Delhi High Court
Mst. Imran Khan vs Mohan Bhoyan & Ors. on 30 March, 2012
Author: J.R. Midha
R-20(part-1)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.No.58/2007
% Reserve on : 10th February, 2012
Date of decision : 30th March, 2012
MST. IMRAN KHAN .......Appellant
Through : Mr. I.A. Rahmani, Adv.
versus
MOHAN BHOYAN & ORS. ........Respondents
Through : None.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the award of the Claims
Tribunal whereby compensation of `2,20,300/- has been
awarded to the appellant. The appellant seeks enhancement
of the award amount.
2. The accident dated 2nd September, 2000 resulted in
grievous injuries to the appellant. The appellant was aged 16
years at the time of accident. The appellant was admitted in
Lok Nayak Jai Prakash Hospital on 2nd September, 2000. The
appellant was discharged on 6th September, 2000 and he
continued the treatment in the OPD for about four years. The
appellant is disabled to the extent of about 40% in respect of
the right ankle as per the disability certificate - Ex.PW3/2. The
All India Institute of Medical Sciences examined the appellant
and issued a certificate, Ex.PW3/1 that the IQ was within the
range of 45% to 50% and had moderate mental retardation.
PW-4, Professor Manju Mehta appeared in the witness box and
deposed that the intelligence of the appellant was assessed
and the disability was found to be 45% to 50% and there were
no chances of any improvement in the future. She further
deposed that the appellant had developed moderate mental
retardation after the accident due to the head injury (Ex.PW3/3
& Ex.PW3/J). The appellant claimed to be self employed,
earning `4500/- per month in leather purse business. The
Claims Tribunal took the annual income of the deceased as
`15,000/- per annum and applied the multiplier of 16. The
Claims Tribunal took the loss of earning capacity of the
appellant to be 50% on the basis of the disability certificate
and awarded `1,20,000/- towards loss of earning capacity due
to permanent disability. The claim Tribunal awarded `20,300/-
towards expenditure on treatment, `10,000/- towards special
diet and conveyance, `30,000/- towards non-pecuniary
compensation and `40,000/- towards permanent mental
retardation. The total compensation awarded by the Claims
Tribunal to the appellant is `2,20,300/- along with interest @
7% per annum.
3. The learned counsel for the appellant has made following
submissions at the time of hearing of this appeal:-
(i) The compensation for loss of pain and suffering be
enhanced.
(ii) The compensation for loss of amenities of life be
enhanced.
(iii) The compensation for loss of income due to permanent
disability be enhanced.
(iv) The rate of interest be enhanced from 7% per annum to
12% per annum.
4. The appellant has suffered about 40% disability with
respect to the right ankle and 45% to 50% disability with
respect to his medical condition with no chance of
improvement which has resulted in 50% loss of earning
capacity in respect of which the Claims Tribunal has awarded a
sum of `30,000/- as non-pecuniary compensation. In Oriental
Insurance Company Ltd. v. V.S. Vijay Kumar Mittal,
2008 ACJ 1300, this Court discussed the principles relating to
the award of non-pecuniary compensation towards pain and
suffering, loss of amenities of life and disfiguration. This Court
examined all the previous judgments with respect to the non-
pecuniary compensation awarded in the case of permanent
disability and held that the courts have awarded about
`3,00,000/- under the heads of non-pecuniary damages
for permanent disability of 50% and above. The findings of
this Court are as under:-
"10. The possession of one's own body is the first
and most valuable of all human rights and while
awarding compensation for bodily injuries this
primary element is to be kept in mind. Bodily injury
is to be treated as a deprivation which entitles a
claimant to damages. The amount of damages
varies on account of gravity of bodily injury. Though
it is impossible to equate money with human
suffering, agony and personal deprivation, the
Court and Tribunal should make an honest and
serious attempt to award damages so far as money
can compensate the loss. Regard must be given to
the gravity and degree of deprivation as well as the
degree of awareness of the deprivation. Damages
awarded in personal injury cases must be
substantial and not token damages.
11. The general principle which should govern the
assessment of damages in personal injury cases is
that the Court should award to injured person such
a sum as will put him in the same position as he
would have been in if he had not sustained the
injuries.
12. Broadly speaking, while fixing an amount of
compensation payable to a victim of an accident,
the damages have to be assessed separately as
pecuniary damages and non pecuniary damages.
Pecuniary damages are those which the victim has
actually incurred and which is capable of being
calculated in terms of money. Whereas, non
pecuniary damages are those which are incapable
of being assessed by arithmetical calculations.
13. Pecuniary loss may include the following:
(i) Special damages or pre-trial pecuniary loss.
(ii) Prospective loss of earnings and profits.
(iii) Medicinal expenses.
(iv) Cost of future care and other expenses.
14. Non pecuniary loss may include the following:
(i) Pain and suffering.
