Delhi High Court
Yogender vs Surender Singh on 19 November, 2010
Author: J.R. Midha
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.NO.269/2004
Date of Decision : 19th November, 2010
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YOGENDER ..... Appellant
Through : Mr. Manish Sharma,
Ms. Malika Sharma and
Mr. Rachit Batra, Advs.
versus
SURENDER SINGH ..... Respondent
Through : Mr. Amit Kumar Pandey, Adv.
for R-3.
CORAM :-
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?
J.R. MIDHA, J. (Oral)
1. The appellant has challenged the award of the learned
Tribunal whereby compensation of `4,52,470/- has been
awarded to the appellant. The appellant seeks enhancement of
the award amount.
2. The accident dated 24th January, 2001 resulted in
grievous injuries to the appellant. The appellant was boarding
the bus bearing No.DL-IP-6475 at Durga Puri Chowk bus stand
when the driver moved and accelerated the bus due to which
the appellant lost his balance, fell down and was crushed under
the rear wheel of the bus.
3. Both the pelvic bones of the appellant were fractured due
to the accident for which he was initially admitted in the
hospital for 46 days from 24th January, 2001 to 12th March,
2001 where a rod was inserted in the left leg and both the legs
were put under plaster. The rod inserted in the appellant‟s left
leg later broke down and, therefore, he was again admitted in
the hospital from 11th April, 2002 to 24th April, 2002 for
insertion of a new rod. The new rod also got infected causing
pus formation and, therefore, the appellant was again admitted
in the hospital from 9th October, 2002 to 14th October, 2002.
4. The appellant appeared before the Claims Tribunal as
PW-3 and proved the discharge summaries as Ex.PW3/A,
Ex.PW3/B and Ex.PW3/E. The certificate from the neurology
department of AIIMS Hospital was proved as Ex.PW3/C. The
discharge certificate issued by GTB Hospital was proved as
Ex.PW3/D. The OPD slips for endodilation were proved as
Ex.PW3/F, Ex.PW3/G, Ex.PW3/H and Ex.PW3/J. The medical bills
were proved as Ex.PW3/1 to Ex.PW3/13. The appellant had to
undergo endodilation for cleaning the blockage of the urethral
passage every 15 days.
5. The permanent disability of the appellant as per the
disability certificate Ex.PW3/D is 50%. The Claims Tribunal has
awarded `3,66,795/- towards loss of earning capacity due to
50% permanent disability, taking the minimum wages into
consideration and applying the multiplier of 15. `30,000/- has
been awarded for loss of studies, `5,675/- towards medical
bills, `10,000/- towards iron rod, Rs.30,000/- towards pain and
suffering and `10,000/- towards conveyance, special diet and
attendant. The total compensation awarded is `4,52,470/-.
6. The learned counsel for the appellant has urged the
following grounds at the time of hearing of this appeal:-
(i) The loss of earning capacity be taken as 100% as
the appellant is not able to do any work.
(ii) The compensation for medical expenses be
enhanced.
(iii) The compensation for future treatment including the
replacement of the hip by awarded.
(iv) The compensation for pain and suffering and
conveyance be enhanced.
(v) The compensation be awarded for loss of amenities
of life, disfiguration and loss of matrimonial
prospects.
7. The present condition of the appellant is that he has to
undergo surgery for hip replacement. The appellant has also
suffered blockage in urinal passage for which he has to
undergo endodilatation every fortnightly for removal of the
blockage in the urinal passage. The appellant led additional
evidence before this Court to prove that he was studying in 8th
standard at the time of the accident and had a brilliant
educational record. The original progress report was proved as
Ex.PW3/A. The appellant is also claiming compensation of
`1,00,000/- for replacement of the hip which would cost
approximately `1,00,000/-. The recommendation of the doctor
is Ex.PW3/B and the estimated cost of the surgery is proved by
Ex.PW3/C. The prescription with respect to the periodical
surgery and endodilatation for removal of the urinal passage
has been proved by Ex.PW3/D.
8. With respect to the loss of earning capacity, the Claims
Tribunal has taken the loss of earning capacity as 50% on the
basis of the disability certificate-Ex.PW3/D. The learned
counsel for the appellant submits that the appellant is not in a
position to do any work and, therefore, the loss of earning
capacity should be taken as 100%. Since the appellant‟s main
problem relates to the blockage of the urinal passage for which
he has to undergo endodilation every fortnight,
the appellant can do some work and, therefore, the loss of
earning capacity assessed by the Claims Tribunal as 50% is
upheld.
9. The appellant is undergoing endodilation every fortnight
which has been sufficiently proved by medical record,
especially, Ex.PW3/D where AIIMS has certified that the
appellant is suffering from stricture of urethra and will require
self dilation of the stricture on regular basis lifelong. For
endodilation, the appellant has to incur `5,760/- per annum
towards cost of urethral catheter, `1,440/- per annum (`60 x 2
x 12) towards fee of the doctor for removal of the blockage and
`6,000/- per annum (`250 x 2 x 12) towards travelling
expenses to the doctor. The annual expenditure is to the tune
of `13,200/- (`1,440 + `6,000 + `5,760). `70,000/- is awarded
to the appellant towards future medical expenditure on the
basis that the said amount be kept in fixed deposit and the
interest thereon would be sufficient to meet the future medical
expenses of the appellant.
