Delhi High Court
Anuj Sharma vs Ahsahul Haq & Ors. on 16 April, 2014
Author: Suresh Kait
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16th April, 2014
+ REV. PET. NO. 45/2012
ANUJ SHARMA ..... Appellant
Represented by: Mr. J.C. Mahendroo, Adv.
Versus
AHSAHUL HAQ & ORS. ..... Respondents
Represented by: Mr. Soumik Mazumdar, Adv. /
Proxy Counsel for Mr. Pankaj Seth, Adv. for R3
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
CM No.979/2012 (for delay)
In view of the averments made in the application, the delay of 45 days
in filing the instant appeal is condoned.
The application stands disposed of.
REV. PET. NO. 45/2012
1. Vide the present petition, the petitioner seeks setting aside of the order
dated 30.09.2011 passed by this Court in MAC. APP. No.143/2006 and
allow the said appeal.
2. It is hereby important to note that the petitioner previously filed an
appeal for enhancement vide MAC. APP. No. 143/2006, the same was
dismissed vide order dated 30.09.2011 in absence of counsel for the
appellant. Hence, the present petition.
3. Notice in the instant petition was issued vide order dated 19.07.2012.
4. Mr.J.C. Mahendroo, learned Counsel appearing on behalf of the
petitioner has drawn the attention of this Court to the order dated
30.09.2011, wherein in Para 6 it was recorded as under:
"As per the evidence on record, the appellant was getting gross
annual salary of Rs.3,29,280/- from his private job with a
company. After making reasonable deductions towards
transportation, lunch coupons, PF etc., the monthly income of the
appellant was assessed as Rs.24,050/-. Since the appellant was in
a private job, the Tribunal has rightly taken this Rs.24,050/- to be
actual monthly income of the appellant. Since he was on leave for
8 months, the Tribunal awarded Rs.2,02,400/- on account of loss
of salary for eight months. Though, the appellant could not
produce permanent disability certificate from any government
hospital, the Tribunal scanned through the evidence on record
and recorded a finding of fact that even if the disability was taken
to be 60%, the functional disability which would affect the
earning capacity of the appellant was not to be more than 10%.
Keeping in view the age of the appellant as 25 years, he rightly
applied the multiplier of 18 and thus arrived at a figure of
Rs.5,19,480/- as the loss of earning capacity of the appellant due
to functional disability of 10%. This was arrived at after
discussing the nature of job of the appellant, his income, the
permissible deductions and also future prospects and by applying
appropriate multiplier of 18. I do not see any infirmity or
illegality in this method applied by the Tribunal in arriving at
this figure of Rs.5,19,480/-. In addition to this, the learned
Tribunal also awarded compensation to the appellant towards
discomforts of permanent disability as Rs.1,00,000/-.
Compensation of Rs.20,000/- each towards conveyance and
special diet also appears to be just and reasonable in the given
facts and circumstances of this case."
5. Ld. Counsel further invites the attention of this Court to the disability
certificate dated 12.12.2005 issued from All India Institute of Medical
Sciences, New Delhi, wherein it is stated as under:
"This is to certify that Shri Anuj Sharma.... Son of Shri Late
G.P. Sharma.....27 Years Old, Male PMR OPD NO.
13147/2005.....is a case of Post traumatic brain injury sequelae
with left side hemiparesis with speech impairment.....He is
physically handicapped and has Sixty Percent
(60%).....permanent physical disability impairment in relating to
his whole body.....This condition is not likely to change.
Reassessment not recommended"
6. Ld. Counsel submits that the nature and extent of the disability
suffered by the petitioner/injured was assessed by the Board of Doctors of
All India Institute of Medical Sciences, New Delhi, and certificate to this
effect was issued after the passing of the award by the Ld. Tribunal. Thus,
the petitioner failed to produce and prove the same before the Tribunal.
7. Ld. Counsel submits that as per the disability certificate, the disability
suffered by the petitioner / injured is permanent in nature, therefore, he
becomes 100% physically handicapped in respect of his whole body. This
fact has been overlooked by this Court while passing the order dated
30.09.2011.
8. Ld. Counsel further submits that petitioner was 25 years of age on the
date of accident. He was working as an Executive (International Sales) with
FCS, Software Solutions Limited and was earning Rs.30,000/- per month.
Accordingly, the Ld. Tribunal after deducting the allowances assessed his
income as Rs.24,050/- per month.
