Mohd. Zahid vs Ajit Kumar & Ors.
2010 Latest Caselaw 2940 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of Reserve: May 18, 2010
                                              Date of Order: 3rd June, 2010

MAC APP. 325/2010 & CM Appl.9277/2010
%                                                     03.06.2010

MOHD ZAHID                                                  . ... Petitioner
                             Through: Mr. N.K. Jha, Advocate
                    Versus

AJIT KUMAR & ORS.                                           ... Respondents
                             Through:


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. This appeal has been preferred by the claimant/injured assailing the

award dated 29th January, 2010 on the ground that the compensation

awarded to the claimant was insufficient.

2. The claimant met with an accident on 29th August, 2007 with Bus

No. DL-1P-A-7308 and received compound fracture grade III of femur

and degloving injury. He remained admitted in LNJP Hospital from 29 th

August, 2007 to 26th November, 2007. Thereafter he remained an OPD

patient of LNJP Hospital from 9th January, 2008 to 30th August, 2008 for

repair of POP Cast. It is not disputed that he received entire treatment at

LNJP Hospital free of cost. He, however, had to purchase some

medicines from the market and he placed on record total bills of Rs.

6,433/-. The Tribunal awarded him a sum of Rs. 7,000/- towards cost of

medicines and treatment.

3. The injured claimed that he was a self employed person and used

to make silver goods and earn around Rs. 6,000/- per month. However,

he did not place on record any document in support of his claim nor did

he examine any witness in support of this claim. He did not place on

record any certificate showing his educational qualification. His wages

were, therefore, considered to be that of an unskilled labour as on the date

of accident i.e. around Rs. 3600/- per month.

4. The Doctor had given him disability certificate showing that he had

suffered 58% disability in relation to his right lower limb (right leg) of

permanent nature and non-progressive. The Tribunal assessed his

permanent disability in respect of entire body to be 35% and relied on his

testimony that his age was 39 years as on the date of accident. The

Tribunal applied a multiplier of 15 and calculated loss of income as Rs.

2,26,800/-. He was awarded a sum of Rs. 10,000/- for loss of amenities

of life, Rs. 30,000/- for pain and suffering, Rs. 8,000/- for conveyance

and Rs. 8,000/- for special diet. Thus a sum of Rs. 2,89,800/- was

awarded to the claimant along with interest @ 7.5% per annum from the

date of filing of petition till the realization of the amount.

5. It is submitted by the counsel for the petitioner that the Tribunal

failed to take into consideration future rise in income and future prospects

and the compensation awarded by the Tribunal was, thus, on the lower

side. The interest awarded was also low. It should have been 9 per cent

instead of 7.5 per cent. He further submitted that the Tribunal awarded a

meager amount of Rs. 30,000/- only on account of pain and suffering. It

was also submitted that while calculating the loss of income the Tribunal

wrongly took 35% disability in respect of entire body of the petitioner

whereas the disability certificate was of 58% in relation to right lower

limb. He submitted that due to this disability the appellant would not be

able to work and therefore disability should have been taken as 100%. It

is also submitted that the income of the appellant should have been taken

as Rs. 6,000/- per month instead of Rs. 3600/- per month and the

compensation amount of Rs. 7,00,000/- should have been awarded.

6. It is settled law that the compensation should be just and fair

compensation to compensate the injured for loss of future income keeping

in view the injury suffered by the injured. The nature of vocation of the

injured, age of the injured and the adoptability of the injured to other

profession are the relevant factors. The compensation is not to be

awarded so as to become a windfall.

7. The injured in his claim petition has stated that he was a silver

goods maker. Silver goods & silver ornaments are made by hands while

sitting and they are not made by legs. Under these circumstances, no

fault can be found with the Tribunal's order considering the total

disability of the injured to the extent of 35% in view of the fact that

disability of the injured was 58% in respect of right leg alone.

8. It is settled law that where a person has no proof of income or

gives no evidence in respect of his income, the minimum wages is the

criteria to be applied and this is the criteria which has been applied by the

Tribunal. Thus, the award cannot be faulted on this ground. The award

of interest @ 7.5% awarded by the Tribunal is justified in view of the

Judgment of Hon'ble Supreme Court in Sarla Varma & Ors. vs. Delhi

Transport Corporation & Anr.; (2009) 6 SCC 121 case. There can be no

straight jacket formula for awarding compensation in respect of pain and

suffering. This has to be left to the discretion of the Tribunal, where the

case is tried. This discretion has to be exercised by the Tribunal,

judiciously considering all facts and circumstances. Every Judge has his

own notions of awarding compensation for pain and suffering and some

subjectivity is bound to be there. Merely because Judge at High Court

has different notions of pain and suffering than that of Tribunal, the

quantum for pain and suffering should not be altered. The discretion

exercised by the Tribunal cannot be substituted by the discretion of the

appellate court or the next court.

9. I find no reason to entertain this appeal. The appeal is hereby

dismissed.

June 03, 2010                        SHIV NARAYAN DHINGRA, J.
acm