Delhi High Court
Om Prakash vs Amitabh Khosla & Ors. on 13 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 8th February, 2012
Pronounced on: 13th February, 2012
+ FAO. No.200/2000
OM PRAKASH. ..... Appellant
Through: Mr. Peeush Sharma, Advocate
Versus
AMITABH KHOSLA & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appeal is for enhancement of compensation of `41,316.30
awarded to the Appellant who suffered grievous injuries in an
accident which took place on 09.02.1990 while the Appellant
was riding on a two wheeler scooter No.DBZ 9422 and was hit
by a Maruti car bearing No.DNB 4856 driven by the First
Respondent. It is not in dispute that the offending Maruti car
was insured with M/s. Oriental Insurance Co. Ltd., the Third
Respondent. On facts, the Claims Tribunal found that the
accident was caused on account of negligent and rash driving
by the First Respondent. There is no challenge to the said
finding by any of the Respondents. The Claims Tribunal
awarded the compensation of `41,316/- under various heads
which can be extracted hereunder:
S.No. Compensation under Awarded by the
various heads Claims Tribunal
1 Medical Expenses for the Treatment ` 2116/-
2 Conveyance, Special Diet and ` 2,000/-
Medicine
3 Loss of Injuries ` 20,000/-
4 Pain, Shock and Suffering `10,000/-
5 Attendant Charges ` 7,200/-
TOTAL ` 41,316/-
2. The principle governing grant of compensation in injury and
death cases is to place the claimant in almost the same financial
position as they were in before the accident. In Concord of
India Insurance Co. Ltd. v. Smt. Nirmala Devi & Ors., 1979 (4)
SCC 365, the Supreme Court observed that the determination
of compensation must be liberal, not niggardly since the law
values life and limb in a free country in generous scales.
3. In General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Mrs. Susamma Thomas & Ors.,
1994 ACJ 1, the Supreme Court held as under:-
"5......The determination of the quantum must answer
what contemporary society "would deem to be a fair sum
such as would allow the wrongdoer to hold up his head
among his neighbours and say with their approval that
he has done the fair thing". The amount awarded must
not be niggardly since the law values life and limb in a
free society in generous scales'. All this means that the
sum awarded must be fair and reasonable by accepted
legal standards."
4. In Oriental Insurance Co. Ltd. v. Ram Prasad Varma & Ors.,
2009 (2) SCC 712, the Supreme Court held that the expression
'just' must be given its logical meaning. Though, the
compensation awarded cannot be a bonanza or a source of
profit but in considering as to what would be just and equitable,
all facts and circumstances must be taken into consideration.
(I) COMPENSATION TOWARDS EXPENSES ON
TREATMENT AND PURCHASE OF MEDICINES
5. The learned counsel for the Appellant has taken me through the
Trial Court record and has also placed on record a typed copy
of the amount spent on the treatment on referring to various
pages in the Trial Court record it can be seen that the Appellant
spent a sum of ` 16,508/- towards the treatment. It is
noteworthy that the bill paid to the Ganga Ram Hospital at
page 113 of the Trial Court was for `7,251/- and the charges
for the MRI at page 217 of the Trial Court record was `4,000/-.
It is urged by the learned counsel for the Appellant that many
more such bills could not be preserved. In the circumstances of
the case, the Appellant is entitled to a compensation of
`20,000/- enhanced from `2,116/- for his hospitalization,
purchase of medicines and for various tests undertaken by him
in Ganga Ram Hospital and elsewhere.
(II) CONVEYANCE AND SPECIAL DIET & OTHER HEADS
6. The Appellant suffered serious injuries on his head when he
was admitted in Dr. Ram Manohar Lohia Hospital immediately
after the accident. There were injuries on his forehead; he was
bleeding through his left ear. The Appellant was thereafter
removed to Sir Ganga Ram Hospital. C.T. Scan was got done
immediately on his admission on 09.02.1990 itself. The
Appellant remained admitted in the earlier said hospital from
09.02.1990 to 18.02.1990. The Appellant entered the witness
box as PW8 and deposed that on account of the injuries
suffered, he became unconscious and regained consciousness
after 10 days in Sir Ganga Ram Hospital. He testified that his
memory has become weak. He suffers from headache every
now and then. He deposed that he had to take special diet for
two years as prescribed by the Doctor.
7. Harnam Das (PW7), the Appellant's father testified that he
spent `10,000/- on conveyance needed for the treatment of his
son. He used to spent `50/- per day for special diet for a period
of two years. He deposed that the Appellant was working as a
Salesman with him and he used to give him a salary of `2,000/-
per month. After two years, he started working with him for
two to three hours.
8. Dr. J.D.A. Rana (PW4), an ENT Specialist deposed that he
examined the Appellant(Om Prakash) on 22.08.1994. He was
attending to him since 11.03.1992 for the ailment in his ear.