10. The appellant has to undergo surgery for replacement of
hip which is expected to cost `1,00,000/-. The original
prescription of the doctor in this regard is Ex.PW3/B and the
original estimate is Ex.PW3/C. As per Ex.PW3/C, the cost of the
accessories for hip replacement has been certified to be
`.75,000/-. According to the appellant, the medical
expenditure for hip replacement would be to the tune of
`30,000/-. The appellant is, therefore, entitled to total
expenditure of `1,00,000/- towards the hip replacement which
shall include the cost of the accessories of `70,000/- and the
medical expenditure of `30,000/-.
11. The Claims Tribunal has awarded a sum of `10,000/- to
the appellant towards conveyance, special diet and attendant.
Considering that the appellant is 50% disabled and is unable to
walk without the help of crutches, the compensation awarded
by the Claims Tribunal is on a lower side. The compensation of
`10,000/- awarded by the Claims Tribunal is treated towards
special diet and attendant. Considering that the appellant
cannot travel by public transport and has to travel by private
transport, compensation of `25,000/- is awarded towards
conveyance. The Claims Tribunal has awarded a sum of
`30,000/- towards pain and suffering. However, no
compensation has been awarded towards loss of amenities of
life, disfiguration and loss of matrimonial prospects. The
learned counsel for the appellant 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 the
principles relating to the award of compensation towards pain
and suffering, loss of amenities of life and disfiguration have
been laid down by this Court. In the aforesaid judgment, 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 `3,00,000/- under the head 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."
12. Following the aforesaid judgment, compensation of
`30,000/- towards pain and suffering is enhanced to `75,000/-.
Further amount of `75,000/- is awarded towards loss of
amenities of life, `75,000/- towards loss of matrimonial
prospects and `50,000/- towards disfiguration.
13. The appellant is entitled to total compensation of
`8,92,470/- (`3,66,795 + `30,000 + `5,675 + `.10,000 +
`10,000 + `70,000 + `1,00,000 + `25,000 + `75,000 +
`75,000 + `75,000 + `50,000).
14. The appeal is allowed and the award amount is enhanced
from `.4,52,470/- to `8,92,470/- along with interest @7.5% per
annum from the date of filing of the claim petition till notice of
deposit under Order XXI Rule 1 of the Code of Civil Procedure.
15. The enhanced award amount along with interest be
deposited by respondent No.3 with UCO Bank A/c Yogender,
Delhi High Court Branch through Mr. Mr. M.M. Tandon, Member-
Retail Team, UCO Bank Zonal, Parliament Street, New Delhi
(Mobile No. 09310356400).
16. Upon the aforesaid amount being deposited, the UCO
Bank is directed to release 10% of the same to the appellant by
transferring the same to the Saving Bank Account of the
appellant. The remaining amount be kept in fixed deposit in
the following manner:-
(i) Fixed deposit in respect of 10% of the amount for a
period of one year in the name of the appellant.
(ii) Fixed deposit in respect of 10% of the amount for a
period of two years in the name of the appellant.
(iii) Fixed deposit in respect of 10% of the amount for a
period of three years in the name of the appellant.
(iv) Fixed deposit in respect of 10% of the amount for a
period of four years in the name of the appellant.
(v) Fixed deposit in respect of 10% of the amount for a
period of five years in the name of the appellant.
(vi) Fixed deposit in respect of 10% of the amount for a
period of six years in the name of the appellant.
(vii) Fixed deposit in respect of 10% of the amount for a
period of seven years in the name of the appellant.
(viii) Fixed deposit in respect of 10% of the amount for a
period of eight years in the name of the appellant.
(ix) Fixed deposit in respect of 10% of the amount for a
period of nine years in the name of the appellant.
17. The interest on the aforesaid fixed deposits shall be paid
monthly by automatic credit of interest in the Savings Account
of the appellant.
18. 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.
19. No cheque book be issued to the appellant without the
permission of this Court.
20. 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 FDRs.
21. No loan, advance or withdrawal shall be allowed on the
said fixed deposit receipts without the permission of this Court.
22. Half yearly statement of account be filed by the Bank in
this Court.
23. On the request of the appellant, Bank shall transfer the
Savings Account to any other branch according to the
convenience of the appellant.
24. 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).
25. The learned counsel for the appellant submits that a sum
of `1,00,000/- be released immediately to enable the appellant
to undergo the replacement of hip. The appellant is given
liberty to approach this Court along with the relevant
documents whereupon the amount required for the
replacement of hip shall be released directly to the hospital.
26. Copy of the order be given dasti to counsel for both the
parties under the signatures of the Court Master.
27. 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) under the signature of Court
Master.
J.R. MIDHA, J
NOVEMBER 19, 2010
aj
