Ahmed Suhail Siddiqui vs D.T.C. & Anr.
2010 Latest Caselaw 307 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.113/2007

                               Date of Decision: 20th January, 2010
%

      AHMED SUHAIL SIDDIQUI              ..... Appellant
                    Through : Mr. Sumit Gupta, Adv.

                      versus

      D.T.C. & ANR.                             ..... Respondents
                           Through : Mr. Ataul Haque, Adv.
                                     for R-1.

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.2,00,000/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 19th January, 1992 resulted in the

grievous injuries to the appellant who filed the claim petition

before the learned Tribunal. The appellant was driving his

car bearing No.DHD 4216 on Captain Gaur Marg, Opposite

Okhla DTC Depot. It is a double road with a divider in

between and the appellant was on the correct side of the

road. It was about 9:45 p.m. The offending DTC bus bearing

No.DEP 9958 came from the opposite direction and there

was a head-on collision between the appellant's car and the

offending bus. The appellant suffered fractures of three ribs

of right side, factures of two ribs on left side, fracture of left

ulna bone, fracture of left hip, fracture of left hand,

dislocation of right hip, serious injuries on lungs besides

serious head injuries in the accident in question.

3. The learned Tribunal has awarded Rs.1,50,000/-

towards the expenses on medicines, Rs.55,000/- towards

future expenses, Rs.65,000/- towards loss on account of

disability, Rs.20,000/- towards stockings, Rs.30,000/- towards

conveyance, Rs.30,000/- towards special diet and Rs.50,000/-

towards pain and suffering. The total compensation

computed is Rs.4,00,000/- . However, the said amount was

reduced by 50% as the learned Tribunal held the appellant to

be contributory negligent. The learned Tribunal has awarded

a sum of Rs.2,00,000/- to the appellant.

4. Following grounds have been urged by learned counsel

for the appellant at the time of hearing of this appeal:-

(i) The finding of 50% contributory negligence of the

appellant be set aside.

(ii) The compensation for future medical expenses be

enhanced from Rs.55,000/- to Rs.10,00,000/-

(iii) The compensation on account of loss of income

due to permanent disability be enhanced.

(iv) The compensation for pain and suffering be

enhanced.

(v) The compensation be awarded for loss of

amenities of life.

(vi) The compensation for conveyance and special

diet be enhanced.

(vii) The compensation be awarded for engaging the

attendant.

(viii) The compensation be awarded for purchase of

stockings.

5. With respect to the finding of contributory negligence of

the appellant to the extent of 50%, the learned counsel

refers to and relies upon the statement of the appellant who

appeared in the witness box as PW-10 and deposed that the

accident occurred on Captain Gaur Marg opposite Okhla Bus

Depot and the appellant was on correct side of the road

whereas the DTC bus had come on the wrong side. The

learned counsel submits that the accident occurred at about

9:10pm and it was a foggy night. The road in question is a

double road with three lanes on either side with a divider in

between. The learned counsel further submits that the

appellant had crossed the same road on the other side about

half an hour before the accident and the other side of the

road was very much operational at that time. The learned

counsel submits that PW-10 was not cross-examined by the

respondents despite opportunity given. The learned counsel

further submits that the driver of the DTC bus appeared in

the witness box as R2W1 and deposed that the passengers in

the bus made a note about the manner in which the accident

occurred but the said notebook was not produced before the

learned Tribunal. R2W1 has deposed that the bus was

stationary at the bus stop at the time of the accident and the

passengers were getting down and another DTC bus

No.GL429 was coming from the opposite direction followed

by the appellant's car and that DTC bus stopped and the

appellant's car hit the offending bus in its attempt to

overtake that stationary DTC bus. The learned counsel

submits that the driver and the conductor of the other DTC

bus were not examined by DTC to prove the contention

raised by R2W1 and, therefore, the said contention has not

been proved by R2W1.

6. R2W1 has admitted that the bus had come on the

wrong side of the road where the accident occurred.

However, the explanation given was that the traffic on the

correct side of the road was diverted due to some road

accident and the bus was stationary at the time of the

accident.

7. The learned Tribunal held the appellant to be

contributory negligent for the accident to the extent of 50%

on the ground that the traffic on the one half of the road was

closed and traffic of both the sides was moving on the other

half of the road and the appellant ought to have been careful

when the traffic was moving on one side. The learned

Tribunal referred to and relied upon the site plan prepared by

the police. The learned Tribunal overlooked the fact that the

appellant was on correct side of the road whereas the DTC

bus came from the wrong side of the road. Though the

opposite side of the road was closed but there was no

indication on the road and the appellant was not aware about

the closure of the road. The appellant had crossed opposite

side of the road about half an hour before the accident when

the other side of the road was very much operational at that

time. In these facts and circumstances, 50% of the

contributory negligence cannot be attributed to the

appellant. However, the appellant was negligent to a certain

extent and the negligence of the appellant is taken to be

20% and the driver of the DTC bus is held to be contributory

negligent to the extent of 80%. The findings of the learned

Tribunal in this regard are modified to the above extent.

