Delhi High Court
Smt. Sudha Devi vs Haryana Roadways & Ors on 23 November, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17th November, 2011
Pronounced on: 23rd November, 2011
+ FAO 235/1995
SMT. SUDHA DEVI .... Appellant
Through: Ms. Manjit Chawla, Advocate.
versus
HARYANA ROADWAYS & ORS. ..... Respondents
Through: Mr. Yashpal Rangi, Advocate.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order?
2. To be referred to the Reporter or not?
3. Whether the Order should be reported
in the Digest?
JUDGMENT
G. P. MITTAL, J.
1. This is an appeal for enhancement of claim for compensation
for the injury suffered by the Appellant Sudha Devi in an
accident which took place on 16.10.1985 at about 6:30 PM. As
per the case of the Appellant proved before the Tribunal she
was walking on the kacha road from Badarpur Border to her
house in Mahipal Colony, Katan Pahari, Badarpur. A Haryana
Roadways bus No.HRU-2229 driven rashly and negligently by
Respondent No.3 (Sukhbir Singh) came from behind and struck
against the Appellant. She suffered injuries on both of her legs,
left arm. There was fracture of shaft of femur and sub-
tronchateric fracture of shaft of femur. She was operated upon
and discharged from the hospital on 15.01.1986. Since there
was failure to unite the bone, she was again admitted in All
India Institute of Medical Sciences (AIIMS) on 20.10.1986;
internal fixation was carried out on 26.11.1986 and she was
discharged from the hospital on 29.12.1986. She followed up
with physiotherapy after the surgery. It was the case of the
Appellant before the Tribunal that she earned ` 600/- per month
by doing tailoring work at her house. She claimed a
compensation of ` 2,00,000/-. The Appellant was issued a
Disability Certificate showing disability of 65% of left lower
side of the body.
2. According to the Appellant, she has not been granted any
compensation towards the special diet. The compensation
awarded towards pain and suffering and permanent disability
was on the lower side. She was not granted full compensation
for the amount spent on conveyance. The claimed and the
awarded amount are extracted hereunder in a tabulated form:-
Head Claimed Awarded
(a) Loss of earning @ ` 600/- per 20,400/- 20,400/-
month from the date of the accident i.e.
16.10.1985 till she was attending the
hospital as an Out Door Patient (OPD)
(b) On account of disability of 65% of 100% 19,200/-
left limb works out to 16¼ % of whole
body. Permanent disability/earning round off (a)
capacity & (b)
40,000/-
(c) Physiotherapy & medicines 15,000 15,000
(d) Conveyance 14,400/- 5,800/- @
100/- per visit
for 58 visits.
(e) Hospital charges 820/- 820/-
(f) Cost of implant 400/- 400/-
(g) Pain and sufferings 50,000/- 30,000/-
(h) Attendant charges 15,000/- NIL
(i) Special diet 54,000/- NIL
3. Ms. Manjeet Chawla, learned counsel for the Appellant has
taken me through to the Appellant's testimony who was
examined as PW-5 before the Tribunal. Appellant did testify
that after the accident she was unable to do the tailoring job and
there was loss of income of ` 600/- to ` 700/- per month.
Apart from this bald statement, the Appellant did not adduce
any evidence that she was unable to do the tailoring job because
of the permanent disability suffered in the left lower limb. The
Appellant examined PW-6 Dr. P.K. Dave who testified about
performing the operation for the fracture of shaft of femur. He
was completely silent if on account of the permanent disability
suffered, the Appellant would not be able to do the stitching
work on the sewing machine.
4. In the case of Raj Kumar v. Ajay Kumar & Anr. (2011) 1 SCC
343, the Supreme Court held that permanent physical
disablement and loss of earning capacity are two different
things and an attempt should be made to find out the functional
disablement resulting into loss of future earning capacity. In
Paras 14 and 15, the Supreme Court held as under:-
"14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual
loss of earning capacity may virtually be hundred
percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a
clerk in government service, the loss of his left
hand may not result in loss of employment and he
may still be continued as a clerk as he could
perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in
the case of a driver or carpenter, nor 60% which is
the actual physical disability, but far less. In fact,
there may not be any need to award any
compensation under the head of 'loss of future
earnings', if the claimant continues in government
service, though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not be found suitable for discharging the
duties attached to the post or job which he was
earlier holding, on account of his disability, and
may therefore be shifted to some other suitable but
lesser post with lesser emoluments, in which case
there should be a limited award under the head of
loss of future earning capacity, taking note of the
reduced earning capacity.
