Delhi High Court
Dr. Arvind Kumar vs M/S. U.P.S.R.T.C. & Ors. on 8 October, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 8th October, 2012
+ MAC. APP. 1052/2011
DR. ARVIND KUMAR ..... Appellant
Through: Mr. S.N. Parashar, Adv.
versus
M/S. U.P.S.R.T.C. & ORS. .... Respondents
Through Ms. Garima Prashad, Adv. for R-1.
Ms. Manjusha Wadhwa, Adv. for R-4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `10,98,500/- awarded
in favour of the Appellant for having suffered injuries resulting in
permanent disability in respect of the right upper limb to the extent of
40% in a motor vehicle accident which occurred on 08.04.2008.
2. On 08.04.2008 the Appellant who had completed his BDS and was doing
his internship was proceeding on his motorcycle No.DL-7S-AJ-5489
towards D.J. Dental College, Newari Road, Modi Nagar, U.P. He was hit
by a UP State Road Transport Corporation (UPSRTC) but No.UP-15-Y-
9852 which was driven by Respondent No.2 in a rash and negligent
manner. He (the Appellant) fell down and suffered crush injuries on his
right palm, wrist joint, fracture of both bones of right hand, half dorsal of
right hand etc. etc. He was removed to Jeevan Hospital, Modi Nagar,
Ghaziabad and was then shifted to Sir Ganga Ram Hospital, New Delhi.
The Appellant remained admitted in Sir Ganga Ram Hospital from
08.04.2008 to 16.04.2008 and then from 11.06.2008 to 15.06.2008. He
underwent successive surgeries, bone grafting, bone plating of both bones
and finger flaps coverage was done. The Appellant was again admitted in
Medcity Hospital, Gurgaon for skin grafting on 18.02.2011. The Claims
Tribunal dealt with the gravity of injury and the disability and awarded
compensation in Para 18 of the judgment which is extracted hereunder:-
"18. I have gone through the material on record. The discharge
summary issued by Sir Ganga Ram Hospital shows that the
petitioner suffered crush avulsion injury in right hand and distal
forearm with fracture both bone right forearm and he was
admitted on 08.04.2008 and was discharged on 15.04.2008 and he
was again admitted on 08.05.2008 when external fixator was
removed, debridement of hand and forearm was done. The
disability certificate Ex.P-2 issued by GTB hospital shows that the
petitioner suffered disability of 40% in relation to right hand. The
petitioner is a Dentist and must be requiring the use of both the
hands for treatment of the patients. It cannot be disputed that
profession of petitioner will suffer due to said injury. Dr. Jai Mala
deposed that a Dentist is required to perform root canal of the
teeth, Extraction of teeth, minor surgeries, minor surgical
procedures of teeth, scaling and fracture, fixation of jaw,
apisectomi dentures (fixed and removal). The functional disability
can be taken to be 40%. There is no income proof of the petitioner.
Petitioner was doing internship of BDS at the time of accident. In
the absence of any material on record the income of the petitioner
is assessed to be Rs. 6,000/- per month. Therefore the loss of future
earning due to disability can be calculated by multiplying the
annual income with percentage of disability and with multiplier of
18. The total loss in future earning on account of disability comes
to Rs. M.A.C. Petition No. 1143/10 Page 6/85,18,400/- (Rs.
1,20,000/- x 18 x 0.4). The petitioner was 23 years of age at the
time of accident. Bills are for Rs.4,64,932/-. Keeping in view the
facts and circumstances, I consider the following amount to be the
just compensation to the petitioner:-
1 Compensation towards pain and sufferings Rs.55,000/-
2 Loss of amenities, enjoyment and compensation
for disfiguration Rs.30,000/-
3 Loss of earning capacity due to injuries Rs.5,18,400/-
4 Loss in marriage prospects Rs.30,000/-
5 Expenses towards medical bills Rs.4,64,932/-
Therefore, in my opinion the petitioner is entitled to Rs.
10,98,332/- (rounded off to Rs. 10,98,500/-) which shall be the just
compensation to petitioner."