(ii) Damages for mental and physical shock.
(iii) Loss of amenities of life which may include a
variety of matters i.e. on account of injury the
injured may not be able to walk, run or sit etc.
(iv) Loss of expectation of life i.e. on account of
injury normal longevity of the life of the
person concerned is shortened.
(v) Disfigurement.
(vi) Discomfort or inconvenience, hardship,
disappointment, frustration and mental stress
in life.
xxxxx
18. In order to properly appreciate the contentions
advanced by the learned counsel for the appellant, I
note the following judgments:-
(i) B.N.Kumar vs. D.T.C., 118 (2005) DLT 36.
In said case, injured sustained crush injuries on his
right leg leading to its amputation above knee in a
road accident on 5th November 1987. He suffered a
permanent disability of 85%. Noting various
judgments wherein Courts had awarded
`3,00,000/- under the head non-pecuniary
damages, a Single Judge of this Court awarded
`75,000/- for 'pain and suffering' and `2,00,000/-
for 'continuing disability suffered by him'. Thus, a
total of `2,75,000/- was awarded under this head.
(ii) Fakkirappa vs. Yallawwa & Anr., 2004 ACJ 141
In said case, a minor male child sustained grievous
injury in a road accident which occurred on
8.5.2000 resulting in amputation of his left leg
below knee. Considering the gravity of injury
suffered the injured, Division Bench of Karnataka
High Court awarded following compensation under
the head 'non-pecuniary damages':-
(i) Pain and suffering : `50,000/-
(ii) Loss of amenities of life : `1,00,000/-
(iii) Loss of marriage prospects : `50.000/-
(iv) Damages for amputation of : `1,50,000/-
leg before knee
(v) Loss of expectation of life : `50,000/-
_____________
Total : `4,00,000/-
_____________
(iii) K. Shankar v. Pallavan Transport Corporation,
2001 ACJ 488
In said case, injured sustained serious injuries on
his right leg in an accident on 14.2.1989. His right
leg was amputated and he suffered permanent
disability of 80%. A learned Single Judge of Madras
High Court awarded the following compensation
under the head 'non-pecuniary damages'.
(i) For permanent disability : `80,000/-
(ii) Pain and suffering : `50,000/-
(iii) Loss of expectation of
life and proper marital : `50,000/-
alliance
(iv) For mental agony : `1,00,000/-
_____________
Total : `2,80,000/-
_____________
(iv) M. Jaganathan v. Pallavan Transport
Corporation, 1999 ACJ 366
In said case, injured aged 45 years sustained
injuries in an accident on 21.6.1990. The injury
sustained by the injured resulted in the amputation
of his left leg above the knee. Division Bench of
Madras High Court awarded following compensation
under the head 'non pecuniary damages':-
(i) Pain and suffering : `1,00,000/-
(ii) Compensation for : `2,00,000/-
continuing permanent
disability
(iii) Mental agony, torture and : `75,000/-
Humiliation because
of Amputation _______________
Total : `3,75,000/-
_______________
(v) Bhagwan Singh Meena v. Jai Kishan Tiwari, 1999
ACJ 1200
In said case, the injured sustained severe and
serious injuries on account of the road accident. His
right leg was amputated. A learned Single Judge of
Rajasthan High Court awarded a compensation of
`3,00,000/- under the head non-pecuniary
damages.
(vi) Dr. Gop Ramchandani v. Onkar Singh & Ors.,
1993 ACJ 577
In said case, in an accident which had occurred on
17.12.1985, injured sustained injuries because of
which his left leg was amputated resulting in 50%
permanent disability. A Single Judge of Rajasthan
High Court awarded a compensation of `3,00,000/-
under the head 'non pecuniary damages'.
Break-up of the compensation under the said head
is as under:-
(i) Physical and mental agony : `1,00,000/-
(ii) Permanent disability : `1,00,000/-
(iii) Loss of social life and loss : `1,00,000/-
in profession
_____________
Total : `3,00,000/-
_____________
(vii) Jitendra Singh v. Islam, 1998 ACJ 1301
In said case, in an accident which had occurred on
14.02.1992, injured sustained injuries because of
which his left leg was amputated resulting in 55%
permanent disability. A Single Judge of Rajasthan
High Court awarded a compensation of `3,00,000/-
under the head 'non pecuniary damages'.
(viii) Iranna v. Mohammadali Khadarsab Mulla &
Anr. 2004 ACJ 1396
In said case, on 19.4.2000, injured aged 7 years
met with an accident. Due to the said accident, he
sustained grievous injuries resulting in amputation
of his left leg below knee. Tribunal awarded
following compensation to him under the head 'non
pecuniary damages':-
(i) Pain and suffering : `50,000/-
(ii) Loss of amenities, happiness, : `1,00,000/-
frustration
(iii) Loss of marriage prospects : `50,000/-
(iv) Amputation of leg below knee : `1,50,000/-
and knee dis-articulation
_____________
Total : `3,50,000/-
_____________
From the afore noted judicial decisions, a trend
which emerges is that between the years 1985 to
1990, Courts have been awarding about `3,00,000/-
under the head 'non pecuniary damages' for
amputation of leg resulting in permanent disability
of 50% and above."
