Ram Kishan vs Joginder Singh & Ors
2010 Latest Caselaw 2811 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   MAC.APP.No.236/2008

                                  Date of Decision : 28th May, 2010
%

      RAM KISHAN                      ..... Appellant
                           Through : Mr. Ashok Popli,
                                     Mr. Navneet Goyal,
                                     Mr. Varun Kumar, Advs.

                      versus

      JOGINDER SINGH & ORS         ..... Respondents
                    Through : Mr. S.L. Gupta and
                              Mr. Ram Ashray, Advs.
                              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.4,50,000/- has been

awarded to him. The appellant seeks enhancement of the

award amount.

2. The accident dated 17th May, 2006 resulted in

amputation of both legs below knee of the appellant. The

appellant was driving Tata Tempo bearing No.DL-1L-B-5350

while going from Delhi to Khurja. When the appellant

reached near Shanti Van crossing on Ring Road at about

11:30pm, a truck bearing No.HR-38-A-5895 going ahead of

the appellant‟s tempo applied sudden brakes in the middle of

the road without giving any signal due to which the tempo

rammed into the truck resulting in grievous injuries and

amputation of both legs of the appellant.

3. The appellant was aged 27 years at the time of the

accident and was working as a driver earning Rs.3,500/- per

month besides Rs.50/- for daily expenses. The Claims

Tribunal awarded Rs.25,000/- towards medical treatment,

Rs.12,500/- towards conveyance charges, Rs.7,500/- towards

special diet, Rs.7,55,000/- towards loss of income,

Rs.75,000/- towards pain and agony and Rs.25,000/- towards

loss of amenities. The total compensation assessed was

Rs.9,00,000/- out of which 50% was deducted towards the

contributory negligence of the appellant and the net

compensation awarded to the appellant is Rs.4,50,000/-.

4. The learned counsel for the appellant has urged the

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

(i) The finding of the contributory negligence of the

deceased be set aside.

(ii) The compensation of Rs.75,000/- towards pain

and agony be enhanced.

(iii) The compensation of Rs.25,000/- towards loss of

amenities of life be enhanced.

(iv) The compensation be awarded for disfiguration.

5. Mr. S.L. Gupta, learned counsel for respondent No.3 has

vehemently opposed the grounds of the appellant and he

submits that the fair compensation has been awarded to the

appellant.

6. With respect to the contributory negligence of the

appellant, the Claims Tribunal held the driver of the truck to

be negligent. However, the Claims Tribunal held the

appellant to be contributory negligent to the extent of 50%

on the ground that the appellant admitted driving at the

speed of 80 kms/hr. The learned counsel for the appellant

submits that the suggestion was given to the appellant that

he was driving at a speed of 80 kms/hr to which he denied

but the same was not recorded properly and the Claims

Tribunal observed that the appellant has admitted driving at

a speed of 80 kms/hr. The Claims Tribunal further observed

that the appellant should have maintained sufficient distance

between the two vehicles. The driver of the truck having

been held to be negligent and responsible for the accident,

this Court is of the view that in the facts and circumstances

of this case, the negligence of the appellant was 25% instead

of 50% taken by the Claims Tribunal. The finding of the

Claims Tribunal in this regard is, therefore, modified and the

appellant is held to be contributory negligent to the extent of

25% and the negligence of the driver of the truck is held to

be 75%.

7. With respect to the compensation for pain and agony

and loss of amenities of life, the Claims Tribunal has awarded

Rs.75,000/- and Rs.25,000/- respectively. The learned

counsel for the appellant refers to and relies upon the

judgment in the case of Oriental Insurance Co. Ltd. vs.

Vijay Kumar Mittal (2008) ACJ 1300 in which 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."

8. The judgment of this Court in Vijay Kumar Mittal

(supra) relates to 50% disability whereas in the present case,

the appellant has suffered 100% disability and, therefore,

this case warrants enhancement of compensation.

9. In the facts and circumstances of this case, the

compensation for pain and agony and loss of amenities of life

is enhanced and Rs.2,00,000/- is awarded to the appellant

towards pain and suffering, Rs.1,00,000/- towards loss of

amenities of life and Rs.50,000/- is awarded towards

disfiguration. The appellant is entitled to total compensation

of Rs.11,50,000/- as per break-up given hereunder:-

      (i)     Medical treatment                 :   Rs.25,000/-
      (ii)    Conveyance charges                :   Rs.12,500/-
      (iii)   Special diet                      :   Rs.7,500/-
      (iv)    Loss of income                    :   Rs.7,55,000/-
      (v)     Pain and suffering                :   Rs.2,00,000/-
      (vi)    Loss of amenities of life         :   Rs.1,00,000/-
      (vii)   Compensation for disfiguration    :   Rs.50,000/-
                                        Total   :   Rs.11,50,000/-

10. Since the appellant has been held to be contributory

negligent to the extent of 25%, the aforesaid amount of

Rs.11,50,000/- is reduced by 25% and the appellant is held

to be entitled to Rs.8,62,500/- [Rs.11,50,000 - (Rs.11,50,000

x 25%)].

11. The appeal is allowed and the award amount is

enhanced from Rs.4,50,000/- to Rs.8,62,500/- along with

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

the claim petition till the date of notice of deposit under

Order 21 Rule 1 of the Code of Civil Procedure.

12. The enhanced award amount along with up to date

interest be deposited by respondent No.3 with UCO Bank A/c

Ram Kishan through Mr. M.M. Tandon, Member-Retail Team,

UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.

09310356400) within 30 days.

13. Upon the aforesaid deposit being made, UCO Bank is

directed to release 10% of the said amount to the appellant

by transferring the same to his Saving Bank Account. 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 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.

14. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of the appellant.

15. Withdrawal from the aforesaid account shall be

permitted to the appellant after due verification and the

Bank shall issue photo Identity Card to the appellant to

facilitate identity.

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

permission of this Court.

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

the FDRs to the appellant 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 the appellant, the Bank shall transfer

the Savings Account to any other branch of UCO Bank

according to the convenience of the 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 (Mobile No.

09310356400).

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

parties under 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.

J.R. MIDHA, J MAY 28, 2010 aj