Delhi High Court
Charanjeet Singh vs Mahavir Singh And Ors. on 15 May, 2013
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.110 OF 2006
% Reserved on : 5th April,2013
Date of decision : 15th May, 2013
CHARANJEET SINGH .....Appellant
Through Ms. Anju Jain and Mr.Hitesh
Sachal, Advs.
versus
MAHAVIR SINGH AND ORS. ..... Respondents
Through Mr. S.L. Gupta, Mr. Ram
Ashray, and Mr. Vikas
Chandra, Advs. for
respondent no.3
CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the award of the Claims
Tribunal whereby the compensation of Rs.4,80,000/- has been
awarded to him. The appellant seeks the enhancement of the
awarded amount.
2. The accident dated 21st June, 2001 resulted in grievous
injuries to the appellant. The appellant was returning from
Hemkunt Sahib and Badrinath in Maruti Van No. DL-6C-E-9749.
When the said vehicle reached near Modipuram Check Post, the
driver lost control and hit against a stationary truck resulting in
grievous injuries to the clavicle bone and multiple fractures on the
left hand and both legs. The appellant was initially taken to Sarvhit
Hospital, Modipuram, Meerut. On 22nd June, 2001, the appellant
was shifted to LNJP Hospital, Delhi where his left arm was
amputated resulting in permanent disability of more than 50%.
The disability certificate Ex.PW-1/10 was issued by LNJP
Hospital. The appellant underwent the following treatment:
(a) On 19th September 2002, the appellant was admitted in
L.N.J.P Hospital and was diagnosed for Crohn's disease [type of
inflammatory bowel disease (IBD) resulting in swelling and
dysfunction of the intestinal tract] and Enterocutaneous Fistula in
RIF(Right Iliac Fossa refers to right-inferior part of the surface of
the human abdomen) [a cutaneous fistula connecting the body
surface and some parts of the intestine] [Fistula is an abnormal
channel from a hollow body cavity to the surface or from one
cavity to another]. He was discharged on 18th November 2002 (Ex.
PW 1/16).
(b) On 4th December 2002, the appellant was again admitted in
L.N.J.P Hospital for Crohn's disease and Enterocutaneous Fistula.
(Ex. PW 1/ 17). He was discharged on 19th December 2002.
(c) On 13th February 2003, the appellant was again admitted in
L.N.J.P Hospital for Ileo colic Crohn's disease with
Enterocutaneous Fistula. He was discharged on 24th February 2003.
3. The Claims Tribunal awarded a sum of Rs.60,000/- towards
loss of leave in lieu of loss of income for 3 months, Rs.20,000/-
towards expenses on attendant and conveyance during treatment,
Rs.5,000 towards special diet, Rs.1,50,000/- towards future
medical expenses including the artificial limb, Rs.20,000/- towards
loss of marital happiness, Rs.50,000/- towards expenses to be
incurred on driver and attendant, Rs.50,000/- towards pain and
suffering, Rs.1,00,000/- towards permanent disability arising out of
the amputation and Rs.25,000/- towards shortening of life span.
The total compensation awarded to Rs.4, 80,000/-.
4. During the pendency of this appeal, the appellant sought
permission to file additional evidence on the ground that the
appellant made a claim for Rs.3,49,000/- before the Claims
Tribunal towards the costs of the electronic artificial limb against
which the amount of Rs.1,50,000/- was awarded by the Claims
Tribunal due to which the appellant could not procure the
electronic artificial limb and the cost of the same has now
increased. Vide order dated 4th May, 2012, the appellant was
permitted to lead the additional evidence to prove the increase in
the cost of electronic artificial limb as well as the requirement of
the electronic artificial limb, payments made to the driver and the
attendant after the accident.
5. The appellant examined five witnesses before this Court. He
himself appeared in the witness box as AW-1 and deposed that the
cost of the artificial limb was initially Rs.3,49,000/- against which
the Claims Tribunal awarded a sum of Rs.1,50,000/- and therefore,
he could not procure the same. The appellant deposed that he
could get reimbursement only upto the extent of Rs.4,500/- from
his employer, Syndicate Bank. The appellant placed on record the
letter dated 30th September, 2011 of Syndicate Bank in this regard.
