Shri Sushil Kumar vs The Oriental Insurance Co. Ltd.
2010 Latest Caselaw 4640 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +    MAC.APP.No.90/2009


                              Date of Decision : 1st October, 2010

%

      SHRI SUSHIL KUMAR                 ..... Appellant
                    Through : Mr. Sandeep Thakur, Adv.
                              along with the appellant.

                     versus

      THE ORIENTAL INSURANCE CO. LTD.     ..... Respondents
                     Through : Mr. Tarkeshwar Nath and
                               Mr. Saurabh Kumar Tuteja,
                               Advs.


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 (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of `77,986/- has been

awarded to the appellant. The appellant seeks enhancement

of the award amount.

2. The accident dated 26th April, 2005 resulted in grievous

injuries to the appellant. The appellant was going on his

motorcycle from Seelam Pur to I.S.B.T., Kashmere Gate when

he was hit by truck bearing No.HR-38F-5815.

3. The appellant sustained fracture in his right thigh, left

leg, neck bone and lacerated wound on his left hand. He was

shifted to Sushruta Trauma Centre where he remained till

29th April, 2005 and from there he was shifted to LNJP

Hospital where he remained till 17th May, 2005. The

appellant was operated upon in LNJP Hospital where a rod

was inserted in his right thigh and the plaster was applied on

his left leg which was removed after three months. Stitches

were applied on his left hand and a neck collar was provided

for treating the injuries caused to the neck. The learned

Tribunal has awarded `17,173/- towards expenditure on

medicines, `20,813/- towards loss of wages, `30,000/-

towards pain and suffering and `10,000/- towards

conveyance charges and special diet. The total

compensation awarded is `77,986/-.

4. Vide order dated 20th January, 2010, the appellant was

directed to be examined by the Board to determine the

permanent disability in pursuance to which the Medical

Superintendent, Aruna Asaf Ali Government Hospital

constituted the Board which examined the appellant and

issued a disability certificate certifying that the appellant has

suffered 20% permanent disability in respect of right lower

limb.

5. The learned counsel for the appellant has urged the

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

(i) Compensation be awarded for loss of earning

capacity due to permanent disability.

(ii) Compensation for loss of income during treatment

be enhanced.

(iii) Compensation for future medical expenses be

awarded.

(iv) Compensation for conveyance and special diet.

(v) Compensation for pain and suffering be enhanced.

(vi) Compensation for loss of amenities and

disfiguration be awarded.

(vii) The rate of interest be enhanced form 7% per

annum to 7.5% per annum.

6. The Claims Tribunal has not awarded any compensation

for loss of earning capacity due to permanent disability as

the permanent disability certificate had not been issued at

that time. The appellant has been examined by the medical

board constituted by Aruna Asaf Ali Government Hospital in

pursuance to the order dated 20th January, 2010 and the

permanent disability of the appellant has been assessed to

be 20% in relation to right lower limb vide disability

certificate dated 15th March, 2010 which is on record. The

appellant is, therefore, entitled to loss of earning capacity

due to permanent disability of 20%.

7. The appellant was working as a driver at the time of the

accident and was driving a LMV but after the accident he

cannot bend his right leg and is, therefore, unable to drive

any vehicle. The appellant is present in Court and he walks

with the support of the stick. The learned counsel for the

appellant submits that the loss of earning capacity of the

appellant be taken as 100% as he cannot drive any vehicle

now. The appellant who is present in Court submits that he

is now running a tea shop. Considering that the appellant is

now working, his loss of earning capacity due to the

permanent disability is taken to be 20%. The Claims Tribunal

has taken the minimum wages of `3,468.90 as the income of

the appellant. However, the increase in minimum wages due

to inflation and rise in price index has not been taken into

consideration. 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 appellant is taken to be `5,203.35 [(`3,468.90 +

`6937.80)/2]. The appellant was aged 38 years at the time

of the accident. Applying the multiplier of 15 as per the

judgment of the Hon'ble Supreme Court in the case of Sarla

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

129 and taking 20% of the same, the loss of earning

capacity of the appellant is computed to be `1,87,320.60

[20% of (`5,203.35 x 12 x 15)].

