Luxmi vs Mohinder Prasad & Ors.
2010 Latest Caselaw 1280 Del

26
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.180/2009

                                   Date of Decision:8th March, 2010
%
      LUXMI                                     ..... Appellant
                           Through Mr. O.P. Mannie, Advocate.

                      versus


      MOHINDER PRASAD & ORS.           ..... Respondents
                   Through Ms. Ambika Ray, 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.3,56,427/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 25th May, 2007 resulted in grievous

injuries to the appellant. The appellant was alighting from

bus bearing No.DL-1P/B-4865 at the bus stop when the driver

moved the bus due to which the appellant fell down. The

appellant suffered amputation of all five fingers of left lower

limb, loss of heal pad, crush injury and degloving injury over

left foot, abrasions over right elbow and right knee, whole

skin of the foot below ankle joint (Dorsal + Plantar) degloved

and blunt injuries all over body. The disability of the

appellant has been assessed to be 70% as per disability

certificate - Ex.PW4/A.

3. The appellant was working as a cook drawing salary of

Rs.4,000/- per month. In the absence of sufficient proof of

income, the learned Tribunal took the minimum wages of

Rs.3760/-, added 50% towards the inflation and rise in price

index, deducted 1/3rd towards her personal expenses and

took the loss of earning capacity as 40% to compute the

compensation for loss of earning capacity as Rs.2,88,768/-.

Rs.7659/- has been awarded towards medical treatment,

Rs.10,000/- towards conveyance and special diet, Rs.50,000/-

towards pain and suffering and loss of amenities of life. Total

compensation awarded is Rs.3,56,427/-.

4. The learned counsel for the appellant has urged the

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

(i) The multiplier be enhanced from 16 to 18.

(ii) The deduction towards personal expenses be set

aside.

(iii) The compensation for pain and suffering and loss

of amenities of life be enhanced.

(iv) The compensation be awarded for disfiguration.

(v) The compensation for conveyance be enhanced.

5. The appellant was aged 19 years at the time of the

accident and the appropriate multiplier is 18 whereas the

learned Tribunal has applied the multiplier of 16. The

multiplier is enhanced from 16 to 18.

6. The learned Tribunal has deducted 1/3 rd towards

personal expenses of the appellant. It is well settled that

personal expenses are not deductable in the injury cases.

The deduction of 1/3rd towards the personal expenses of the

deceased is set aside. Applying the multiplier of 18, the loss

of earning capacity is computed to be Rs.4,87,296/- (Rs.5640

x 12 x 18 x 40%)

7. The learned Tribunal has awarded Rs.50,000/- towards

pain and sufferings and loss of amenities of life, which is

insufficient, considering 70% permanent disability suffered

by the appellant. The learned Tribunal has also not awarded

any compensation for disfigurement. The law with respect to

the non-pecuniary compensation is well settled by the

judgment of this Court in the case of Oriental Insurance

Co. Ltd. vs. Vijay Kumar Mittal (2008) ACJ 1300, where

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."

8. Following the aforesaid judgment, the compensation for

pain and suffering is enhanced from Rs.50,000/- to

Rs.1,00,000/-, Rs.50,000/- is awarded for loss of amenities of

life and Rs.50,000/- towards disfiguration.

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

conveyance and special diet. All the five fingers of the left

lower limb have been amputated and heel pad has been lost,

due to which the appellant is unable to walk without a

support and also unable to travel by public transport,

meaning thereby that the appellant has to incur regular

expenditure on conveyance. The learned Tribunal has not

taken this aspect into consideration and has not awarded any

compensation on this account. Since the appellant is a

working lady, even on a conservative estimate she would be

spending Rs.1,000/- per month on her conveyance.

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

conveyance considering that the amount awarded shall be

kept in fixed deposit and the interest thereon would be

sufficient for her to meet the expenditure on conveyance.

10. The appellant is entitled to total compensation of

Rs.7,79,955/- as per the break-up given hereunder:-

    (i)      Compensation          for   :   Rs.7,659/-
            medical treatment
   (ii)     Compensation towards        :   Rs.10,000/-
            special diet.
   (iii)    Compensation towards        :   Rs.75,000/-
            conveyance.
   (iv)     Compensation towards        :   Rs.4,87,296/-
            loss     of     earning
            capacity
   (v)      Compensation towards        :   Rs.1,00,000/-
            pain and suffering
   (vi)     Compensation towards        :   Rs.50,000/-
            loss of amenities of life
   (vii)    Compensation towards        :   Rs.50,000/-
            disfiguration
                              Total     :   Rs.7,79,955/-

11. The appeal is allowed and the award amount is

enhanced from Rs.3,56,427/- to Rs.7,79,955/- along with

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

petition till the notice of deposit under Order 21 Rule 1 of the

Code of Civil Procedure.

12. The enhanced award amount along with interest be

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

Court Branch A/c Luxmi by means of a cheque through

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

Parliament Street, New Delhi (Mobile No. 09310356400)

within 45 days.

13. Upon the enhanced award amount being deposited,

UCO Bank is directed to release 10% of the amount in the

name of appellant by transferring the same to her Savings

Bank Account. The remaining amount be kept in the fixed

deposits in the name of appellant in the following manner:

(i) Fixed deposit in respect of 10% for a period of one

year.

(ii) Fixed deposit in respect of 10% for a period of two

years.

(iii) Fixed deposit in respect of 10% for a period of

three years.

(iv) Fixed deposit in respect of 10% for a period of

four years.

(v) Fixed deposit in respect of 10% for a period of five

years.

(vi) Fixed deposit in respect of 10% for a period of six

years.

(vii) Fixed deposit in respect of 10% for a period of

seven years.

(viii) Fixed deposit in respect of 10% for a period of

eight years.

(ix) Fixed deposit in respect of 10% for a period of

nine years.

14. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of appellant.

15. Withdrawal from the aforesaid account shall be

permitted to appellant after due verification and the Bank

shall issue photo Identity Card to appellant to facilitate

identity.

16. No cheque book be issued to appellant without the

permission of this Court.

17. The Bank shall issue Fixed Deposit Pass Book instead of

the FDRs to the appellants and the maturity amount of the

FDRs be automatically credited to the Saving Bank Account

of the beneficiary at the end of the FDR.

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

said fixed deposit receipts 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 appellant, the Bank shall transfer the

Savings Account to any other branch according to the

convenience of appellant.

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 under the signatures of the Court Master.

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 under the signature of Court Master.

24. Copy of this order be given „Dasti‟ to learned counsel

for the parties under the signature of Court Master.

J.R. MIDHA, J MARCH 08, 2010/HL