9. Mr. Mahendroo further submits that the petitioner was terminated
from the services due to the disability, in view of Clause 9 of the
appointment letter dated 18.05.2001.
10. Ld. Counsel further submits that the effect of the disability has been
narrated in Chapter 18 of Stroke, Susan B. O‟Sullivan, PT, EdD. At page
719 of the same, it is written that weakness (paresis) is found in 80 to 90 per
cent of all patients after stroke and is a major factor in disability. Patients
are unable to generate the force necessary for initiating and controlling
movement. The degree of weakness is related to the location and size of the
brain injury and varies from a complete inability to achieve visible
contraction to measurable impairments in force production. „........About
20% of individuals with MCA strokes fail to regain any functional use of the
affected UE.‟ „........Mild weakness also occurs on the ipsilateral "supposedly
normal" side. This can be explained by the fact that only 70% to 90% of the
corticospinal fibers cross in the medulla to the contralateral side. „........Once
in the spinal cord some of these fibres cross while the rest remained
uncrossed, thereby explaining bilateral weakness.‟ „........Observed muscle
weakness is also associated with number of changes in both the muscles and
the motor unit. Changes occur in muscle composition, including atrophy of
muscle fibres.
11. It is further stated under the head of "Alterations in Tone" that
spasticity (hypertonicity) emerges in about 90% of cases and occurs on the
side of the body opposite lesion.
12. Spasticity is often strong in the pelvis retractors, hip adductors and
internal rotators, hip and knee extensors, plantarflexors and supinators and
toe flexors. Spasticity results in tight (stiff) muscles that restrict volitional
movement. Posturing of the limbs (e.g., a tight fisted hand with the elbow
bent and held tightly against the chest or a stiff extended knee with a
plantraflexed foot) is common with moderate to serve spasticity. Spastic
posturing can lead to the development of painful spasms (similar to muscle
cramping), degenerative changes and fixed contractures, .........‟. „Thus the
patients with stroke may lack the ability to adjust and stabilize proximal
limbs and trunk appropriately during movement with resulting postures
abnormalities, balance impairments and increased risk for falls.
13. It is further written under the head of "Abnormal Surgery Patters"
that the patient is unable to perform an isolated movement of a limb segment
without producing movements in the remainder of the limb. For example,
efforts to bend elbow also result in shoulder flexion.‟ „........The patient is
severely limited in the ability to adapt movements to varying task or
environmental demands.‟ „........Obligatory synergies are often incompatible
with normal activities of daily living and functional mobility skills (FMS).
For example, the patient with a strong LE extensor synergy will have
difficulty in walking owing to foot plantarflexion and inversion when the hip
and knee are extended.‟
14. It is further written under the head "Altered Coordination" that the
resulting problems with timing and sequencing of muscles can significantly
impair function and limit adaptability to changing task and environmental
demands.
15. Under the head "Postural Control and Balance", it is noted that the
„balance is disturbed following stroke with impairments in steadiness,
symmetry, and dynamic stability common. Problems may exist when
reacting to a destabilizing external force (reactive postural control) or during
self-initiated movements (anticipatory postural control). Thus, the patient
may be unable to maintain balance in sitting or standing or to move in a
weight bearing posture without loss of balance........Patients with stoke
typically demonstrate asymmetry with most of the weight in sitting or
standing shifted towards the stronger side. They also demonstrate increased
postural sway in standing (a finding characteristic of the elderly in general).
Delays in the onset of motor activity, abnormal timing and sequencing of
muscle activity, and abnormal co-contraction result in disorganization of
postural synergies........‟
16. Under the head "Speech, Language and Swallowing", it is written
that „Patients with lesions involving the cortex of the dominant hemisphere
(typically the left hemisphere) demonstrate speech and language
impairments ‟. Aphasia has been estimated to occur in 30 to 36 percent of
all patients with stroke........Auditory comprehension is impaired. ........Flow
of speech is slow and hesitant........
17. Under the head "Perception and Cognition", it is noted that the
Cognitive deficits are present with lesions involving the cortex and include
impairments in alertness, attention, orientation, memory, or executive
functions........Preservation is the continued repetition of words, thoughts, or
acts not related to current context.........