The appellant also deposed that he employed Satpal as his driver in
1st July 2001 at a salary of Rs.5,000/- per month with Rs.100/-
extra as night charges which was increased from time to time and
at the time of making the statement, he was paying Rs.7,000/- per
month with Rs.100/- extra as night charges. The payments made to
the driver are Mark B-12 to B-23. The appellant also employed
Yashpal as his attendant on 1st July 2001 and he was paying
monthly salary of Rs.2,000/- which had been increased to
Rs.3,100/-. The payments made to the attendant are Mark B-1 to
B-11. The appellant also proved the prescription of LNJP Hospital
towards the need to fit artificial electronic limb as Ex.AW4/1. The
quotation dated 29.3.2012 for electronic artificial limb from Otto
Bock Healthcare India Pvt. Ltd. is Ex.AW4/B.
6. The appellant examined Yashpal Jain, attendant as AW-2
who deposed that he was working with the appellant at a monthly
salary of Rs.2,000/-. He joined the appellant on 1st July, 2001 at a
salary of Rs.2,000/- which was increased from time to time and he
was last drawing salary of Rs.3,100/- per month. The payments
received by the witness are Mark B-1 to B-11.
7. The appellant examined Satpal Singh as AW-3 who deposed
that he joined the appellant in 1st July 2001 as driver on a monthly
salary of Rs.5,000/- per month with Rs.100/- extra as night charges
which was increased from time to time and at the time of making
the statement, he was getting Rs.7,000/- per month with Rs.100/-
extra as night charges. The payments received by the witness are
Mark B-12 to B-23.
8. AW-4 - Rajiv Kumar from Otto Bock Healthcare India Pvt.
Ltd. proved the quotation of myo-electric hand function Prostheist
of Rs.7,20,000/- towards the costs of myo-electric hand function
Prostheist as Ex.AW4/B.
9. Dr. V.K. Gautam, Director/Professor of Orthopedic Surgery
LNJP Hospital deposed that the appellant was having an above
elbow amputation and has advised prosthetic fitting. He deposed
that the artificial device to replace is of two types; a purely
cosmetic one; and a functional/myo-electrical prosthesis which
provides a better function than the cosmetic one. He deposed that
the artificial limb can be fixed even after 15 years of the
amputation.
10. Learned counsel for the appellant has urged the following
grounds at the time of hearing of this appeal:
(i) The cost of the electronic artificial limb i.e. Rs.7,20,000/- be
awarded to the appellant.
(ii) The compensation be awarded towards the loss of amenities
of life and disfiguration.
(iii) The compensation be awarded towards the cost incurred by
the appellant on keeping the driver and the attendant be enhanced.
(iv) The rate of interest be enhanced from 7.5% to 9%.
11. Learned counsel for the appellant submitted that the learned
Tribunal awarded Rs.4,80,000/- to the appellant out of which
Rs.2,50,000/- has been directed to be kept in fixed deposit for a
period of ten years. Learned counsel further submitted that the
appellant had claimed Rs.3, 49,000/- for electronic artificial limb
against which the Claims Tribunal awarded a sum of Rs.1, 50,000/-
only and therefore, the appellant could not procure the same. It is
further submitted that the cost of the said electronic artificial limb
has now increased to Rs.7, 20,000/- and the appellant has proved
the quotation of Otto Bock Healthcare India Pvt. Ltd.