15. It may be noted that when compensation is
awarded by treating the loss of future earning
capacity as 100% (or even anything more than
50%), the need to award compensation separately
under the head of loss of amenities or loss of
expectation of life may disappear and as a result,
only a token or nominal amount may have to be
awarded under the head of loss of amenities or
loss of expectation of life, as otherwise there may
be a duplication in the award of compensation. Be
that as it may."
5. In this case there may be discomfort on account of permanent
disablement but it is difficult to say that it affected the
Appellant's earning capacity. The compensation of ` 19,200/-
awarded towards the permanent disability by the Tribunal was
really towards the loss of amenities in life.
6. It is proved on record that the Appellant had to undergo two
operations. The second one on account of non-union of the
femur bone.
7. The Court can take judicial notice of the fact that in such cases
there is always need for the award of some expenses for future
physiotherapy and conveyance. Since this is an old case taking
the rates of 1985, I award a sum of ` 3,000/- towards future
physiotherapy.
8. The Appellant claimed a sum of ` 54,000/- for special diet and `
15,000/- for services of an attendant. The Tribunal dealt with
these claims as under:-
"19. During arguments, Ld. Counsel for the
petitioners placed on record his calculation of
compensation under different heads. In this, he
has claimed ` 54,000/- on account of special diet
for three years @ ` 50/- per day. There is no
evidence to support the same. The petitioner has
already been allowed reimbursement of hospital
charges which are inclusive of food as per
testimony of PW-6. There is no evidence on record
to the effect that apart from the food provided by
the hospital, the petitioner was prescribed any
special diet or that she took any special diet at her
own expenses. There is nothing on record to the
effect that after discharge from the hospital she
was prescribed any special diet or that she was
required to be on some special diet. Hence
nothing separately is being awarded under this
head.
20. During arguments, further a sum of `
18,000/- was claimed on account of attendant
charges @ ` 500/- per month for three years.
Again, there is not an iota of evidence on record to
substantiate the same. There is not even oral
testimony of PW-5 that she incurred any expenses
on account of attendant. Hence nothing can be
granted on this count."
9. It is true that the Appellant did not lead any evidence to prove
that she spent any amount on special diet. The Tribunal was
content to hold that during the period of hospitalization the diet
was provided by the hospital. The hospitalization was only for
a period of 164 days. Although, the Appellant remained under
treatment for almost three years. The Appellant ought to have
been awarded some amount towards the special diet which is
necessary in case of serious fracture, particularly when there is
non-union.
10. Considering the fact that this accident took place in the year
1985 and the treatment continued till August, 1998, I award a
sum of ` 20/- per day towards special diet for 35 months (from
October, 1985 to August, 1988) i.e. ` 600/- per month totaling `
21,000/- i.e. (35 x 600 = 21,000/-).
11. Similarly, no evidence was adduced by the Appellant that she
engaged any attendant and paid ` 500/- per month for three
years. But, at the same time, the Court cannot be oblivious of
the fact that the Appellant must have been accompanied by
some family member (if not by an attendant) and the family
member must have lost his/her time. I would, therefore, award
a lump sum compensation of ` 3,000/- for the services of an
attendant/family member for accompanying the Appellant
during her visits to the hospital and during the period of
hospitalization. (Delhi Transport Corporation and Anr. v. Lalita
AIR 1981 Delhi 558).
12. In view of the foregoing discussion, the Appellant is entitled to
the following additional compensation:-
1. Future physiotherapy = ` 3,000/-
2. Special diet = ` 21,000/-
3. Attendant charges = ` 3,000/-
-----------------------
TOTAL = ` 27,000/-
-----------------------
13. The enhanced amount shall carry interest @ 7.5 % per annum
from 14.04.1986 i.e. the date of filing of the petition before the
Tribunal till realization.
14. Haryana Roadways, (Respondents No.1 and 2) are directed to
deposit the enhanced amount along with the interest in UCO
Bank, Delhi High Court Branch within six weeks. 50% of the
enhanced award amount shall be transferred in the saving
account of the Appellant which the Appellant would be entitled
to withdraw immediately. Rest 50% amount shall be kept in a
Fixed Deposit for the period of three years.
15. The impugned award is modified and the appeal stands disposed
of in above terms. No costs.
16. All pending applications stands disposed of.
17. Copy of the order may be sent to the Trial Court for information
and compliance.
(G.P. MITTAL)
JUDGE
NOVEMBER 23, 2011/vk
