Bimla vs Gopal & Ors
2010 Latest Caselaw 1587 Del

55
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                 +     MAC.APP.No. 1028/2006

                              Date of Decision: 22nd March, 2010
%

      BIMLA                              ..... Appellant
                        Through Mr. O.P. Mannie, Adv.

                   versus

      GOPAL & 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.8,21,606/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 18th October, 2003 resulted in

grievous injuries to the appellant. The appellant was sitting

on the pillion of motor cycle No.DL-4S-AG-5822 being driven

by her husband on Outer Ring Road near Jaipur Golden

Hospital red light when the motor cycle was hit by Tata

Tempo bearing No.DL-1L-E-2847, due to which the appellant

and her husband fell down on the road. The appellant

suffered following injuries:-

(a) Close fracture soft libia, middle 1/3rd (Left),

(b) Fracture L-1, with Neurological deficit,

(c) Sup. Abrassions back right side lumber region left

flank,

(d) Contusion Right thigh (S.T. injury),

(e) Interlocking nailing tibia left leg done,

(f) Profusely bleeding.

3. The permanent disability of the appellant has been

assessed as 79% by the Medical Board in respect of lower

limbs. The appellant has suffered spinal injury resulting into

less power in lower limb and non-control of the bladder

known as paraparesis with bladder involvement and there

are no chances for its improvement or cure.

4. The appellant was 33 years old at the time of the

accident and was working as a Nurse in a private hospital

and was earning Rs.4,000/- per month. The Claims Tribunal

deducted 1/3rd towards her personal expenses and applied

the multiplier of 17 to compute the compensation for loss of

earning capacity as Rs.5,44,000/-. The Claims Tribunal

awarded Rs.94,606/- towards medical expenditure,

Rs.50,000/- towards loss of amenities of life, Rs. 70,000/-

towards pain and suffering, Rs.12,000/- towards special diet,

Rs.15,000/- towards fractured left leg tibia, Rs.12,000/- for

attendant and Rs.24,000/- towards loss of income. The total

compensation awarded is Rs.8,21,606/-.

5. The learned counsel for the appellant has urged the

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

(i) The deduction towards personal expenses be set

aside.

(ii) The future prospects of the appellant be taken

into consideration.

(iii) The compensation for pain and suffering and loss

of amenities of life be enhanced.

(iv) The compensation for conveyance be enhanced.

(v) The rate of interest be enhanced from 6% to 7.5%

per annum

6. The Claims Tribunal has not taken the future prospects

of the appellant taken into consideration while computing the

loss of income. The Claims Tribunal has deducted 1/3rd

towards the personal expenses of the deceased. It is well

settled by Hon‟ble Supreme Court in the case of Sarla

Verma Vs. Delhi Transport Corporation, 2009 (6) Scale

129, that 50% of the salary is to be added towards future

prospects as the injured was below 40 years of age.

Following the judgment of Sarla Verma (supra), the

income of the deceased for computation of compensation is

taken to be Rs.6,000/- (Rs.4,000/- + 50%). The deduction of

1/3rd is not permissible in the injury cases and, therefore, the

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

deceased is set aside.

7. Taking the income of the deceased to be Rs.6,000/- per

month and applying the multiplier of 17, the loss of her

earning capacity due to permanent disability is enhanced

from Rs.5,44,000/- to Rs.12,24,000/- (Rs.6,000/- x 12 x 17).

The loss of income for six months is computed at Rs.36,000/-

(Rs.6,000 x 6)

8. The learned Tribunal has awarded Rs.70,000/- towards

pain and suffering and Rs.50,000/- towards loss of amenities

of life. The learned counsel for the appellant submits that the

non-pecuniary compensation awarded by the learned

Tribunal be enhanced. The learned counsel refers to and

relies upon 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 cases 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."

9. The appellant has suffered 79% permanent disability.

Following the principles laid down in the aforesaid judgment,

compensation for pain and suffering is enhanced from

70,000/- to Rs.1,00,000/-, the compensation for loss of

amenities of life is enhanced from Rs.50,000/- to

Rs.1,00,000/- and Rs.1,00,000/- is awarded for disfiguration.

10. The Claims Tribunal has awarded Rs.12,000/- towards

special diet and conveyance. The compensation awarded by

learned Tribunal is grossly insufficient considering that the

appellant cannot sit for long time and cannot travel by public

transport. The compensation of Rs.12,000/- is treated

towards special diet and compensation of Rs.30,000/- is

awarded towards loss on account of conveyance.

11. The appellant is entitled to total compensation of

Rs.17,23,606/- (Rs.12,24,000 + Rs.1,00,000 + Rs.1,00,000 +

Rs.1,00,000 + Rs.12,000 + Rs.30,000 + Rs.36,000 +

Rs.94,606 + Rs.15,000 + Rs.12,000).

12. The Claims Tribunal is awarded interest @ 6% per

annum. The rate of interest is enhanced from 6% to 7.5%.

13. The appeal is allowed the award amount is enhanced

from Rs.8,21,606/- to Rs.17,23,606/- along with interest @

7.5% per annum from the date of filing of the claim petition

till notice under Order 21 Rule 1 of the Code of Civil

Procedure. The enhanced award amount along with interest

be deposited by respondent No.3 with State Bank of India,

A/c Bimla, Tis Hazari Branch, through Mr. H.S. Rawat,

Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb:

09717044322) within 30 days.

14. Upon the enhanced award amount being deposited,

UCO Bank is directed to release 10% of the said amount by

transferring the same to the Savings Bank Account of

appellant. The remaining amount be kept in fixed deposits 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 one year.

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

amount for a period of two years.

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

amount for a period of three years.

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

amount for a period of four years.

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

amount for a period of five years.

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

amount for a period of six years.

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

amount for a period of seven years.

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

amount for a period of eight years.

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

amount for a period of nine years.

15. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of the appellant.

16. Withdrawal from the aforesaid account shall be

permitted to appellant after due verification and the Bank

shall issue photo Identity Card to the appellant to facilitate

identity.

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

permission of this Court.

18. 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.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

21. On the request of the appellant, the Bank shall transfer

the Savings Account to any other branch according to the

convenience of the appellant.

22. 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.

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

parties under the signatures of the Court Master.

24. 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.

J.R. MIDHA, J MARCH 22, 2010 HL