On 22.08.1994, his audiogram was done which revealed
hearing within normal limits in the right ear. His left ear
showed a conductive hearing loss of 35 decimals in the higher
frequencies. He estimated that the loss of hearing as on
22.08.1994 to be about 15%. The testimony of this witness
was not challenged in cross-examination.
9. PW2 Dr. S.K. Sogani from Ganga Ram Hospital deposed that
on 09.02.1992 at 6:00 pm, he examined the Appellant being a
Neuro Surgeon. A routine brain scan was got done which
showed that both sides of the forebrain were having clots. The
Appellant was having wounds on his forehead which were
sutured at RML Hospital immediately after the accident.
Bleeding from his left ear and vomiting was persisting since
the time of the accident. He deposed that he examined the
patient on 11.07.1990, 27.08.1990 and 07.08.1992 after he was
discharged from the Hospital. On 18.02.1990, the Appellant
had complained of forgetfulness and weakness in having sex
for which a brain E.E.G. was done on 10.08.1992. The E.E.G.
was conducted by Dr. Col. R.M. Dhamija which was found to
be abnormal. The patient was put on treatment. He deposed
that such a patient could have permanent partial memory
impairment. He proved various prescriptions given by him.
He deposed that he charged `200/- per consultation. In cross-
examination, the witness deposed that to assess the percentage
of loss of memory, a memory test was required to be performed
by a Neuro Psychologist. He did not advise this test to be
conducted.
10. From the evidence on record, it is established that the Appellant
suffered injuries resulting into his hospitalization for 10 days
and a prolonged treatment as an outpatient for more than four
years. The Appellant had to periodically approach the Doctor
for consultation and treatment. He was required to be
adequately compensated for transportation charges for visiting
the Doctor. Similarly, the Appellant needed special diet
considering the nature of injuries suffered by him. For 50 such
visits @ ` 200/- per visit, I would award a sum of `10,000/-
towards conveyance. I would feel that a sum of `5,000/- in
lump sum towards special diet would be just and fair and
accordingly award the same.
11. The Claims Tribunal did not award any compensation towards
loss of earning. The Appellant was aged 24 years and was
working as a Salesman at his father's shop Bose Electronics.
The Appellant examined PW6 M.S. Verma, the Accountant of
Bose Electronics to prove the salary certificate Ex.PW6/1. The
certificate says that the Appellant was being given a salary of
`2,000/- per month. In the Assessment Year 1990-91 any
income beyond `18,000/- was subject to Income Tax. The
Appellant's father had a good showroom in the name and style
of Bose Electronics. Obviously, the Appellant who was a
young boy of 24 years at the time of the accident would
naturally assist his father at the shop. Even if the certificate
Ex.PW6/1 is ignored, I would assess the services rendered by
him @ `1,000/- per month and thus award a compensation of
`12,000/- for not being able to attend to his work for one year.
The compensation of `10,000/- considering the nature of
injuries needs to be enhanced to `20,000/-. Compensation of
`20,000/- towards the disability in hearing and loss of
amenities is just and fair. I would also not interfere in the
award of compensation of `7,200/ as attendant charges.
12. The compensation is recomputed as under:-
S.No. Compensation under Awarded by Awarded by
various heads the Claims the High
Tribunal Court
1. Medical Expenses for ` 2,116/- ` 20,000/-
the Treatment
2. (a) Conveyance, ` 2,000/- `10,000/-
(b) Special Diet `5,000/-
3. Loss of Injuries/ `20,000/- `20,000/-
Amenities
4. Pain, Shock and `10,000/- `20,000/-
Suffering
5. Attendant Charges ` 7,200/- ` 7,200/-
6. Loss of Earning -- ` 12,000/-
Total `41,316/- ` 94,200/-
13. The overall compensation is enhanced from `41,316/- to `
94,200/-.
14. The Claims Tribunal granted interest @ 12% per annum but
restricted the grant of interest to just five years on the ground
that the Appellant did not take steps to pursue his case. I have
perused the Trial Court record. The delay can be attributed to
the Appellant for just two years. The claim petition was filed
on 07.02.1991 and came to be decided on 09.03.2000 i.e. after
nine years. The Appellant, therefore, would be entitled to
interest @ 12% (as awarded by the Claims Tribunal) for a
period of seven years instead of five years.
15. The enhanced compensation of `52,884/- shall carry interest @
12% per annum as granted by the Tribunal for a period of
seven years upto the date of the award.
16. The enhanced compensation shall carry interest @ 7.5% per
annum from the date of the award i.e. 09.03.2000 upto the date
of the payment.
17. The enhanced compensation along with interest shall be
deposited by the Respondent No.3 Oriental Insurance Co. Ltd.
with the Registrar General of this Court within 30 days. Since
this is an old case, the entire enhanced amount on deposit shall
be released immediately.
18. In terms of the above, the Appeal is disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 13, 2012
pst