12. The appellant appeared before this Court on 5 th April, 2013
and his condition was seen by the Court. He was without left arm
which was amputated as back as on 22nd June 2001 and he required
electronic artificial limb. The appellant was working as a Manager
with Syndicate Bank but as per the terms of employment, his
entitlement of reimbursement is only upto the extent of Rs.4, 500/-
as deposed by him in the witness box and also by the confirmed by
the Syndicate Bank in the letter dated 30th September, 2011. The
cost of the electronic artificial limb originally was Rs.3, 49,000/-
against which the Claims Tribunal awarded Rs.1,50,000/- and
therefore, the appellant could not procure the electronic artificial
limb. The cost of the electronic artificial limb has now escalated to
Rs.7, 20,000/- as proved by the AW-4 from M/s. Otto Bock
Healthcare India Pvt. Ltd. A sum of Rs.7, 20,000/- is awarded to
the appellant towards the cost of the electronic artificial limb.
13. The appellant is unable to drive any vehicle due to
amputation of the left arm and he employed a driver in July 2001 at
a monthly salary of Rs.5,000/- per month which has now increased
to Rs.7,000/- per month. The appellant also employed an attendant
in July 2001 at a monthly salary of Rs.2, 000/- per month which
has now increased to Rs.3,100/-. The attendant Yashpal Jain and
the driver Satpal Singh appeared in the witness box as AW-2 and
AW-3 respectively and the payments received by them from the
appellant are Mark B-1 to B-11 and Mark B-12 to B-23
respectively. The total salary paid by the appellant to the driver and
to attendant during the period 1st July 2001 to 31st March, 2012 is
Rs.11,51,000/- against which the Claims Tribunal has awarded a
compensation of Rs.50,000/- which is grossly inadequate. The
compensation of Rs.20,000/- awarded by the Claims Tribunal
under the head of attendant and conveyance is treated under the
head of conveyance only. A further sum of Rs. 11,01,000 is
awarded to the appellant towards the salary of AW-2 and AW-3 for
the period 1st July 2001 upto 31st March 2012. The appellant shall
be entitled to total compensation of Rs.11,51,000/- (Rs.11,01,000/-
plus Rs.50,000/- awarded by the Claims Tribunal). With respect to
the future salary of AW-2 and AW-3, no further amount is
warranted as the interest on the aforesaid amount of Rs.11,01,000/-
would be sufficient to meet the future salaries of AW-2 and AW-3.
14. The Claims Tribunal has awarded Rs.50,000/- towards pain
and suffering and Rs.1,00,000/- towards permanent disability.
However, no compensation has been awarded to the appellant
towards loss of amenities of life as well as disfiguration. In
Oriental Insurance Company Ltd. v. V.S. Vijay Kumar Mittal, 2008
ACJ 1300, this Court has held that compensation of Rs.3,00,000/-
has been consistently awarded by the Courts during the period
1985 to 1990 in respect of permanent disability of 50% and above
arising out of the amputation. The relevant finding of this Court is
reproduced hereunder.
"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 : `50,000/-
life and proper marital
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
in profession :`1,00,000/-
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."
15. Following the aforesaid judgment, a sum of Rs.80,000/- is
awarded towards loss of amenities and Rs.25,000/- is awarded
towards disfiguration so that the total non-pecuniary compensation
is Rs.3,00,000/- (Rs.50,000/- towards pain and suffering,
Rs.1,00,000/- towards permanent disability, Rs.80,000/- towards
loss of amenities of life, Rs.25,000/- towards disfiguration and Rs.
25,000 towards shortening of life span, Rs. 20,000/- towards loss
of marital happiness).
16. The Claims Tribunal has awarded interest at the rate of 7.5%
whereas the appropriate rate of interest in terms of the judgments
of the Supreme Court in the case of Municipal Corporation of
Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC
100 and Subulaxmi v. Tamil Nadu State Transport Corporation,
2012 (10) SCALE 617 is 9%. Following the aforesaid judgments,
the rate of interest is enhanced from 7.5% to 9%.
