Delhi High Court
Urmil Gulati vs Shiv Kumar & Ors. on 10 May, 2012
Author: G.P. Mittal
$~R-33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:10th May, 2012
+ FAO.No.401/2003
URMIL GULATI
..... Appellant
Through: Mr. Navneet Goyal with
Ms. Suman N. Rawat, Advocates
Versus
SHIV KUMAR & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `1,14,770/-
awarded to the Appellant for having suffered injuries in an
accident which occurred on 18.09.1991.
2. The Appellant suffered head injury a wound on her right eye,
fracture shaft humerus with radial N. Palsy (R), subtrochanteric
fracture (R) fever , fracture pubic ramie(R) side, fracture both
bones (R) leg and multiple wounds. Immediately after the
accident, the Appellant was removed to Dr. Ram Manohar
Lohia (RML) Hospital for want of satisfactory treatment. She
was shifted to Sir Ganga Ram Hospital where she was operated
upon by Dr. K.L. Kalra. Various documents proved on record
(Exs. PW2/1 to PW2/73) would show that she remained
admitted in Government Hospital in Sunder Lal Jain Hospital
and was last operated in Parmarth Mission Hospital by Dr.
K.B. Raj on 09.10.1998. She remained admitted in Parmarth
Mission Hospital from 08.10.1998 to 11.10.1988. It is,
therefore, evident that the Appellant remained under treatment
by and large for a period of seven years after the accident. A
disability certificate was issued by Dr. R.M.L. Hospital on
19.01.1998 (Ex.PW7/1) showing her disability to be 25%,
which is extracted hereunder:-
"Smt. Urmil Gulati aged 50 Years/Female W/o
Shri Ram Sarup Gulati R/o D-21, Satyawati
Colony, Ashok Vihar Ph-III, Delhi-52, has been
examined vide Ortho No.33630/97 dated 1.12.97.
She is an operated case of fracture Neck femur (R)
with operated case of fracture both bone leg (R)
with 1½" shortening of (R) hip and (R) knee with
united fracture shaft Humerus (R) with mild
restriction of movement. Her disability is 25%
(Twenty five) percent and permanent."
3. The compensation of `1,14,770/- awarded under various heads
is tabulated hereunder:-
Sl.No. Compensation under Awarded by the
various heads Claims Tribunal
1. Medical Treatment `45,270/-
2. Disability ` 49,500/-
3. General Damages ` 5,000/-
4. Pain and Sufferings ` 15,000/-
Total ` 1,14,770/-
4. It was proved on record from the Appellant's unchallenged
testimony that she was doing the work of stitching. She was an
Income Tax assessee since the A.Y.1980-81. In the A.Y.
1988-89, 1989-90, 1990-91 and 1991-92, she returned an
Income Tax of `18,300/-, 18,240/-, 18500/- and 23,100/-
respectively. She deposed that on account of the injuries
suffered by her, she could not continue with the work of
stitching.
5. It is urged by the learned counsel for the Appellant that no
compensation has been awarded for the loss of income, the
compensation awarded towards permanent disability/loss of
earning capacity is on the lower side; compensation towards
pain and suffering is on the lower side, no compensation has
been awarded towards loss of amenities in life.
LOSS OF EARNING CAPACITY:
6. During her examination, the Appellant deposed that after the
accident, she was unable to see from right eye. Although, the
Appellant proved hosts of documents with regard to her
treatment, no document was produced to show that the
Appellant suffered any loss of vision on account of the injuries
suffered in the accident.
7. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court brought out the distinction between permanent
disability and functional disability resulting in the loss of
earning capacity. It was laid down that the compensation on
account of loss of earning capacity has to be granted in
accordance to the nature of job undertaken by the victim of
motor accident. From the disability certificate, it is apparent
that on account of the injuries suffered in the accident, she
suffered from restriction of movements on account of fracture
of knee and of the lower limb with right leg shortening of 1½".
No expert evidence was produced by the Appellant to prove the
loss of earning capacity. The Claims Tribunal, however, took
the loss of earning capacity to be 25% as per the disability
certificate. Considering that the Appellant was doing the
stitching work, I do not find any material to disagree with the
view taken by the Claims Tribunal. The Appellant is,
therefore, entitled to a compensation of 25% on her loss of
income of `23,100/- which would come to `75,075/- (`23,100/-
X 13 X 25%).
LOSS OF INCOME:
8. The Appellant suffered from serious injuries and must not have
been able to attend to the work for about a year in all including
the later period when she was treated in Sunder Lal Jain
Hospital and underwent surgeries in Parmarth Mission
Hospital. I would thus award a compensation of `23,100/-
towards loss of income.
PAIN AND SUFFERING:
9. It is difficult to measure the pain and suffering in terms of
money which has been suffered by the claimant on account of
serious injuries caused to him in a motor accident. Since the
compensation is required to be paid for pain and suffering an
attempt must be made to award compensation which may have
some objective relation with the pain and suffering underwent
by the victim of a motor accident. For this purpose, the Claims
Tribunal and the Courts normally consider the nature of injury;
the parts of the body where the injuries were sustained;
surgeries (if any) underwent by the victim; confinement in the
hospital and the duration of the treatment. As I have already
discussed earlier, the nature of injuries, the surgeries
underwent, the period of treatment, the compensation of
`15,000/- even in the year 1991 was totally inadequate. The
same is enhanced to `25,000/-.
LOSS OF AMENITIES:
10. The disability certificate and the Appellant's testimony would
show that the she would not only be handicapped in her
professional duties, but she would face difficulty in day to day
activities of life. She has to live throughout the life without her
left leg, she cannot run on account restriction in movement, she
would sit with difficulty. Considering that this accident took
place in the year 1991, I would award a sum of `25,000/-
towards loss of amenities in life.
11. The compensation awarded under other heads is not disputed.
12. Thus, there is a total enhancement of `1,33,175/- which shall
carry interest @ 9% per annum from the date of the filing of
the Petition till its deposit.
13. The Respondent No.3 Oriental Insurance Company Ltd. is
directed to deposit the enhanced amount of `1,33,175/- along
with interest in the name of the Appellant in the UCO Bank,
Delhi High Court Branch within six weeks.
14. This accident took place in the year 1991 and the Appellant
must be now 68 years. In the circumstances, the entire amount
of compensation along with interest shall be disbursed to her
immediately on deposit.
15. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 10, 2012
pst
