Delhi High Court

Pankaj Jain vs Lal Bir & Ors. on 11 January, 2010

Author: J.R. Midha

28
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +     MAC.APP.No.225/2004

                                 Date of Decision: 11th January, 2010
%

      PANKAJ JAIN                                  ..... Appellant
                            Through : Ms. Sangeeta Jain, Adv.

                      versus

      LAL BIR & ORS.                             ..... Respondents
                            Through : Ms. Pankaj Bala Verma, 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.1,94,750/- has been

awarded to him. The appellant seeks enhancement of the

award amount.

2. The accident dated 8th September, 1989 resulted in

grievous injuries to the appellant. The appellant was going

on his two-wheeler scooter bearing No.DDP-2290 and was hit

by bus bearing No.DEP-2619 from behind. The appellant fell

down and was dragged by the bus for about 30-40 yards.

The appellant suffered following injuries due to the accident:-

       (i)     Paralysis of eye muscle.

      (ii)    Crush injuries on right hand.

      (iii)   Injuries on the right ear.

      (iv)    Fracture of mandible (jaw bone).

3. The appellant was taken to All India Institute of Medical

Sciences (AIIMS) where his right hand was operated upon

and his index, middle and ring finger of the right hand were

amputated and skin grafting was carried out. The appellant

underwent two surgeries at AIIMS and two surgeries at

Safdarjung Hospital.

4. The appellant suffered 45% permanent disability in

relation to the right lower limb due to the traumatic

amputation of index, middle and ring finger through the

middle phalanx. The appellant also suffered permanent

impairment of hearing in right ear.

5. The appellant remained under treatment for about one

and a half years. The documents including prescription slip,

treatment record and expenditure on treatment were proved

as Ex.P-2 to Ex.P-99.

6. The appellant was 24 years old at the time of the

accident and had started the business of garment fabrication

as proprietorship concern in the name of M/s Paras

Enterprises. The provisional registration certificate of the

firm of the appellant was proved as Ex.P-100. The appellant

was allotted importer code number which was proved as

Ex.P-101. The appellant took a loan of Rs.95,000/- from New

Bank of India to purchase the machinery. The documents

relating to the loan taken by the appellant were proved as

Ex.P-104 to Ex.P-127. The invoice of the machinery

purchased by the appellant was proved as Ex.P-96.

7. The learned Tribunal held that the appellant failed to

prove the income and, therefore, the notional income of

Rs.15,000/- per annum was taken to compute the loss of

income at Rs.1,14,750/-. The learned Tribunal has awarded

Rs.40,000/- towards pain and suffering, Rs.20,000/- towards

conveyance, medicine and special diet and Rs.20,000/-

towards loss of earning due to injuries. The total

compensation awarded is Rs.1,94,750/-.

8. The learned counsel for the appellant has urged the

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

(i) The compensation for loss of income due to

permanent disability be enhanced.

(ii) The compensation for pain and suffering be

enhanced.

(iii) The compensation for conveyance, medicine and

special diet be enhanced.

(iv) The compensation be awarded for loss of

amenities of life.

(v) The compensation be awarded for disfiguration.

(vi) The compensation be awarded for reduction of

matrimonial prospects.

9. During the pendency of this appeal, the appellant filed

an application for permission to lead additional evidence

which was allowed and the learned Tribunal was directed to

record the additional evidence vide order dated 16 th

November, 2006 in pursuance to which the appellant led

additional evidence and proved that the appellant was

running a garment factory at the time of the accident and

was getting regular orders from M/s Addi Industries Ltd. The

appellant used to purchase accessories from the market and

the customers used to provide raw material for

manufacturing, fabrication and finishing of the readymade

garments by issuing challan to the appellant. 14 challans

during the period from 10th April, 1989 to 18th July, 1989 were

proved as Ex.PW1/130 to Ex.PW1/143. The challan dated

22nd July, 1989 and bill dated 1st May, 1989 raised by the

appellant for fabrication, finishing and manufacturing of

readymade garments to M/s Addi Industries Ltd. were proved

as Ex.PW1/144 to Ex.PW1/145. The appellant purchased

threads from the market for fabrication and finishing of the

garments from the various suppliers in respect of which the

bills were proved as Ex.PW1/146 to Ex.PW1/148. Respondent

No.3 summoned the witness from M/s Addi Industries Ltd. as

DW-1 who admitted the documents proved by the appellant.

