Sham Lal Bhatia vs Bikan & Ors.
2012 Latest Caselaw 327 Del

$~R-5
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 17th January, 2012
+       FAO 580/1999

        SHAM LAL BHATIA                             ..... Appellant
                    Through:             Mr. Ashok Popli, Adv.

                     versus

        BIKAN & ORS                                ..... Respondent
                              Through:   Mr. Kanwal Chaudhary, Adv.
                                         for R-3.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                              JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant suffered serious injuries i.e. fracture in both bones of his right leg and fracture of shaft femur of his left leg with extensive CLW and crush injury, the left leg above knee had to be amputated. Two wheeler No.DL-2S-F-2613 on which the Appellant was riding at the time of accident was badly damaged.

2. The Tribunal awarded the following amount of compensation: -

          S. No.   Compensation Head                     Amount (`)





           1.     On account of expenses incurred on           2,22,314
                 hospitalization, nursing, artificial
                 limb, physiotherapy and medicines

          2.     On account of conveyance                       14,000

          3.     Future conveyance                              20,000

          4.     Permanent disability                         1,69,000

          5.     Pain and suffering                             70,000

                                              TOTAL           4,95,314

3. The compensation of ` 4,95,314/- awarded by the Tribunal also carries interest @ 12% per annum.

4. The learned counsel for the Appellant submits that loss of earning capacity was wrongly determined by the Tribunal; no compensation for future treatment and maintenance of the artificial limb as provided by Endolite was granted by the Tribunal. The learned counsel for the Appellant urges that a sum of ` 20,000/- awarded towards future conveyance was inadequate.

5. The learned counsel for the Respondent supports the award.

6. A sum of ` 2,22,314/- was awarded towards the treatment provision of artificial limb, physiotherapy and for the medicines purchased on the basis of the Bills produced by the Appellant.

A sum of ` 14,000/- was granted towards conveyance expenses for visiting Jaipur and for visiting doctors for consultation from time to time.

7. A sum of ` 1,69,000/- awarded towards loss of future earning was really the compensation towards loss of amenities in life in view of Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. No evidence was led by the Appellant to prove that he suffered the loss of earning capacity. The Appellant was a cloth merchant and had a shop. He had an artificial limb for which adequate compensation was provided. In the absence of any specific evidence that he was prevented from going to the shop and attending to the customers due to the nature of injuries suffered by him, the compensation for loss of earning capacity cannot be granted. The amount of ` 1,69,000/- awarded by the Tribunal is taken towards loss of earning capacity, disfigurement and loss of expectation of life. The compensation of ` 70,000/- awarded towards pain and suffering considering the long duration of treatment of the Appellant was just and fair.

8. It is urged by the learned counsel for the Appellant that the artificial limb purchased from Endolite require its maintenance from time to time. No compensation was awarded by the Tribunal for this. It is submitted that considering the nature of injuries some provision ought to have been made for the expenses which will be incurred on physiotherapy in the future.

9. In fact the Appellant did not bring any evidence to prove that the artificial limb was required to be maintained, periodically. Perhaps, the same was not in the knowledge of the Appellant. During the course of arguments, the learned counsel for the Appellant produced before me a bill for ` 7,500/- paid to Endolite India Ltd. for repair/ maintenance of the artificial limb.

10. In my view, although no evidence was produced by the Appellant in this regard; he needed to be compensated as the artificial limb would require maintenance from time to time. The Appellant would have also needed physiotherapy after the amputation of the left leg. In the circumstances, I would award a lump sum compensation of ` 20,000/- towards maintenance of the artificial limb and a sum of ` 5,000/- towards future physiotherapy.

11. Since, these were future expenses and one bill for the year 2003 (after filing of the appeal) has been placed on record. The Appellant would be entitled to interest for a period of 8 years during the pendency of the appeal @ 7.5% per annum till the date of payment.

12. The enhanced amount of ` 25,000/- along with interest @ 7.5% per annum for a period of 8 years till the date of this award and hereafter till the date of payment, shall be deposited with the Registrar General of this Court within 30 days, which shall be released to the Appellant immediately.

13. The Appeal is allowed in above terms.

(G.P. MITTAL) JUDGE DECEMBER 17, 2011 hs