Sh. Saeed vs Sh. Hema Kant & Others
2011 Latest Caselaw 5473 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

                         +MAC APPEAL 315/2006

                                               Reserved on: 30.09.2011
                                             Pronounced on: 15.11.2011

SH. SAEED                                               ...... Appellant

                           Through:       Mr. Anurag Karna, Adv.

                                   Versus
SH. HEMA KANT & OTHERS                                 ...... Respondents

                           Through:       Mr. L.K. Tyagi, Adv. for R-2
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                         No
2.     To be referred to the Reporter or not?               No
3.     Whether the judgment should be reported
       in the Digest ?                                      No

M.L. MEHTA, J.

1. In this appeal the appellant has made a challenge to the

judgment and award dated 16.01.2006 of Motor Accident Claim

Tribunal (MACT), Delhi whereby he had awarded a sum of

Rs.3,10,756/- as compensation in the claim petition filed by the

appellant for seeking compensation on account of injuries sustained

by him in the road accident which took place on 25.11.2003. The

appellant was crossing the road when he was hit by bus DL 1 PB 5371

driven by its driver at a very fast speed and in a rash and negligent

manner. Due to impact of the accident, he fell down and sustained

grave injuries with multiple fractures in his left leg. He was removed

to GTB hospital where he remained admitted from 25.11.2003 to

22.02.2004. Three major operations were conducted on left leg of

the appellant and multiple steel rods were inserted in his left leg.

Skin grafting was also done on the left leg by taking out flesh from

his right thigh. The appellant suffered degloving of left leg besides

painful ankylosis of left knee joints and reduced movement of left

ankle. He sustained permanent disability of 82 percent. He was aged

about 20 years at the time of accident and was working in a metal

factory at Muradabad and earning Rs.5,000 to Rs. 6,000/- per month.

2. The tribunal, based on prescribed minimum wages, estimated

the income of the petitioner to be Rs.2,784/- p.m. He estimated the

financial loss of earning capacity of the appellant to be 40% of the

permanent disability of 82%. He assessed total loss of earning

capacity to be Rs. 2,27,256/- and awarded compensation of

Rs.3,10,756/- in total which was made up of Rs.2,27,256/- on account

of loss of earning capacity, Rs.10,000/- on account of expenses,

conveyance and special diet, Rs. 8500/- on account of loss of income

during the period of treatment, Rs.25,000/- on account of mental pain

and agony and Rs.40,000/- on account of loss of future enjoyment of

life.

3. The appellant has assailed the impugned award on the ground

that the compensation amount awarded was on much lower side. He

has assailed the findings of the learned Tribunal with regard to his

assessing loss of earning capacity to be 40% as against his

permanent disability of 82%. The award of compensation on account

of loss of enjoyment of life, pain and suffering is also alleged to be on

much lower side. Likewise, the award of Rs.10,000/- on account of

medical expenses, conveyance and special diet was also alleged to

be quite meager. The appellant has also assailed the award for not

being awarded compensation on account of attendant charges.

4. I have heard the learned counsel for the appellant and for the

respondent No. 2/insurance company.

5. The petitioner was stated to be working in a metal factory at

Muradabad and earning Rs. 5,000/- to Rs. 6,000/- per month. Neither

any evidence was produced regarding his employment nor to the fact

that he was earning Rs. 5,000/- to Rs. 6,000/- per month from the

factory. In such circumstance the Tribunal has rightly taken the

prescribed minimum wages of Rs. 2,784/- per month. There was no

dispute with regard to the age of the appellant to be 20 years at the

time of accident. There is also no dispute that judicial notice can be

taken of the fact that there is constant increase in minimum wages

by the Government keeping in view the rise in prices of essential

commodities, inflation and price index. In view of the age of the

appellant to be 20 years, it could be expected that he would live long

life and in that eventuality, in due course of time, even prescribed

minimum wages would also increase considerably. Hence, it can be

estimated that the minimum wages which were Rs.2,784/- p.m. (say

Rs.2800/-) at the time of accident in the year 2003 would have been

at least doubled. Thus, as per judicial decisions, the average monthly

income of the appellant can be arrived at by dividing the sum of

present minimum wages and double of the present minimum wages.

