respondents
                  Through : Mr. P.N. Talwar, 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.1,20,000/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount. Respondent No.2 has filed cross-

objections seeking reduction of the award amount.

2. The accident dated 2nd January, 2001 resulted in

grievous injuries to the appellant. The appellant was a pillion

rider on a two wheeler scooter driven by his father. On 2nd

January, 2001 at about 3:20 p.m., the said scooter was hit by

Ceilo car bearing No.HR-26G-3857 on the crossing of

I-Avenue Road towards Sarojini Nagar Market.

3. The appellant was aged 16 years at the time of the

accident and he suffered compound fracture of left shaft

femur bone besides peeling of skin and ligaments and

abrasions on many parts of the body. The appellant was

operated at St. Stephen's Hospital where a steel rod was

inserted and he was confined to bed for six months.

4. The learned Tribunal has awarded Rs.5,000/- towards

special diet, Rs.5,000/- towards conveyance, Rs.15,000/-

towards future expenses, Rs.75,000/- towards loss of salary

suffered by the mother who took leave to take care of the

appellant and Rs.20,000/- towards pain and suffering. The

total compensation awarded is Rs.1,20,000/-.

5. The learned counsel for the appellant has urged the

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

(i) Medical expenses of Rs.41,838/-, not reimbursed

by the employer of the appellant's father, be

awarded.

(ii) The compensation of Rs.44,000/- towards loss of

fees paid for IIT Engineering coaching be awarded.

(iii) The compensation of Rs.2,00,000/- towards loss of

earning capacity be awarded.

(iv) The compensation for special diet be enhanced

from Rs.5,000/- to Rs.13,000/-.

(v) The compensation for future expenses be

enhanced from Rs.15,000/- to Rs.40,000/-.

(vi) Rs.5,000/- be awarded for physiotherapy.

(vii) Rs.18,000/- be awarded for full time maid for six

months.

(viii) The compensation be awarded for loss of

amenities of life.

(ix) The compensation be awarded for disfiguration.

(x) The rate of interest be enhanced from 6% per

annum to 7.5% per annum.

6. The learned counsel for respondent No.3 has urged at

the time of hearing of this appeal in support of his cross-

objections that the award of Rs.75,000/- to the mother of the

appellant towards loss of salary be set aside.

7. With respect to the claim of Rs.41,838/- by the

appellant towards medical expenses not reimbursed by the

employer, no evidence has been led to prove that the

employer has not reimbursed Rs.41,838/- and, therefore, no

amount can be awarded to the appellant under this head.

8. With respect to the claim of Rs.44,000/- of the appellant

towards loss of fees paid to IIT Engineering for coaching, the

appellant paid Rs.6,500/- to Vidya Mandir and Rs.37,500/- to

FIITJEE. The Assistant Accountant of Vidya Mandir appeared

in the witness box as PW-6 and deposed that the appellant

paid Rs.6,500/- vide Ex.PW6/A. The officer of FIITJEE

appeared as PW-10 and deposed that the appellant qualified

the admission test for coaching in July, 2000 and paid

Rs.37,500/- vide receipt - Ex.PW10/1. PW-10 further

deposed that the appellant attended the course initially for

six months but he could not attend the course from January,

2001 to May, 2001 on account of the accident but he

attended the course thereafter for remaining period.

9. From the statement of PW-6 and PW-10 and

documents - Ex.PW6/A and Ex.PW10/1, it stands proved that

the appellant paid a sum of Rs.6,500/- to Vidya Mandir and

Rs.37,500/- to FIITJEE. The coaching course with FIITJEE was

for two years out of which the appellant could not attend the

course for six months. The appellant could not get admission

in IIT and the loss of coaching classes for six months due to

the accident made entire coaching redundant and, therefore,

the appellant suffered loss of Rs.44,000/- towards the

payment made to Vidya Mandir and FIITJEE. Rs.44,000/- is

awarded to the appellant towards loss of fees paid for

coaching of the Engineering course.