18. Under the head "Hemispheric Behavioral Differences", it is noted
that the Individuals with right hemisphere damage (left hemiplegia), on the
other hand, demonstrate difficulty in spatial-perceptual tasks and in grasping
the whole idea of a task or activity. They are frequently described as quick
and impulsive. They tend to overestimate their abilities while acting
unaware of their deficits. Safety is therefore a far greater issue with patients
with left hemiplegia, where poor judgment is common........
19. Mr.Mahendroo, learned counsel further submits that PW1 testified
that after the accident his reading power is not normal; that it takes longer
time for him to read and understand any given material; that his speaking
power has been adversely effected and is unable to convey his feelings to
others or convince others about his feelings or thoughts. PW1 also testified
that due to the injuries sustained in the accident, the motor movement of his
left hand and left leg has been drastically weakened. He has further testified
that since he was unable to execute his work in his office, therefore, with
effect from 01.08.2004, the official of the company on taking a sympathetic
view had allowed him to continue in service on half pay pursuant to issuance
of new appointment letter. Copy of which is Ex.PW3/C.
20. Learned counsel further submits that after the accident, the petitioner
had resumed his work with the same establishment on half pay, i.e.,
Rs.15,000/- per month. It is further submitted that he continued on half pay
for six months and thereafter he was terminated from the services as he is
unable to do any mental or physical work.
21. Learned counsel further submits that towards non-pecuniary losses,
such as pain and suffering Rs.75,000/-, for special diet/conveyance Rs.
40,000/- and for loss of marriage prospects Rs.50,000/- have been awarded
by the learned Tribunal, which are on a very lower side.
22. On the other hand, Mr. Shoumik Mazumdar, learned counsel
appearing on behalf of the respondent No.3/Insurance Company submits that
the petitioner continued with the same establishment and on the same post,
though on half pay, therefore, the learned Tribunal has granted sufficient
compensation.
23. As far as the disability is concerned, the learned counsels submits that
this fact has not been proved before the learned Tribunal, therefore, while
granting compensation, the learned Tribunal has rightly not taken into
consideration the certificate dated 12.12.2005.
24. On the issue of non-pecuniary losses, the learned counsel submits that
keeping in view the facts and circumstances of the present case, the learned
Tribunal has awarded the sufficient compensation on this count.
25. I have heard the learned counsel for the parties and have perused the
record.
26. During cross-examination of PW1, the learned Tribunal made an
observation that although witness clearly understanding the questions put to
him, however, finding difficult to speak without stressing on almost each
word, which is flowing from his mouth and he seems to put too much
pressure on expressing or answering the queries. He is not very quick in
responding to the questions. He has testified that the injuries have resulted
in memory loss.
27. The medical condition of the petitioner was further explained by
PW4, Dr. Amitabh Goel from M/s. Metro Multispeciality Hospital, Noida,
U.P., who categorically testified that due to the brain injuries, the speaking
power of the petitioner has been irreparably affected and he cannot speak
fluently. The said doctor regularly treated the petitioner right from the
beginning.
28. It is important to note that to the court question, he explained that in
Medical Jurisprudence, the case of the petitioner is that of left hemiparetic,
which is described as a condition where the patient is stable but physically
disabled. On further court question, Dr. Amitabh Goel firmly stated that
patients suffering from the kinds of injuries as in this case, would show
improvement, if any, within a span of 2-3 years from the date of suffering
from an injury, thereafter, the condition becomes stable and he categorically
stated that it was unlikely that the petitioner would regain his normal speech
power as it might have been prior to the accident. That apart, corroborating
the evidence of the petitioner, Dr. Goel has testified that the patient is unable
to use his left hand for any purpose as he cannot move his fingers. In this
regard too, he categorically testified that even regular physiotherapy is not
helpful to improve the motor movement. However, he advised that the
patient should be treated by an occupational therapist, which would help him
in regaining his motor movement so far as the left hand is concerned.
29. In para 21 of the impugned award, the educational qualifications of
the petitioner have been recorded as under:-
"21. It may be indicated that claimant is B.Com. GNIIT
qualified in the field of E.Com, Com.D.Com. and Quality
Management. He was in the first year of his MBA when he
met with this accident and it is in the evidence that he has not
been able to complete the same."
30. The learned Tribunal further recorded that:-
"21..........To my mind, the loss of earning capacity has to be
worked out as per the earnings of the claimant at the time of
accident and if the disability is taken @ 100%, it works out
tobe 24050x12x8 =Rs.51,94,800/-. It is in evidence that the
claimant had been cleared for appointment as a Program
Analyst at Silicon Valley Systeck, 15890, Oakland Road, B-
206, San-Jose, CA-95131, California, and was waiting for
clearance for H1B1 visa from US Embassy. He was likely to
join his duties abroad and if that had had happened, he would
have had a fair chance of getting better emoluments and other
perks shaping his future in a better sense of the world.
