Delhi High Court
Rahul Bedi vs Kanwar Pal & Ors on 10 September, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th September, 2012
+ MAC APP. 305/2004
RAHUL BEDI ..... Appellant
Through: Mr. Adv.
versus
KANWAR PAL & ORS ....... Respondents
Through: Mr. Pankaj Seth, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of `1,27,000/- awarded
in favour of the Appellant for having suffered injuries in a motor vehicle
accident which occurred on 09.10.1994.
2. In the absence of any Appeal by the driver, owner or the Insurance
Company the finding on negligence has attained finality.
3. On account of the accident, the Appellant suffered fracture mandible,
there was also loss of flesh from the face and jaw. He remained admitted
in Holy Family Hospital, New Delhi from 09.10.1994 to 22.10.1994. The
Appellant examined PW-1 Dr. Manohar Lal Sharma who testified that the
Appellant had suffered 100% cosmetic disability, although, the same may
not be functional disability. He testified that the Appellant's lip muscles
had been damaged and there is partial paralysis of tongue. The Appellant
therefore would have some difficulty in speaking fluently.
4. The Appellant was aged only 5 years at the time of the accident. The
Claims Tribunal took 40% disability with respect to his body and
awarded overall compensation of `1,27,000/- which is tabulated
hereunder:-
Sl. Compensation under various heads Awarded by
the Claims
No. Tribunal
1. Pain and Suffering `5,000/-
2. Conveyance and Special Diet ` 5,000/-
3. Medicines ` 27,000/-
4. Loss of Income due to Injuries @ `15,000/- p.a. ` 90,000/-
Total ` 1,27,000/-
5. The following contentions are raised on behalf of the Appellant:-
(i) The Claims Tribunal erred in awarding compensation on notional
income of `15,000/-, particularly, when the Second Schedule was
not even in the Statute at the time of the accident.
(ii) The Appellant would have to incur expenditure of `10 lacs on
cosmetic surgery as stated by PW-1. No compensation for the
same was awarded.
(iii) The compensation awarded towards loss of amenities and
disfigurement and towards pain and suffering is on the lower side.
6. PW-1's testimony that, apart from disfigurement of the Appellant's face,
he would have difficulty in speaking fluently and clearly, was not
challenged in cross-examination. The Appellant was a small child of 5
years at the time of accident and now he is 23 years. He has started
running a shop which sells mobile phones. He should have been awarded
compensation on the basis of minimum wages of a Matriculate instead of
a notional income or an income of a skilled worker with addition of 30%
towards inflation on the basis of judgment of the Supreme Court in
Santosh Devi v. National Insurance Company Ltd. & Ors., 2012 (4)
SCALE 559 and relied by this Court in Rakhi v. Satish Kumar & Ors.
(MAC. APP. 390/2011) decided on 16.07.2012.
7. The loss of earning capacity thus comes to `2,05,545/- (1830/- + 30% x
12 x 18 x 40%) as against `90,000/- awarded by the Claims Tribunal.
8. PW-1 examined by the Appellant during inquiry before the Claims
Tribunal testified that with successive cosmetic surgeries, the Appellant's
face would be partially repaired. Deep scars would still remain on the
face after the surgery. He gave the expenditure to be `10-12 lacs for
cosmetic surgery which would take about three years. By the order of
this Court, the Appellant was ordered to be examined by a Cosmetic
Surgeon from B.L.K. Memorial Hospital, Pusa Road, New Delhi. Dr.
Avtar Singh Bath, Senior Consultant and Head of the Department of
Plastic and Reconstructive Surgery issued a certificate in pursuance of the
order of this Court dated 12.08.2009. According to the said certificate
dated 15.09.2009 the Appellant underwent scars revision and dermafat
(skin and fat) grafting on 01.06.2004 and then on 01.06.2007. The doctor
gave the cost of future treatment to be `2 lacs. Relevant portion of the
certificate is extracted hereunder:-
"......He was treated at Holy Family Hospital, where open
reduction and internal fixation of fracture mandible was performed
and multiple extensive wounds were sutured. Thereafter on 25 Mar
1995 patient underwent removal of wires used for fixation of
fracture mandible. Subsequently on 01 June 2004 patient
underwent Scard Revision and Dermafat (skin and fat) grafting.
Again on 01 Jun 2007 patient had another surgery in the form of
Scars Revision and Augmentation of right side of mandible with
Porex (synthetic material) implant. At present he complains of
deformity of face and multiple wide-scars on right side of face. He
also complains of difficulty in full opening of mouth and chewing
of hard food.
Examination reveals that he has gross atrophy (wasting) of tissues
on right side of face. There are three linear 12 cm long stretched
out (2mm-4mm) scars on right side of face. Clinically facture
mandible has united well with satisfactory occlusion of teeth. Most
of demafat graft has got absorbed but porex implant has taken up
well. Mouth opening is satisfactory. The patient can have
significant improvement by multiple sessions (four) of fat grafting
followed by staged (three procedures) scar revision. Total cost of
treatment will be approximately `2.00 lacs."
9. In the circumstances, the Appellant is entitled to the cost of `2 lacs
towards future treatment as against `10 lacs deposed by PW-1. Dr.
Manohar Lal Sharma.
10. Considering the nature of injuries and the fact that the Appellant was a
small child of five years and had to undergo successive surgeries right
from the date of the accident and shall have to undergo further treatment,
a sum of `5,000/- awarded towards pain and suffering is on the lower
side, the same is raised to `25,000/-.
11. Similarly, no compensation was awarded towards loss of amenities and
disfigurement. Keeping in view that the Appellant would have difficulty
in speaking fluently and there is disfigurement of face, I would award a
sum of `50,000/- towards loss of amenities and disfigurement.
12. The compensation awarded is re-computed as under:-
Sl. Compensation under various Awarded by Awarded
heads the Claims by this
No. Tribunal Court
1. Pain and Suffering `5,000/- `25,000/-
2. Conveyance and Special Diet ` 5,000/- ` 5,000/-
3. Medicines ` 27,000/- ` 27,000/-
4. Loss of Income ` 90,000/- `2,05,545/-
5. Future Treatment -- ` 2,00,000/-
6. Loss of Amenities & Disfigurement -- ` 50,000/-
Total ` 1,27,000/- ` 5,12,545/-
13. The compensation is enhanced by `3,85,545/-. The compensation of
`1,85,545/- shall carry interest @ 7.5% per annum from the date of filing
of the Petition till its deposit with the Claims Tribunal.
14. The compensation of `2,00,000/- awarded towards future treatment shall
carry interest w.e.f. 15.09.2009 as the cost of treatment was given on this
date by Dr. Avtar Singh Bath.
15. Respondent No.3 New India Insurance Company Limited it directed to
deposit the enhanced compensation along with interest with the Claims
Tribunal within six weeks.
16. Out of the enhanced compensation a sum of `1,00,000/- shall be released
in favour of the Appellant immediately. A sum of `2.5 lcas shall be
released to him as and when the Appellant takes admission for derma fat
grafting etc. etc.
17. Rest of the compensation shall be held in fixed deposit for a period of
four years on which the Appellant shall be entitled to quarterly interest.
18. The Appellant shall be entitled to approach the Claims Tribunal for
release of the amount from time to time, which the Claims Tribunal shall
be entitled to decide as per the Appellant's need.
19. The Appeal is allowed in above terms.
20. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 10, 2012
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