17. The appellant is entitled to total compensation of
Rs.22,26,000/- as per break up given hereunder:
NON-PECUNIARY COMPENSATION
Compensation towards pain and suffering Rs. 50,000/-
Compensation towards permanent disability Rs. 1,00,000/-
Compensation for loss of amenities of life Rs. 80,000/-
Compensation towards shortening of life span Rs. 25,000/-
Compensation towards disfiguration Rs. 25,000/-
Compensation towards loss of marital happiness Rs. 20,000/-
Total non-pecuniary compensation Rs. 3,00,000/-
PECUNIARY COMPENSATION
Loss of leave in lieu of loss of income for three Rs.30,000/-
months
Compensation towards salary of attendant and Rs. 11,51,000
driver for the period 1st July 2001 upto 31st
March 2012
Compensation towards conveyance Rs.20,000/-
Compensation towards special diet Rs.5,000/-
Compensation towards electronic artificial limb Rs.7,20,000/-
Total pecuniary compensation Rs.19,26,000
Total compensation (Non-pecuniary Rs.22,26,000/-
Compensation of Rs.3,00,000/- and pecuniary
compensation of Rs.19,26,000/-)
18. The appeal is allowed and the compensation is to the
appellant is enhanced from Rs. 4,80,000 to Rs. 22,26,000 along
with interest @ 9% per annum. With respect to the compensation
of Rs.7,20,000/- for electronic artificial limb, the appellant shall
not be entitled to any interest because the electronic artificial limb
is yet to be installed. However, if the payment is not deposited
within 30 days, the appellant shall be entitled to interest @ 9% per
annum on Rs.7,20,000/- from the expiry of 30 days till realization.
On the remaining amount of Rs.15,06,000 (Rs.22,26,000-
Rs.7,20,000/-) the appellant shall be entitled to interest @ 9% per
annum from the date of filing of the claim petition till realization.
19. The respondent no. 3 is directed to deposit the enhanced
award amount with Syndicate Bank, Bahadur Shah Zafar Marg,
New Delhi, by means of a cheque drawn in the name of Syndicate
Bank A/c Charanjeet Singh within 30 days. Upon deposit of the
aforesaid amount, Syndicate Bank is directed to release 10% of the
said amount to the appellant by transferring the same to his saving
bank account. The remaining amount be kept in the fixed deposit
in the following manner:
(i) Fixed deposit for Rs.7,20,000/- in the name of Syndicate
Bank, Bahadur Shah Zafar Marg, New Delhi initially for a period
of two years. As and when the appellant gets the electronic
artificial limb installed from Otto Bock Healthcare India Pvt. Ltd.,
the appellant shall write a letter to respondent no.3 confirming that
he has got the artificial limb installed and he shall forward the
original invoice to respondent no.3. The appellant shall thereafter
meet the AGM of respondent no.3 who shall personally see the
electronic artificial limb installed by the petitioner and shall
confirm the same to Syndicate Bank on the original invoice
whereupon Syndicate Bank shall release the payment of
Rs.7,20,000/- to Otto Bock Healthcare India Pvt. Ltd. The interest
on the fixed deposit earned by that time shall be transferred to the
saving bank account of the appellant.
20. In the event of the appellant failing to install the electronic
artificial limb within a period of two years, this amount of
Rs.7,20,000/- along with interest thereon shall be refunded back by
Syndicate Bank to respondent no.3.
21. The remaining amount (enhanced award amount minus 10%
directed to be released and Rs.7, 20,000/- directed to be kept in
fixed deposit) be kept in Fixed Deposit in the name of the appellant
in the following manner:
(i) Fixed deposit in respect of 20% for a period of one year.
(ii) Fixed deposit in respect of 20% for a period of two years.
(iii) Fixed deposit in respect of 20% for a period of three years.
(iv) Fixed deposit in respect of 20% for a period of four years.
(v) Fixed deposit in respect of 20% for a period of five years.
22. The interest on the aforesaid fixed deposits shall be paid
monthly by automatic credit of interest in the Savings Account of
the beneficiary.
23. 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.
24. 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.
25. No loan, advance or withdrawal shall be allowed on the said
fixed deposit receipts without the permission of this Court.
26. Copy of this judgment be sent to the AGM, Syndicate Bank,
Bahadur Shah Zafar Marg, New Delhi.
J.R. MIDHA, J
MAY 15, 2013