Therefore, considering that there is a partial loss of speech
power with complete hemiparetic condition of the left hand
coupled with the loss of opportunity, I find that it would be just
and reasonable to assess the loss of earning capacity to be
10%, which comes to Rs.5,19,480/-. This, to my mind, is a
modest figure in the absence of a permanent disability
certificate coupled with the fact that the earnings of the
claimant has been taken at current rate basis without any eye
on the prospects of future increase in the income of the
claimant. I find it just and reasonable to award him the
same."
31. Mr.Mahindroo, learned counsel for the petitioner submits that the
learned Tribunal has not added any amount in the actual income of the
petitioner towards future prospects while calculating the compensation.
I note, under the head „Permanent Disability‟, in para-22, the learned
Tribunal recorded as under:-
"22. The permanent impairment of use of left hand and
permanent but partial impairment of loss of speech power has
certainly affected the loss of enjoyment of amenities of life of
the claimant. Claimant, who was holding a driving licence at
the time of accident, now finds him in a position where he can
neither drive a two-wheeler nor a motor car. The loss suffered
by him in his prime youth undoubtedly, has a shattering effect,
where he has seen the entire future crumbling before him."
32. I further note, under the head „Loss of Prospects of Marriage, in para-
24, the learned Tribunal recorded as under:-
"24. I may indicate that on Court question, Dr.Amitabh Goel
was unable to spell out if there was any loss of sexual
prowesses in the case of the claimant. Nothing has been said
by the claimant in this regard. At the same time, having
regard to his physical disabilities, it is fair to assume that his
matrimonial prospects are greatly hampered and he would
find it extremely difficult to find a bride, which he might have
ever thought about just prior to the accident."
33. On perusal of the disability certificate dated 12.12.2005, it is
specifically recorded that the petitioner is a case of post traumatic brain
injury sequelae with left side hemiparesis with speech impairment. He is
physically handicapped and has 60% permanent physical impairment in
relation to his whole body.
34. I note, it is specifically stated that the condition of the patient is not
likely to change and reassessment not recommended.
35. Keeping in view the nature of injuries, the surgeries undergone and
the condition of the petitioner that he is unable to do any mental or physical
work.
36. Moreover, it is pertinent to mention here that during the arguments,
the petitioner was personally present in Court alongwith his elder sister,
namely, Ms.Deepshikha. This Court interacted with the petitioner.
37. On seeing the petitioner and after interacting with him, I have
observed that the petitioner is unable to speak properly, walk properly and
even he is not able to stand properly. Though he understands the
instructions, but as deposed by Dr.Amitabh Goel (PW4), he is certainly not
able to earn his livelihood.
38. As per the medical condition of the petitioner, he is unfit for marriage
purposes. It is stated by learned counsel of the petitioner before this Court
that petitioner is 34 years of age and still unmarried.
39. It is important to note the family details of the petitioner that his father
is pre-deceased and his mother is an old and ailing lady, who has undergone
couple of surgeries and is a chronic patient of kidney. Thus, his elder sister
is looking after him apart her family and teaching job.
40. As stated that the petitioner has not received even a single penny on
account of mediclaim because after seeing his physical condition, no
company has come forward to insure him either under general insurance or
health insurance or under any mediclaim policy.
41. As per the disability certificate dated 12.12.2005, the permanent
physical impairment in relation to whole body of the petitioner has been
considered as 60%, however, keeping in mind the facts noted above, I am of
the considered opinion that he has become 100% disabled as he is unable to
do any work either mentally or physically. Therefore, the functional
disability is assessed at 100%.
42. The petitioner has undergone surgeries, visited hospitals for a number
of time, spent huge amount towards conveyance. He will continue to
depend upon others even for conveyance. At the time of the accident, the
petitioner was having driving licence to drive two-wheelers and four-
wheelers, due to the accident, he is not able to drive any vehicle. Thus, he
would spend heavy amount for his movement for taking treatment or
physiotherapy. As on date, he is 34 years of age. In such eventuality, I am
of the opinion that his life may be more miserable and requiring financial,
medical, physical and emotional support from others.