8. The appellant suffered displacement of hip joint. The

appellant became unconscious at the time of the accident

and he was removed by the PCR Van to AIIMS where he

remained for a day and thereafter he was shifted to

Safdarjung Hospital. The appellant remained in ICU on

ventilator in Safdarjung Hospital for three weeks and for

about one month in the ward. The appellant remained in

Safdarjung Hospital from 20th January, 1992 to 4th April,

1992. The appellant thereafter took discharge from

Safdarjung Hospital and continued the treatment from Dr.

Mandal of Sir Ganga Ram Hospital. After two years of the

said treatment, the appellant was admitted in Sir Ganga Ram

Hospital from 19th May, 1995 to 29th May, 1995 where he

underwent hip replacement surgery of left hip and was

discharged thereafter. In 2001, the appellant developed

varicose veins (swelling of veins) and he was admitted in

AIIMS for four days from 17th August, 2001 to 20th August,

2001 and surgery was conducted for removal of varicose

veins. In March, 2008, the appellant again underwent hip

replacement surgery as he was advised that the life of hip

replacement is 10 to 15 years.

9. The learned Tribunal has awarded a sum of

Rs.1,50,000/- towards medical expenditure and Rs.55,000/-

towards future expenditure. The medical expenditure of

Rs.1,50,000/- awarded by the learned Tribunal does not call

for any interference as the appellant has not furnished any

proof of expenditure beyond Rs.1,50,000/-. However, with

respect to the future expenditure of Rs.55,000/- awarded by

the learned Tribunal, the learned counsel refers to and relies

upon the statement of Dr. S.P. Mandal who appeared before

the learned Tribunal as PW-9 and deposed that the life of the

left artificial hip is 10 to 15 years and the appellant may

require the replacement thereafter. PW-9 has further

deposed that another replacement surgery may cost

Rs.5,00,000/- and the appellant will have to continue to take

medicines and treatment for his whole life. There is no

cross-examination of PW-9 relating to his statement with

respect to the requirement of future treatment and medical

expenditure. As per the certificate of Dr. S.P. Mandal, the

appellant has spent approximately Rs.3,50,000/- on hip

replacement in March, 2008. The life of artificial limb

replaced in March, 2008 is 10 to 15 years and, therefore, the

appellant shall require about two more hip replacements

during his lifetime. The appellant is, therefore, entitled to

cost of three hip replacements including the one undergone

in March, 2008. The appellant has already spent

Rs.3,50,000/- in hip replacement in March, 2008 and more

amount shall be incurred in the future hip replacements.

Rs.3,50,000/- is awarded to the appellant towards the hip

replacement carried out in March, 2008 and Rs.3,50,000/- is

awarded towards two hip replacements that will be carried

out in future. Since the said amount would be incurred at a

future date after approximately five years or more and this

amount shall remain invested in the bank till then, the

amount along with interest at that time would be sufficient to

meet the cost of two hip replacements in future.

10. The learned Tribunal has awarded Rs.65,000/- to the

appellant towards the loss of income due to permanent

disability. The appellant was the editor, publisher and owner

of the Urdu Weekly "Hamara Kadam" which was duly

registered with the Registrar of Newspapers. The appellant

appeared in the witness box as PW-1 and claimed his

average income to be Rs.25,000/- to Rs.50,000/- weekly.

However, no proof of income was submitted by the appellant

to prove the income. The appellant has placed some

evidence on record to prove that he was the editor, publisher

and owner of the Urdu Weekly "Hamara Kadam" which was

stopped after the accident as the appellant was not in a

position to run the same.

11. In the facts and circumstances of this case, the income

of the appellant is taken to be Rs.5,000/- per month instead

of Rs.3,000/- taken by the learned Tribunal. The learned

Tribunal has taken the loss of earning capacity of the

appellant to be 10%. The appellant has suffered 20%

disability as per the disability certificate - Ex.PW10/2 in

respect of left lower limb. As per the disability certificate -

Ex.PW9/21 issued by Dr. S.C. Mandal, it was opined that the

permanent disability of the appellant in respect of the left

lower limb is about 70%.

12. The appellant is a journalist and considering the nature

of his occupation and the left lower limb having been

crippled, the loss of earning capacity is taken to be 30%

instead of 10% as assessed by the learned Tribunal. The

appellant was aged 28 years at the time of the accident and,

therefore, the appropriate multiplier at the age of 28 years

is 17. Taking the income of the appellant to be Rs.5,000/-

per month, applying the multiplier of 17 and taking the loss

of earning capacity to be 30%, the loss of income is assessed

to be Rs.3,06,000/- (Rs.5,000 x 12 x 17 x 30%).