5. Following the aforesaid judgment, a sum of `50,000/- is
awarded to the appellant towards pain and suffering, `50,000/-
is awarded towards loss of amenities of life and `50,000/- is
awarded towards disfiguration.
6. The Claims Tribunal has taken the loss of earning
capacity of the appellant to be 50% on the basis of the
disability certificate which is fair and reasonable considering
that the appellant suffered about 40% disability with respect to
the right ankle and moderate mental retardation after the
accident due to head injury as deposed by PW-4, Professor
Manju Mehta. However, the Claims Tribunal has erred in
taking the income of the appellant to be `15,000/- per annum.
The appellant was self-employed and in the absence of
sufficient proof of income, the Claims Tribunal ought to have
taken the minimum wages for a skilled worker into
consideration. The minimum wages in respect of a skilled
worker at the relevant time were `2,948/- per month. The
appellant was aged 16 years at the time of the accident and
applying the multiplier of 18 and taking 50% of the same, the
loss of earning capacity due to permanent disability is
computed to be `3,18,384/- [(`2,948 x 12 x 18)/2].
7. The appellant is entitled to total compensation of
`4,98,684/- as per the break-up given hereunder:-
1. Compensation for pain and `50,000/-
suffering
2. Compensation for loss of `50,000/-
amenities of life
3. Compensation for disfiguration `50,000/-
4. Compensation for loss of earning `3,18,384/-
capacity due to permanent
disability
5. Compensation towards `20,300/-
expenditure on treatment
6. Compensation towards special `10,000/-
diet and conveyance
Total `4,98,684/-
8. The Claims Tribunal has awarded interest @7% per
annum which is on a lower side. The Apex Court has awarded
interest @9% per annum in the recent case of MCD v.
Association of Victims of Uphaar Tragedy, AIR 2012 SC
200. Following the judgment of the Apex Court, the rate of
interest is enhanced from 7% per annum to 9% per annum.
9. The appeal is allowed and the award amount is enhanced
from `2,20,300/- to `4,98,684/- along with interest @9% per
annum from the date of filing of the claim petition till
realization. The enhanced award amount along with interest be
deposited with UCO Bank, Delhi High Court Branch by means of
cheque drawn in the name of UCO Bank A/c Imran Khan.
10. Upon the aforesaid amount being deposited, the UCO Bank
is directed to release 10% of the amount 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% for a period of one
year.
(ii) Fixed deposit in respect of 10% for a period of two
years.
(iii) Fixed deposit in respect of 10% for a period of three
years.
(iv) Fixed deposit in respect of 10% for a period of four
years.
(v) Fixed deposit in respect of 10% for a period of five
years.
(vi) Fixed deposit in respect of 10% for a period of six
years.
(vii) Fixed deposit in respect of 10% for a period of seven
years.
(viii) Fixed deposit in respect of 10% for a period of eight
years.
(ix) Fixed deposit in respect of 10% for a period of nine
years.
11. The interest on the aforesaid fixed deposits shall be paid
monthly by automatic credit of interest in the respective Savings
Account of the beneficiary.
12. Withdrawal from the aforesaid account shall be permitted to
the beneficiary after due verification and the Bank shall issue
photo Identity Card to the beneficiary to facilitate identity.
13. No cheque book be issued to the beneficiary without the
permission of this Court.
14. The original fixed deposit receipts shall be retained by the
Bank in the safe custody. However, the original Pass Book shall
be given to the beneficiary along with the photocopy of the FDRs.
Upon the expiry of the period of each FDR, the Bank shall
automatically credit the maturity amount in the Savings Account
of the beneficiary.
15. No loan, advance or withdrawal shall be allowed on the said
fixed deposit receipts without the permission of this Court.
16. Half yearly statement of account be filed by the Bank in this
Court.
17. On the request of the beneficiary, Bank shall transfer the
Savings Account to any other branch according to their
convenience.
18. The beneficiary shall furnish all the relevant documents for
opening of the Saving Bank Account and Fixed Deposit Account
to Mr. M.S. Rao, AGM, UCO Bank, Delhi High Court Branch, New
Delhi (Mobile No. 09871129345).
19. The pending application is disposed of.
20. Copy of this judgment be sent to Mr. M.S. Rao, AGM, UCO
Bank, Delhi High Court Branch, New Delhi (Mobile
No.09871129345). Copy of this judgment be sent to respondent
No.3.
J.R. MIDHA, J
MARCH 30, 2012