10. The appellant has claimed Rs.2,00,000/- towards loss of

earning capacity due to the injuries suffered in the accident.

There is no permanent disability suffered by the appellant

due to the accident in question and, therefore, the claim for

loss of earning capacity is rejected.

11. The appellant remained confined to bed for a period of

six months which has been proved by Ex.P-9/20 to Ex.P-9/23.

Considering the confinement of the appellant to bed for six

months, the compensation of Rs.5,000/- towards special diet

is enhanced to Rs.10,000/-.

12. The appellant claimed Rs.40,000/- towards future

expenses for removal of the rod for which the learned

Tribunal has awarded a sum Rs.15,000/-. No evidence has

been led by the appellant to prove the expenditure of

Rs.40,000/-. The learned counsel for the appellant submits

that judicial notice be taken of the fact that removal of the

rod would cost even more than Rs.40,000/-. More than nine

years have passed after the accident and the rod has not

been removed till now. Considering that the rod implanted in

the leg of the appellant would require removal/replacement

at some stage and the cost thereof could not be less than

Rs.40,000/-, the compensation of Rs.15,000/- awarded by the

learned Tribunal is enhanced to Rs.40,000/-.

13. With respect to claim of Rs.5,000/- towards the

physiotherapy, considering that the appellant suffered

fracture of femur bone of right thigh in which rod was

inserted and physiotherapy is mandatory for such cases,

Rs.5,000/- is awarded to the appellant towards the

physiotherapy.

14. With respect to the claim of Rs.18,000/- towards the full

time maid for six months, no receipt of payment made has

been proved by the appellant. The claim of Rs.18,000/- is,

therefore, rejected. The learned Tribunal has already

awarded Rs.75,000/- to the mother of the appellant towards

leave taken by her and, therefore, no further amount for

attending the appellant is warranted.

15. The learned counsel for Respondent No.2 seeks setting

aside the award of Rs.75,000/- by the learned Tribunal to the

appellant towards loss of salary due to leave taken by her

mother to attend the appellant. The leave of 152 days from

2nd January, 2001 to 2nd June, 2001 was proved by the

witness from Kendriya Vidyalaya who appeared as PW-5 and

proved the record - Ex.PW5/A to Ex.PW5/C. PW-5 further

deposed that the leave of 152 days availed by the mother of

the appellant was without pay. The award of Rs.75,000/- to

the appellant is, therefore, upheld.

16. The learned Tribunal has not awarded any

compensation for loss of amenities of life and disfiguration,

Rs.15,000/- is awarded for loss of amenities of life and

Rs.15,000/- is awarded towards disfiguration.

17. The appellant is entitled to total compensation of

Rs.2,29,000/- (Rs.10,000 + Rs.5,000 + Rs.40,000 +

Rs.75,000 + Rs.20,000 + Rs.44,000 + Rs.5,000 + Rs.15,000

+ Rs.15,000)

18. The learned Tribunal has awarded interest @6% per

annum which is on a lower side. Following the judgment of

the Hon'ble Supreme Court in the case of Dharampal vs.

U.P. State Road Transport Corporation, III 2008 ACC

(1) SC, the rate of interest is enhanced from 6% per annum

to 7.5% per annum.

19. The appeal is allowed and the cross-objections are

dismissed. The award amount is enhanced from

Rs.1,20,000/- to Rs.2,29,000/- along with interest @7.5% per

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

20. The enhanced award amount along with interest be

deposited by respondent No.2 with UCO Bank A/c Kumar

Ritvij, Delhi High Court Branch through Mr. M.M. Tandon,

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

New Delhi (Mobile No. 09310356400) within 30 days.

21. Upon the enhanced award amount being deposited, the

UCO Bank is directed to keep 50% of the same in the fixed

deposit for a period of six months with cumulative interest.

22. The remaining amount be released immediately to the

appellant by transferring the same to his Saving Bank

Account.

23. Copy of this order be given 'Dasti' to learned counsel

for the parties under the signature of 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

FEBRUARY 05, 2010 aj