43. He is a highly qualified person and has become permanently disabled
due to the injuries received in the accident in question, however, the learned
Tribunal has not added any amount in his actual income towards future
prospects.
44. Therefore, keeping in view the age of the petitioner, i.e., 25 years at
the time of the accident and as per the settled law in the case of Rajesh and
Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563, the petitioner is
entitled for addition of 50% in his actual income towards future prospects.
45. It is ordered accordingly.
46. I note, the compensation granted by the learned Tribunal towards pain
and suffering Rs.75,000/-, for special diet/conveyance Rs.40,000/- and for
loss of marriage prospects Rs.50,000/- are on a very lower side. Moreover,
no amount has been granted for physical disfigurement, for loss of amenities
of life, for loss of expectation of life, for inconvenience, hardship,
discomfort, disappointment, frustration and mental stress in life and for
damages for mental and physical shock, agony, already suffered or likely to
be suffered in future.
47. Keeping in view the evidence on record, physical and medical
condition of the petitioner, I award Rs.2,00,000/- towards pain and suffering,
Rs.1,00,000/- towards special diet/conveyance, Rs.2,00,000/- for loss of
marriage prospects and Rs.5,00,000/-, i.e., Rs.1,00,000/- each is granted on
account of physical disfigurement, loss of amenities of life, for loss of
expectation of life, for inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life and for damages for mental and physical
shock, agony, already suffered or likely to be suffered in future.
48. Accordingly, the compensation amount comes as under:
Sl. Heads of Compensation Compensation
No. Compensation granted by ld. granted by this
Tribunal Court
(i) Reimbursement of Medical Rs.4,50,000/- Rs.4,50,000/-
Expenses
(ii) Pain & Suffering Rs. 75,000/- Rs.2,00,000/-
(iii) Loss of Salary /Leave Rs.2,02,400/- Rs.2,02,400/-
(iv) Loss of Earning Capacity Rs.5,19,480/- Rs.77,92,200/-
(v) Permanent Disability Rs.1,00,000/- Nil.
(vi) Special Diet/ Conveyance Rs. 40,000/- Rs.1,00,000/-
(vii) Loss of Marriage Prospects Rs. 50,000/- Rs.2,00,000/-
(viii) For physical disfigurement Nil Rs.1,00,000/-
(ix) Loss of amenities of life, Nil Rs.1,00,000/-
(x) Loss of expectation of life Nil Rs.1,00,000/-
(xi) For inconvenience, Nil Rs.1,00,000/-
hardship, discomfort,
disappointment, frustration
and mental stress in life
(xii) For damages for mental Nil Rs.1,00,000/-
and physical shock, agony,
already suffered or likely to
be suffered in future
TOTAL Rs.14,36,880/- Rs.94,44,600/-
Accordingly, the total compensation amount is assessed at
Rs.94,44,600/-.
49. Resultantly, the enhanced compensation amount comes to
Rs.80,07,720/- (Rs.94,44,600/- - Rs.14,36,880/-).
50. The enhanced compensation amount shall carry interest @ 6% per
annum from the date of filing of the claim petition till realization of the
amount.
51. In view of the above discussion, the order dated 30.09.2011
dismissing the MAC. APP. No.143/2006 is recalled and consequently the
said appeal is allowed.
52. Accordingly, the respondent No.3/Insurance Company is directed to
deposit the enhanced compensation amount with upto date interest accrued
thereon in the Saving Bank Account of the petitioner bearing
No.602310100019407 maintained with Bank of India, B-1, Community
Center, Janakpuri, New Delhi, within a period of six weeks from today,
failing which, claimant shall be entitled for penal interest @ 12% per annum
on account of delayed payment.
53. On deposit, the Branch Manager of the aforesaid Bank is directed to
release 25% of the deposited amount in favour of the petitioner though his
Saving Bank Account, noted above. Balance 75% of the deposited amount
shall be invested in form of FDR initially for a period of five years to be
renewed automatically, with a direction to disburse the monthly interest
accrued thereon in favour of the petitioner through his aforesaid account.
54. I hereby make it clear that in case any necessity would arise, the
petitioner shall be at liberty to withdraw any portion of the amount to be
deposited in the FDR after obtaining necessary orders from this Court.
55. In view of the above, the instant petition is allowed on above terms.
SURESH KAIT, J.
APRIL 16, 2014
jg/sb