The appellant had to close down the factory as he was not in

a position to run the same after the accident.

10. The learned counsel for the appellant submits that the

appellant had set up a garment fabrication factory. The

projected profit and loss account of the appellant for the first

five years has been proved as Ex.P-53 according to which the

appellant projected to earn an income of Rs.1,36,000/- in the

first year, Rs.1,54,000/- in the second year, Rs.1,80,000/- in

the third year, Rs.2,06,000/- in the fourth year and

Rs.2,35,000/- in the fifth year. The projected profit and loss

account was examined by the bank and the loan was

sanctioned by the bank for purchase of the machinery after

appreciation of the project report. The learned counsel

submits that the earning capacity should be determined by

taking the aforesaid facts into consideration. The learned

counsel refers to and relies upon the judgment of the Hon‟ble

Supreme Court in the case of M.G. DIR, Bangalore

Metropolitan TPT Corporation vs. Sarojamma, AIR

2008 SC 3244 whereby the Hon‟ble Supreme Court

considered the earning capacity of the deceased to award

the compensation. The earning capacity of the deceased can

be determined by taking into consideration various facts and

circumstances. The guidance for drawing such presumption

can be taken from Section 114 of the Indian Evidence Act

which is reproduced hereunder:-

"Section 114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case"

11. Considering all the aforesaid relevant facts and

circumstances, the earning capacity of the appellant is taken

to be Rs.5,000/- per month. The learned Tribunal was clearly

in error in taking the notional income of the appellant to be

Rs.15,000/- per annum. The concept of notional income has

been wrongly invoked by the learned Tribunal in this case.

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

1/3rd of the income of the appellant be deducted towards his

personal expenses. The argument of learned counsel for

respondent No.3 is rejected as the deduction towards the

personal expenses is permissible only in death cases and not

in injury cases.

13. The learned counsel for the appellant submits that the

future prospects be taken into consideration for computation

of compensation. In the judgment of Sarla Verma Vs.

Delhi Transport Corporation, 2009 (6) Scale 129, the

Hon‟ble Supreme Court has not permitted the future

prospects to be taken into consideration while computing the

compensation in respect of self-employed persons and,

therefore, no future prospects are warranted in this case.

14. The learned Tribunal has applied the multiplier of 17 to

compute the loss of income. However, the appropriate

multiplier at the age of 24 has been held by the Hon‟ble

Supreme Court to be 18 in the case of Sarla Verma (supra).

The appellant is unable to do anything with the right hand.

The loss of earning capacity of the appellant is taken to be

50%.

15. Taking the income of the appellant to be Rs.5,000/- per

month, applying the multiplier of 18 and taking the loss of

earning capacity to be 50%, the loss of income is computed

to be Rs.5,40,000/- (Rs.5,000 x 12 x 18 x 50%). The learned

Tribunal has awarded loss of income under two heads

namely Rs.1,14,750/- towards permanent disability and

Rs.20,000/- towards loss of earning capacity. The total

compensation awarded under the two heads is Rs.1,34,750/-

which is enhanced to Rs.5,40,000/-.

16. The learned Tribunal has awarded Rs.20,000/- to the

appellant towards conveyance, medicines and special diet.

The amount awarded by the learned Tribunal under these

heads appears to be on a lower side. However, since there

was no documentary evidence of medical expenditure over

and above the amount awarded, no interference is called for.