13. The learned Tribunal has not awarded any

compensation to the appellant for employing an attendant

for a period of two years. The appellant produced the

attendant in the witness box as PW-12 who deposed that he

worked with the appellant for two years at a salary of

Rs.2,000/- per month besides boarding and lodging.

Rs.48,000/- (Rs.2,000 x 12 x 2) is awarded to the appellant

towards the cost of employing the attendant.

14. The learned Tribunal has awarded a sum of Rs.20,000/-

towards cost of stockings. The learned counsel for the

appellant submits that Dr. Anurag Srivastava appeared as

PW-11 and deposed that the appellant has suffered varicose

veins due to which he was advised to wear elastic stockings

in both the legs for rest of his life to prevent further damage.

PW-11 deposed that, each stockings cost Rs.2,000/- to

Rs.2,400/- and lasts for four to six months. The learned

counsel for the appellant submits that the appellant is

spending Rs.6,000/- per annum towards cost of stockings

which has been proved by Ex.PW6/1 and Ex.PW6/2 according

to which the cost of stockings was Rs.4,120/-. Considering

the cost of stockings, the amount awarded by the learned

Tribunal is inadequate and warrants enhancement. The cost

of the stockings is enhanced from Rs.20,000/- to Rs.60,000/-

considering that if the said amount is kept in fixed deposit, it

would be sufficient to meet the recurring cost of stockings.

15. The learned Tribunal has awarded Rs.30,000/- towards

conveyance to the appellant. The learned counsel for the

appellant submits that the appellant remained under

treatment for two years and confined to bed. The

conveyance during the said period was proved by the

statement of taxi owner, PW-3 who deposed that he charged

Rs.75,000/- from the appellant towards conveyance from

1992 to 1995 and thereafter he was charging Rs.2,000/- per

month. The amount deposed by PW-3 appears to be

exaggerated. However, the amount awarded by the learned

Tribunal is on a lower side and warrants enhancement. The

compensation towards conveyance is assessed to be

Rs.1,000/- per month. Applying the multiplier of 17, the

compensation towards conveyance is assessed to be

Rs.2,04,000/- (Rs.1,000 x 12 x 17).

16. The learned Tribunal has awarded a sum of Rs.30,000/-

towards special diet to the appellant which does not warrant

any interference.

17. The learned Tribunal has awarded a sum of Rs.50,000/-

to the appellant towards pain and suffering. However, no

compensation has been awarded to the appellant towards

loss of amenities of life, disfiguration and loss of matrimonial

prospects. Considering the nature of injuries suffered by the

appellant and the permanent disfigurement, Rs.50,000/- is

awarded for loss of amenities of life, Rs.50,000/- is awarded

for disfiguration and Rs.50,000/- is awarded for loss of

reduction of matrimonial prospects. The total compensation

is computed to be Rs.16,98,000/- (Rs.3,50,000 + Rs.3,50,000

+ Rs.3,06,000 + Rs.60,000 + Rs.48,000 + Rs.2,04,000 +

Rs.50,000 + Rs.50,000 + Rs.50,000 + Rs.50,000 +

Rs.1,50,000 + Rs.30,000). 20% is deducted from the said

amount towards contributory negligence of the claimant and

the claimant is entitled to net compensation of

Rs.13,58,400/- (Rs.16,98,000 - 20%).

18. The appeal is allowed and the award amount is

enhanced from Rs.2,00,000/- to Rs.13,58,400/- along with

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

petition till realization. However, there shall be no interest on

a sum of Rs.3,50,000/- (Rs.3,50,000/- awarded for future

treatment in para 9).

19. The enhanced award amount along with interest be

deposited by respondent No.1 with State Bank of India, Tis

Hazari Branch A/c Ahmed Sohail Siddiqui by means of a

cheuqe through Mr. H.S. Rawat, Relationship Manager, Tis

Hazari Branch, Tis Hazari (Mb: 09717044322) within 60

days.

20. Upon the enhanced award amount being deposited, the

State Bank of India is directed to release 10% of the same to

the appellant by transferring the said amount to his Saving

Bank Account.

21. 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 award

amount for a period of six months.

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

amount for a period of one year.

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

amount for a period of one and a half years.

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

amount for a period of two years.

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

amount for a period of two and a half years.

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

amount for a period of three years.

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

amount for a period of three and a half years.

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

amount for a period of four years.

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

amount for a period of four and a half years.

22. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of the appellant.

23. Withdrawal from the aforesaid accounts shall be

permitted to the appellant after due verification and the

Bank shall issue photo Identity Card to the appellant to

facilitate identity.

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

permission of this Court.

25. The original fixed deposit receipts 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 FDRs.

26. The original fixed deposit receipts shall be handed over

to the appellants on the expiry of the period of the FDRs.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

29. 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.

30. 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.

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

parties.

32. 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 20, 2010 aj