3. It is urged by the learned counsel for the Appellant that the compensation
of `5,18,400/- awarded towards loss of earning capacity is wholly
inadequate. On account of the injuries suffered, the Appellant
incapacitated to work as a dental surgeon. In any case, no patient would
approach the doctor with such a disability for his treatment. It is thus,
urged that the compensation should have been awarded on 100% loss of
earning capacity.
4. It is further urged that the Appellant was a qualified dental surgeon, aged
23 years and award of compensation on assuming his income to be
`6,000/- per month was on the lower side. It is stated that no
compensation has been awarded towards special diet, conveyance charges
and attendant charges.
5. The trend of the Superior Courts is to award full and fair compensation.
In the case of Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court observed that the object of awarding damages is to make
good the loss suffered as a result of the wrong done as far as money can
do in a fair, reasonable and equitable manner. Paras 5 and 6 of the report
are extracted hereunder:-
"5. The provision of the Motor Vehicles Act, 1988 ('the Act' for
short) makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately
restore the claimant to the position prior to the accident. The
object of awarding damages is to make good the loss suffered as a
result of wrong done as far as money can do so, in a fair,
reasonable and equitable manner. The court or tribunal shall have
to assess the damages objectively and exclude from consideration
any speculation or fancy, though some conjecture with reference to
the nature of disability and its consequences, is inevitable. A
person is not only to be compensated for the physical injury, but
also for the loss which he suffered as a result of such injury. This
means that he is to be compensated for his inability to lead a full
life, his inability to enjoy those normal amenities which he would
have enjoyed but for the injuries, and his inability to earn as much
as he used to earn or could have earned. [See C.K. Subramonia
Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, R.D. Hattangadi v.
Pest Control (India) (P) Ltd., 1995 (1) SCC 551 and Baker v.
Willoughby, 1970 AC 467.
6. In Arvind Kumar Mishra v. New India Assurance Company Limited,
(2010) 10 SCC 254, the Supreme Court dealt with the case of disability of
an engineering student. The Supreme Court observed that while
awarding compensation in personal injury cases, an attempt should be
made to put the injured in the same position as he was as far as money is
concerned. In para 9 of the report, the Supreme Court held as under:
"9. We do not intend to review in detail state of authorities in
relation to assessment of all damages for personal injury. Suffice
it to say that the basis of assessment of all damages for personal
injury is compensation. The whole idea is to put the claimant in
the same position as he was insofar as money can. Perfect
compensation is hardly possible but one has to keep in mind that
the victim has done no wrong; he has suffered at the hands of the
wrongdoer and the court must take care to give him full and fair
compensation for that he had suffered."
7. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka &
Ors., (2009) 6 SCC 1, the Supreme Court emphasized that cases of
serious injuries in motor vehicle accident are worse than the death cases
because the victim and his family suffers throughout life. Para 90 of the
report is extracted hereunder:-
"90. At the same time we often find that a person injured in an
accident leaves his family in greater distress vis-à-vis a family in a
case of death. In the latter case, the initial shock gives way to a
feeling of resignation and acceptance, and in time, compels the
family to move on. The case of an injured and disabled person is,
however, more pitiable and the feeling of hurt, helplessness,
despair and often destitution enures every day. The support that is
needed by a severely handicapped person comes at an enormous
price, physical, financial and emotional, not only on the victim but
even more so on his family and attendants and the stress saps their
energy and destroys their equanimity."
8. In Kavita v. Deepak & Ors., Civil Appeal No.5945/2012 decided on
22.08.2012, the Supreme Court laid down that an attempt should always
be made to award adequate compensation not only for physical injury and
treatment but also for the loss of earning and inability to lead a normal
life and enjoy the amenities, which would have been enjoyed but for the
disability caused due to the accident.
9. As per the disability certificate Ex.P-2, the Appellant suffered permanent
disability in respect of his right hand on account of locomotor impairment
to the extent of 40%. He (the Appellant) examined PW-6 Dr. Jai Mala,
owner of Gupta Nursing Home with whom he was working as an intern at
the time of the accident. She testified as under:-
"I have brought my identity card and certificate of renewal of
registration under the Dentists Act. The copy of the same are
collectively Ex.PW-6/1 (OSR). After completion of BDS, a dentist
mainly work of Root Canal of the teeth and Extraction of teeth,
minor surgeries, minor surgical procedures of teeth, scaling and
facture, fixation of jaw, apisectomi dentures (fixed and removal).