17. The learned Tribunal has awarded a sum of Rs.40,000/-

towards pain and suffering. However, no compensation has

been awarded for loss of amenities of life, disfiguration as

well as loss of matrimonial prospects.

18. 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 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."

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

no compensation should be awarded for loss of matrimonial

prospects to the appellant as the appellant was in fact

married after the accident. It may be noted that the

compensation is being awarded for reduction of matrimonial

prospects due to disfiguration and the injuries suffered by

the appellant. It cannot be said that after permanent

disfiguration and permanent disability of more than 45%, the

matrimonial prospects were not reduced in any manner. This

argument would have been available to learned counsel for

respondent No.3 if the appellant would have been married

prior to the accident.

20. Considering the 45% permanent disability relating to

right lower limb and by adding the permanent disability of

impairment of hearing in right ear due to the accident, the

permanent disability in respect of whole body is taken to be

50% and following the aforesaid judgment, the non-

pecuniary compensation of Rs.3,00,000/- is awarded to the

appellant under the following heads:-

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

and suffering

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

of amenities of life

(iii) Compensation for - Rs.50,000/-

Disfiguration

(iv) Compensation for - Rs.50,000/-

loss of matrimonial prospects

21. The appellant is entitled to total compensation of

Rs.8,60,000/- (Rs.5,40,000/- for loss of earning capacity due

to permanent disability, Rs.20,000/- for conveyance,

medicines and special diet, Rs.1,00,000/- for pain and

suffering, Rs.1,00,000/- for loss of amenities of life,

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

matrimonial prospects).

22. The appeal is allowed and the award amount is

enhanced from Rs.1,94,750/- to Rs.8,60,000/-. The learned

Tribunal has awarded interest @ 9% per annum which is not

disturbed on the original award amount of Rs.1,94,750/-.

However, on the enhanced award amount, the rate of

interest shall be @7.5% per annum. The learned Tribunal

has awarded interest from the date of interim award. The

appellant is entitled to interest from the date of filing of the

petition till realization.

23. The enhanced award amount along with interest be

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

Court Branch A/c Pankaj Jain within 30 days.

24. Upon the enhanced award amount being deposited, the

UCO Bank is directed to release a sum of Rs.1,00,000/- 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 as per the details given

hereunder:-

(i) Fixed deposit of 5% of the balance amount for a

period of six months.

(ii) Fixed deposit of 5% of the balance amount for a

period of one year.

(iii) Fixed deposit of 5% of the balance amount for a

period of one and a half years.

(iv) Fixed deposit of 5% of the balance amount for a

period of two years.

(v) Fixed deposit of 5% of the balance amount for a

period of two and a half years.

(vi) Fixed deposit of 5% of the balance amount for a

period of three years.

(vii) Fixed deposit of 5% of the balance amount for a

period of three and a half years.

(viii) Fixed deposit of 5% of the balance amount for a

period of four years.

(ix) Fixed deposit of 5% of the balance amount for a

period of four and a half years.

(x) Fixed deposit of 5% of the balance amount for a

period of five years.

(xi) Fixed deposit of 5% of the balance amount for a

period of five and a half years.

(xii) Fixed deposit of 5% of the balance amount for a

period of six years.

(xiii) Fixed deposit of 5% of the balance amount for a

period of six and a half years.

(xiv) Fixed deposit of 5% of the balance amount for a

period of seven years.

(xv) Fixed deposit of 5% of the balance amount for a

period of seven and a half years.

(xvi) Fixed deposit of 5% of the balance amount for a

period of eight years.

(xvii) Fixed deposit of 5% of the balance amount for a

period of eight and a half years.

(xviii) Fixed deposit of 5% of the balance amount for a

period of nine years.

(xix) Fixed deposit of 5% of the balance amount for a

period of nine and a half years.

(xx) Fixed deposit of 5% of the balance amount for a

period of ten years.

25. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of the appellant.

26. 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.

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

permission of this Court.

28. 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