Jagbandhu Banerjee vs Santosh Kumar & Ors.
2010 Latest Caselaw 264 Del

30
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                       +       MAC.APP.No.114/2009

%                                 Date of decision: 19th January, 2010


      JAGBANDHU BANERJEE                 ..... Appellant
                   Through : Mr. Ashish Sharma and
                             Mr. Sunil Dalal, Advs. along
                             with appellant.

                      versus

      SANTOSH KUMAR & ORS.              ..... Respondents
                  Through : Ms. Shantha Devi Raman,
                            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.1,64,000/- has been

awarded to him . The appellant seeks enhancement of the award

amount.

2. The accident dated 19th August, 2003 resulted in grievous

injuries to the appellant. The appellant was standing on the red

light on his scooter when he was hit by Maruti Car bearing No.DL-

1CC-7589 from behind. The appellant fell down from his scooter

and suffered fracture of femur bone of his left leg. The appellant

was admitted in Safdarjung Hospital and was operated upon for

fixing a plate. The plate fixed by the surgeon inside the leg

deflected from the fixed position which did not improve with

treatment and finally another surgery was performed in

Safdarjung Hospital in April, 2004 for removal of the plate and

fixing a rod. The appellant remained hospitalized for the second

time from 13th April, 2004 to 22nd April, 2004. On 30th November,

2005, the doctors told the appellant to walk slowly. The

appellant's leg has become shorter and his disability has been

assessed as 12% vide disability certificate - Ex.P-1.

3. The learned counsel for the appellant has urged the

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

(i) The compensation for pain and suffering be enhanced.

(ii) The compensation for loss of amenities of life be

enhanced.

(iii) The compensation for disfiguration be awarded.

(iv) The compensation for loss of income and earning

capacity be enhanced.

(v) The compensation for conveyance be enhanced.

4. The appellant remained under treatment for about eight

months and considering that he underwent two surgeries during

this period and remained under immense pain and suffering, the

compensation for pain and suffering and loss of amenities of life

awarded by the learned Tribunal is on a lower side. The

compensation for pain and suffering is enhanced from

Rs.30,000/- to Rs.50,000/-. The compensation for loss of

amenities of life is enhanced from Rs.5,000/- to Rs.15,000/-. The

appellant has suffered shortening of leg and, therefore,

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

5. The learned Tribunal has awarded Rs.15,000/- for loss of

income during the period of treatment by taking the difference

between the Income Tax Return before the accident and after the

accident. During the financial year 2002-03, the appellant's

income was Rs.88,227/- which reduced to Rs.63,181/- in 2004-05.

The difference between the income of these years is Rs.25,046/-

(Rs.88,227 - Rs.63,181). The learned Tribunal has awarded

Rs.15,000/- towards loss of income during the period of treatment

which is enhanced to Rs.25,000/-.

6. The learned Tribunal has awarded Rs.68,817/- towards loss

of earning capacity due to permanent disability by taking the

permanent disability of the appellant in respect of whole body as

6%. There is no evidence on record to the effect that the

permanent disability in respect of the whole body was 6% and

the learned Tribunal has drawn this presumption without any

basis. Considering that the appellant's leg has been shortened,

the rod has been inserted and the appellant would not be in a

position to drive a two-wheeler and shall also have difficulty in

running and climbing, the permanent disability of the appellant is

taken to be 12% in respect of the whole body. The loss of

earning capacity of the appellant is, therefore, enhanced from

Rs.68,817/- to Rs.1,37,634/- (Rs.88,227 x 13 x 12%).

7. The learned Tribunal has awarded Rs.10,000/- towards

conveyance and special diet. Considering that there is

shortening of leg and the appellant is unable to drive a two-

wheeler due to insertion of a rod, the compensation for

conveyance certainly needs enhancement. The learned Tribunal

has awarded Rs.10,000/- towards conveyance and special diet

out of which compensation for special diet is treated to be

Rs.5,000/- and the compensation for conveyance is enhanced

from Rs.5,000/- to Rs.25,000/-.

8. The appellant is entitled to total compensation of

Rs.3,07,634/- (Rs.35,000/- towards medical expenditure +

Rs.50,000/- towards pain and suffering + Rs.15,000/- towards

loss of amenities of life + Rs.25,000/- for loss of income +

Rs.1,37,634/- for loss of earning capacity due to permanent

disability + Rs.25,000/- towards conveyance + Rs.5,000/-

towards special diet).

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

from Rs.1,64,000/- to Rs.3,07,634/-. The learned Tribunal has

awarded interest @9% per annum which is not disturbed on the

original award amount of Rs.1,64,000/-. However, on the

enhanced award amount, the rate of interest shall be @7.5% per

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

10. The enhanced award amount along with interest be

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

Branch A/c Jagbandhu Banerjee by means of a cheque through

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

Parliament Street, New Delhi (Mobile No. 09310356400) within 30

days.

11. Upon the enhanced award amount being deposited, UCO

Bank is directed to keep a sum of Rs.1,50,000/- in fixed deposit in

the name of the appellant in the following manner:-

(i) Fixed deposit for Rs.25,000/- for a period of six

months.

(ii) Fixed deposit for Rs.25,000/- for a period of one year.

(iii) Fixed deposit for Rs.25,000/- for a period of one and a

half years.

(iv) Fixed deposit for Rs.25,000/- for a period of two years.

(v) Fixed deposit for Rs.25,000/- for a period of two and a

half years.

(vi) Fixed deposit for Rs.25,000/- for a period of three

years.

12. The remaining amount be released to the appellant by

transferring the same to his Saving Bank Account.

13. The interest on the aforesaid fixed deposits shall be paid

monthly by automatic credit of interest in the Savings Account of

the appellant.

14. 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.

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

permission of this Court.

16. 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 FDR.

17. The original fixed deposit receipt shall be handed over to

the appellants on the expiry of the period of the FDR.

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

fixed deposit receipt 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

his convenience.

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.

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

parties.

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.

J.R. MIDHA, J

JANUARY 19, 2010 aj