In this manner, the average minimum wages of the appellant could

be arrived at Rs. 4200/- per month (Rs.2800/- + Rs. 5,600/- divided

by 2).

6. The Tribunal has recorded that there was ample evidence on

record with regard to the permanent disability of the petitioner. Dr.

Anil Arora, Reader, Orthopedic, GTB Hospital testified regarding the

nature of disability suffered by the appellant to be 82% functional

loss of left lower limb. To my mind, the Tribunal seemed to have

erred in making some guess work in taking the functional disability to

be 40%. In fact, it depends on the facts and circumstances of each

case, particularly, in view of the nature of injury and nature of job

which the injured was doing. There is no evidence whether the

appellant was a skilled worker in the factory or just an ordinary

labourer. However, taking into account the case of an ordinary

labour, the appellant would definitely be incapacitated of the full use

of his left hand. Most of the works which the labourers do, they do

with the use of their hands. In the given facts and circumstances of

the case, the functional permanent disability can be estimated to be

50% in relation to whole body.

7. The Tribunal applied the multiplier of 17, whereas as per the

age of the appellant and in view of the judgment of the Supreme

Court in Sarla Verma and others v DTC and another (2009) ACJ

1298, a multiplier of 18 was to be applied. The appellant could be

said to have suffered loss of Rs. 2100/- per month being 50% of his

average monthly income and applying the multiplier of 18, his total

loss of earning capacity comes out to Rs.4,53,600/- in stead of Rs.

2,27,256/- as assessed by the Tribunal.

8. The Tribunal has awarded Rs. 8,500/- on account of loss of

income for three months, which to my mind, comes out to Rs.

12,600/- as per average monthly income of Rs. 4,200/-. The

appellant would be entitled to this amount on this count.

9. The Tribunal has not awarded any amount to the appellant on

account of his expenses towards attendant charges despite the fact

that PW-2 has stated that he was working as attendant for the

appellant in the hospital and he received Rs. 100/- per day for about

three months. This was a reasonable demand raised by the appellant

for which no strict proof was required to be insisted by the Tribunal.

The appellant will be entitled to Rs. 10,000/- under the head of

expenses for attendant.

10. The Tribunal has awarded Rs. 25,000/- on account of mental

pain and agony and Rs. 40,000/- on account of loss of future

enjoyment of life. Since the appellant is being granted just and

reasonable compensation on account of permanent disability, the

award of compensation Rs. 25,000/- and Rs. 40,000/- respectively

under these two heads seems to be quite just and reasonable.

However, the award of compensation of Rs. 10,000/- only towards

expenses for the treatment, conveyance and special diet seems to be

on quite lower side. Once the nature of injuries and the type of

treatment are believed by the Court and it is also on record that the

injured remained hospitalized for quite some time, the expenses of

treatment, conveyance and special died are unavoidable. Many a

times people do not procure or preserve the receipts of these

expenses. The Court has to take a holistic view of expenses under

these heads. Keeping in view the nature of injuries and period of

hospitalization and treatment, a sum of Rs. 10,000/- each is awarded

on account of expenses on treatment, conveyance and special diet.

Consequently, the appellant would be entitled to the compensation of

Rs. 30,000/- collectively on these heads against Rs. 10,000/- awarded

by the Tribunal.

11. Accordingly, the appellant would be entitled to a total

compensation of Rs.5,71,200/- as against Rs. 3,10,756/- awarded by

the Tribunal. The insurance company, being the insurer, is directed to

pay the enhanced amount of compensation within 30 days from

today to the appellant without interest and if the amount is paid

beyond 30 days the same would be paid with interest of 7.5% per

annum.

12. The appeal stands disposed of.

M.L. MEHTA (JUDGE) November 15, 2011 awanish