If a Dentist suffered injuries on his/her right working hand, fingers
and palm, he is unable to do surgeries and all dental procedures
and work of Root Canal of the teeth and Extraction of teeth, minor
surgeries, minor surgical procedures of teeth, scaling and fracture,
fixation of jaw, apisectomi dentures (fixed and removal).
After seeing the injuries of doctor, the patient will refuse/hesitate
to take the dental treatment from the said doctor. Even in MDS,
practical is required besides the theoretical part. The petitioners
had worked with me for about three months and I had to remove
him from the job because there was reduction in number of the
patients. The patient were hesitant in getting treatment from the
petitioner. The petitioner was also not able to perform his job
because of injuries. I have been running my clinic for the last 7
months. I am earning near about 30000/- per month. I have done
BDS four years ago. Before starting my clinic, I was doing job and
was earning `15,000/- per month. I was working only in morning
shift."
10. Thus, it may be seen that a Dentist is expected to perform very minute
dental procedure and surgeries. He has, therefore, to be very precise.
PW-6 instead of telling much about the Appellant's physical disability in
performing this procedure testified that a patient would be hesitant in
getting treatment from a Dentist with a disability. No other expert
evidence was produced by the Appellant. In view of this and the
disability certificate Ex.P-2 which shows 40% locomotor impairment in
relation of the Appellant's right hand, I would not interfere with the
Claims Tribunal discretion in assuming the loss of earning capacity only
to the extent of 40%.
11. However, taking Appellant's income as just `6,000/- per month was
highly on the lower side. PW-6 testified that she was earning a sum of
`30,000/- per month. Before starting her clinic she was working on a
salary of `15,000/- per month. This part of PW-6's testimony was not
challenged in cross-examination. Thus, I would assume that the
Appellant would have earned at least `15,000/- per month on joining any
Dental Clinic. The Appellant would be entitled to addition of 30% on the
basis of the judgment of Supreme Court in Santosh Devi v. National
Insurance Company Ltd. & Ors., 2012 (4) SCALE 559. The loss of
earning capacity comes to ` 16,84,800/- (15,000/- + 30% x 12 x 18 x
40%).
12. Keeping in view the fact that the Appellant had to be admitted in hospital
on three occasions though the period of hospitalization was about 12-13
days only, he must have taken at least four months to recover from the
injuries. In the circumstances, I would award him a sum of `10,000/-
each towards conveyance charges and special diet.
13. The Appellant suffered crush injury on his right hand. He would be
unable to attend to his own work till the fracture and crush injury was
completely healed. I would, therefore, award him a sum of `10,000/-
(2,500/- x 4) towards attendant charges for the period of four months.
14. The overall compensation is recomputed as under:-
Sl.No. Compensation under various heads Awarded by this
Court
1. Pain and Suffering `55,000/-
2. Loss of Amenities, Enjoyment and ` 30,000/-
Disfigurement
3. Loss of Earning Capacity ` 16,84,800/-
4. Loss of Marriage Prospects ` 30,000/-
5. Medical Bills ` 4,64,932/-
6. Conveyance Charges ` 10,000/-
7. Special Diet ` 10,000/-
8. Attendant Charges ` 10,000/-
Total ` 22,94,732/-
15. The compensation is thus enhanced from `10,98,500/- to ` 22,94,732/-.
16. The enhanced compensation of `11,96,232/- shall carry interest @ 7.5%
per annum from the date of filing of the petition till its deposit.
17. Respondent No.4 the National Insurance Company Limited is directed to
deposit the enhanced compensation along with interest with the Claims
Tribunal within six weeks.
18. Eighty percent of the enhanced compensation shall be held in fixed
deposit for a period of four years, eight years, twelve years, sixteen years
and twenty years in equal proportion. Rest 20% shall be released on
deposit.
19. The Appeal is allowed in above terms.
20. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
OCTOBER 08, 2012
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