Delhi High Court
Hari Ram vs Pradeep Kumar & Ors on 4 December, 2014
$~A-8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 04.12.2014
+ MAC.APP. 155/2011
HARI RAM ..... Appellant
Through Mr.O.P.Mannie, Advocate.
versus
PRADEEP KUMAR & ORS ..... Respondents
Through Mr.Shoumik Mazumdar, Advocate
for Mr.Pankaj Seth, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present appeal the appellant seeks enhancement of
compensation as per award dated 08.10.2010.
2. The brief facts are that on 14.08.2007 the appellant had gone to
Independence Day celebrations at Butler Memorial Girls Senior Secondary
School, Boulevard Road, Delhi. While he was standing near an iron inner
gate of the School, a bus driven by its driver in a rash and negligent manner
at a high speed came towards the inner gate and forcefully hit the concrete
pillar of the inner gate. As a result of the forceful hit the pillar got badly
damaged and fell down on the right foot of the appellant. The appellant
suffered crush injuries on his foot.
3. The controversy revolves around the compensation awarded. The
Tribunal awarded a total compensation of Rs. 1,20,000/- details of which are
as follows:-
1. Special diet and conveyance Rs.10,000/-
2. Pain & Sufferings Rs.40,000/-
3. Loss of amenities of life Rs.40,000/-
4. Disfigurement Rs. 30,000/-
Total Compensation Rs.1,20,000/-
4. Learned counsel appearing for the appellant has sought enhancement
of compensation on various grounds. He firstly submits that the appellant
remained on leave for 83 days but has not been compensated any amount
whatsoever for the same He admits that the appellant was working in the
Court of District and Sessions Judge and though there was no loss of pay,
however his accumulated leaves were consumed on account of the tortuous
act of the driver of the offending vehicle, which leave he could have utilised
in some other place and hence, he is entitled for compensation for the same.
Learned counsel relies upon Ramveer Singh vs. Rajesh Kumar & Ors.,
2014 ACJ 1090 to contend that loss of opportunity for encashment of leave
at the time of superannuation as the leaves have been exhausted would be a
ground for awarding compensation for loss of leave. He secondly submits
that the appellant had to undergo a prolonged treatment. He suffered 50%
permanent disability of the right lower limb. Despite this no attendant
charges have been granted. He further points out that the a specialised shoe
has to be bought by the appellant as recommended by the doctors at All
India Institute of Medical Science which costs about Rs.80,000/-. No
amount was awarded for the same. The Tribunal has also completely
ignored the future medical expenses that the appellant would have to incur.
No amount was awarded for the same. It is also submitted that the
compensation awarded for non-pecuniary damages is on the lower side.
Further, that no amount has been paid for loss of expectation of life.
5. A perusal of the award shows that the Tribunal noted that the
appellant was working as a Reader in the Court of District and Sessions
Judge and that he continues to work in the same post and in the same salary
and has not suffered any loss in terms of the salary or other benefits. Hence
the Tribunal concluded that though the appellant had remained on medical
leave during the period of recovery but he has not suffered any loss of
income during this period. Hence, no amount was awarded for the leave
taken by the appellant for recovery. Regarding the moulded shoe, the
Tribunal noted that no evidence has been brought on record nor any expert
has been examined on this aspect to show that the appellant requires any
such kind of shoe or that it would cost Rs.80,000/-/. Hence, this payment
was also not granted.
6. As far as compensation for leave taken is concerned, the appellant in
his affidavit by way of evidence as PW-6 states that he was on leave for 57
days. PW-3 Sh.Mahender Singh, UDC Accounts Branch, Tis Hazari, Delhi
has confirmed that he was on a commuted leave for 57 days from
14.08.2007 to 09.10.2007 i.e. he exhausted 114 half pay leave on medical
grounds. Further leave was taken on different periods total of which comes
to 83 days. Issue is as to whether in the light of these facts, mere exhaustion
of paid leave would entitle the appellant to compensation. It may also be
noted that as per PW-4, the net salary of the appellant at the relevant period
was Rs.15,561/- per month.
7. I may look at the legal position. The High Court of Andhra Pradesh
in Rakuditi Venkata Ramanacharyulu vs. Smt. G.Rama and Anr.,
MANU/AP/0660/2010, in para 10 and 11 held as follows:-
"10. As regards the second submission of the learned
Counsel for the appellant that the Tribunal has not awarded
compensation for the leave of 109 days availed by him, I
find force in the submission. The Tribunal observed that no
evidence has been placed by the appellant to show that he
has applied for leave either on loss of full pay or half pay.
