Sunny Kumar vs Virender @ Mohan & Ors.
2010 Latest Caselaw 5279 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +    MAC.APP.No.330/2005

                               Reserved on      : 29th October, 2010
                               Date of Decision : 22nd November, 2010

%
      SUNNY KUMAR                              ..... Appellant
                           Through : Mr. Pramod Kharwar, Adv.

                      versus


      VIRENDER @ MOHAN & ORS.        ..... Respondents
                   Through : Mr. Ram Ashray, Adv.

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?

                               JUDGMENT

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of `53,650/- has been awarded

to him. The appellant seeks enhancement of the award

amount.

2. The accident dated 29th May, 1998 resulted in grievous

injuries to the appellant. The appellant was driving two-

wheeler scooter bearing No.DL-3S-H-8503 while going to

Perhlad Pur. When the appellant reached Bawana Narela Road

near Water Supply Office, he was hit by Maruti car coming from

opposite direction at a very fast speed as a result of which, the

appellant fell down and suffered injuries. The appellant

suffered fracture of both legs and was admitted to Tirath Ram

Shah Hospital for about 15 days where he was operated upon

and a rod was inserted in both the legs of the appellant. The

appellant took follow-up treatment from the hospital for about

one and a half years. The appellant suffered disability of 40%

as per certificate dated 21st December, 1959 (Ex.P-126).

However, the Claims Tribunal disregarded the certificate on the

ground that the certificate does not specify whether the

disability of the appellant was permanent/temporary. The

Claims Tribunal held that the appellant was entitled to

`69,213/- towards medical expenditure, `2,000/- towards

conveyance, `1,000/- towards special diet and `15,000/-

towards loss of income. The Claims Tribunal further awarded

`20,000/- towards pain and suffering. The total compensation

computed is `1,07,300/-. The Claims Tribunal held the

appellant to be 50% contributory negligent on the ground that

the appellant did not produce the driving licence held by him at

the time of the accident.

3. The learned counsel for the appellant has urged the

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

(i) The finding of contributory negligence of the

appellant be set aside.

(ii) The compensation be awarded for loss of amenities

of life.

(iii) The compensation for pain and suffering be

enhanced.

(iv) The compensation for disfiguration be awarded.

(v) The compensation for loss of earning capacity be

awarded.

(vi) The compensation for special diet be enhanced.

(vii) The compensation for conveyance be enhanced.

(viii) The compensation for loss of earning capacity be

computed by taking the minimum wages for a

graduate into consideration.

4. With respect to the driving licence, the learned counsel

for the appellant has produced the original driving licence and

has filed the photocopy of the same along with the affidavit

certifying that the appellant was holding a valid driving licence

at the time of the accident. It is submitted that the appellant

could not produce his licence before the Claims Tribunal as he

was undergoing treatment at that time. The original driving

licence has been perused and the finding of the contributory

negligence passed by the Claims Tribunal on the sole ground

that the appellant did not have a valid driving licence at the

time of the accident is set aside.

5. The Claims Tribunal has not awarded any compensation

to the appellant towards loss of earning capacity on the ground

that the disability of the appellant has not been certified to be

permanent. The notice was issued by this Court to Medical

Superintendant, LNJP Hospital to certify the nature of disability

of the appellant in pursuance to which the Medical

Superintendent of LNJP Hospital has, vide letter dated 13th

October, 2010, certified the disability of the appellant to be

permanent. The appellant is, therefore, entitled to

compensation for loss of earning capacity. The appellant was

working as an Electrician at the time of the accident. It is

claimed that the appellant was earning `4,000/- per month.

However, in the absence of any documentary proof of income,

the income of the appellant is taken to be according to the

minimum wages of `2,361/- at the time of the accident. It is

well settled by catena of judgments of this Court in the cases of

Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182,

National Insurance Company Limited vs. Renu Devi III

(2008) ACC 134 and UPSRTC vs. Munni Devi,

MAC.APP.No.310/2007 decided on 28.07.2008 that the Court

should take judicial notice of increase in minimum wages to

meet the increase in price index and inflation rate. The Court

has taken the view that the minimum wages get doubled over

the period of 10 years and increase in minimum wages is not

akin to future prospects. Following the aforesaid judgments,

the income of the deceased for computation of compensation is

taken to be `3,541.50/- [(`2361 + 4722)/2]. The appellant was

aged 27 years at the time of the accident and by applying the

multiplier of 17 and taking 40% of the same, the loss of earning

capacity is taken to be `2,88,986.40 [40% of (`3,541.50 x 12 x

17)].

6. The Claims Tribunal has awarded `20,000/- towards pain

and suffering which is on a lower side. No compensation has

been awarded towards loss of amenities of life and

disfiguration. 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 Rs.3,00,000/- under the

heads of non-pecuniary damages for 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."

7. The compensation for pain and suffering is enhanced

from `20,000/- to `60,000/-. `50,000/- is awarded towards loss

of amenities of life and `25,000/- is awarded towards

disfiguration.

8. The Claims Tribunal has awarded `2,000/- towards

conveyance and `1,000/- towards special diet. Considering that

the appellant has suffered 40% permanent disability in respect

of both legs and remained under treatment for more than a

year, the compensation towards conveyance is enhanced from

`2,000/- to `10,000/- and compensation towards special diet is

enhanced from `1,000/- to `10,000/-.

9. The appellant is entitled to total compensation of

`5,28,199.40 as per break-up given hereunder:-

Compensation towards loss of `2,88,986.40 earning capacity Compensation towards loss of income `15,000/- Compensation towards medical expenses `69,213/- Compensation for pain and suffering `60,000/- Compensation towards loss of `50,000/- amenities of life Compensation towards disfiguration `25,000/- Compensation towards special diet `10,000/- Compensation towards conveyance `10,000/-

Total `5,28,199.40

10. The appeal is allowed and the award amount is enhanced

from `53,650/- to `5,28,199.40 along with interest @7.5% per

annum for the date of filing of the petition till notice of deposit

under Order XXI Rule 1 of the Code of Civil Procedure.

11. The enhanced award amount along with interest be

deposited by respondent No.3 with UCO Bank A/c Sunny, Delhi

High Court Branch through Mr. Mr. M.M. Tandon, Member-Retail

Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile

No. 09310356400).

12. 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 name of the appellant in the following manner:-

(i) Fixed deposit in respect of 10% of the amount for a

period of one year.

(ii) Fixed deposit in respect of 10% of the amount for a

period of two years.

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

period of three years.

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

period of four years.

(v) Fixed deposit in respect of 10% of the amount for a

period of five years.

(vi) Fixed deposit in respect of 10% of the amount for a

period of six years.

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

period of seven years.

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

period of eight years.

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

period of nine years.

13. The interest on the aforesaid fixed deposits shall be paid

monthly by automatic credit of interest in the Savings Account

of the appellant.

14. 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.

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

permission of this Court.

16. 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.

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

said fixed deposit receipts without the permission of this Court.

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

this Court.

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

Savings Account to any other branch according to the

convenience of the appellant.

20. 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).

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

parties under the signatures of the Court Master.

22. 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 22, 2010