8. With respect to the loss of income during treatment,

the Claims Tribunal has awarded compensation for a period

of six months. Since the appellant remained under

treatment for a period of six months, the compensation for

loss of wages during treatment does not warrant any

enhancement.

9. With respect to expenditure on future treatment, it is

noted that a rod was inserted in the right thigh of the

appellant for which the appellant would require a surgery in

future for removal of the rod. The appellant has deposed

with respect to the same in his evidence before the Claims

Tribunal. The appellant also deposed that the said operation

in future would cost `25,000 to `30,000/- and during that

period, he would again be confined to bed for about 2-3

months. The Claims Tribunal has not awarded any

compensation on this account. `25,000/- is awarded to the

appellant towards surgery which he would require in future

and `15,000/- is awarded towards his confinement to bed

after the surgery. The total compensation towards future

treatment and loss of wages on that account is computed to

be `40,000/-

10. The Claims Tribunal has awarded `30,000/- towards

pain and suffering which is on a lower side considering the

permanent disability of 20% suffered by the appellant. The

Claims Tribunal has also not awarded any compensation for

loss of amenities of life and disfiguration. In the facts and

circumstances of this case, the compensation towards pain

and suffering is enhanced from `30,000/- to `40,000/.

`40,000/- is awarded towards loss of amenities of life and

`25,000/- is awarded towards disfiguration.

11. The Claims Tribunal has awarded `10,000/- towards

conveyance charges and special diet. The appellant

remained under treatment for about six months. The

appellant has deposed in the witness box that he had to visit

hospital during the period of treatment for physiotherapy and

he used to commute by three wheeler. The appellant has

suffered permanent disability of 20% and a rod has been

inserted in his leg and is unable to walk without a stick.

Considering the condition of the appellant, compensation of

`10,000/- awarded by the Claims Tribunal towards

conveyance and special diet is enhanced to `20,000/-.

12. The appellant is entitled to total compensation of

`3,73,133.60, the breakup of which is as under:-

Compensation for loss of `1,87,320.60 earning capacity

Compensation for loss of wages `20,813/-

       Compensation     for   future              `40,000/-
       treatment and confinement

       Compensation      for   pain    and        `40,000/-
       suffering

       Compensation      for    loss     of       `40,000/-
       amenities of life

       Compensation for disfiguration             `25,000/-

       Compensation          towards              `20,000/-
       conveyance and special diet

                                 TOTAL        `3,73,133.60

13. The appeal is allowed and the award amount is

enhanced from `77,986/- to `3,73,133.60. The Claims

Tribunal has awarded interest @ 7% per annum which is

enhanced to 7.5% per annum following the judgment of the

Hon'ble Supreme Court in the case of Dharampal & Ors.

vs. U.P. State Road Transport Corporation, III 2008

ACC (1) SC.

14. The enhanced award amount along with interest be

deposited by the respondent with State Bank of India A/c

Sushil Kumar Tis Hazari Court Branch through Mr. H.S.

Rawat, Relationship Manager, Tis Hazari Branch, Tis Hazari

(Mb: 09717044322) within 30 days.

15. Upon the aforesaid amount being deposited, the State

Bank of India is directed to release 10% of same to the

appellant by transferring the same to his Saving Bank

Account. 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.

16. The interest on the aforesaid fixed deposits shall be

paid monthly by automatic credit of interest in the Savings

Account of the appellant.

17. 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.

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

permission of this Court.

19. 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.

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

said fixed deposit receipts without the permission of this

Court.

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

this Court.

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

the Savings Account to any other branch according to the

convenience of the appellant.

23. The appellant shall furnish all the relevant documents

for opening of the Saving Bank Account and Fixed Deposit

Account to Mr. H.S. Rawat, Relationship Manager, Tis Hazari

Branch, Tis Hazari (Mb: 09717044322).

24. List for compliance on 3rd December, 2010.

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

parties under the signatures of the Court Master.

26. Copy of this order be also sent to Mr. H.S. Rawat,

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

09717044322) under the signature of Court Master.

J.R. MIDHA, J October 01, 2010