This approach of the Tribunal overlooks the fact that even if
the appellant has received full salary during the leave period,
it had obviously resulted in depletion of his earned leave
credit. The leave which he was forced to avail, perhaps,
would have been encashed towards earned leave
encashment, which facility is available to every employee of
the Government or local bodies. For no fault on his part, the
appellant was forced to avail the said leave which the
respondents are liable to compensate. Accordingly, I hold
that the appellant is entitled to the salary of 109 days during
which period he availed his leave.
11. For the above mentioned reasons, the award of the
Tribunal is modified by holding that the appellant is entitled
to a sum of Rs. 60,000/- as compensation under the head
'injury' and salary for 109 days. The compensation awarded
by the Tribunal under the other heads is confirmed. The
enhanced compensation shall carry interest @ 6% per
annum from the date of petition till the date of payment."
8. Reference may also be had to the judgment of this Court in Ashwani
Kumar vs. Oriental Insurance Company Ltd. & Ors., 2014 ACJ 153 in
para 9 and 10 held as follows:-
9. Admittedly, the Second Respondent took leave on account
of his incapacity to attend to his duties because of the injuries
suffered in the accident. He admitted that he was paid the
salary for the leave taken by him. The Second Respondent lost
leave for a period of six months, which he could have availed
for other purposes. Although, the Second Respondent did not
suffer any financial loss but loss of leave which he may be
entitled to encash on year to year basis or at the time of his
superannuation, has to be compensated in terms of money.
10. The Claims Tribunal, therefore, rightly awarded the
compensation for loss of leave at the rate of his salary. The
Claims Tribunal's finding in this regard cannot be faulted.
9. In view of the above judgments, I see merit in the contention of the
learned counsel for the appellant. Accordingly, I award loss of leave for a
period of 57 days which comes to Rs.31,122/-. [15561 x 2 months].
10. Coming to attendant charges and other non-pecuniary damages. The
relevant portion of the affidavit regarding the nature of injuries suffered
reads as follows:-
"4. That in the accident, I sustained the following injuries:-
Amputation of 1st and 2nd toe of right foot,
Crush injury on right foot,
Fracture dislocation of IP joint of great toe,
Deep wound 10 x 6 c.m., exposed tendon on right foot,
Great toe hanging down with tag of skin,
External fixator applied on 14.08.07,
Skin grafting done on 25.09.07
Profusely bleeding
Abrasions and blunt injuries all over body.
5. That I remained admitted in St. Stephen's Hospital from
14.08.07 to 27.08.07. During the period of this admission at St.
Stephen's Hospital my 1st and 2nd toe of right foot was
amputated and external fixator was applied. Wound
exploration and bridgement was done. Photocopy of discharge
slip of St. Stephen's Hospital is Mark "A".
6. That I was again admitted in St. Stephen's Hospital on
24.09.2007 and I was discharged on 03.10.07. During the
period of this admission at St. Stephen's Hospital spilt skin
grafting (SSG) was done on the wounds of my right leg.
Photocopy of discharge slip of St. Stephen's Hospital is Mark
"B".
7. That on 07.05.08 I was again admitted in Dr.Hedgewar
Arogya Sansthan at Karkardooma and I was discharged on
12.05.08. During the period of this admission at Dr. Hedgewar
Arogya Sansthan Treatment of pain and swelling on my left
lower limb was done. Photocopy of discharge slip of
Dr.Hedgewar Arogya Sansthan is Mark "C".
11. There is no cross-examination on this part of the evidence of the
appellant.
12. Similarly the disability certificate of the appellant reads as follows:-
"Amputation through 1st Right with deformity of foot following
crush injuries right foot in relation to his right lower limb and
has 50% permanent physical impairment. He is physically
disabled.
13. In the light of the above, considering the fact that the appellant
continued on medical leave for a period of 57 days, I award attendant
charges to the tune of Rs.15,000/-. In addition, I enhance the compensation
for pain and sufferings from Rs.40,000/- to Rs.75,000/-. I also enhance
compensation for loss of amenities of life and disfigurement to Rs. 75,000/-
each.
14. Coming to the requirement for moulded shoe. As per Ex.PW1/D
which is prescription issued by AIIMS, the appellant would need a moulded
shoe. In his affidavit PW-6 states that the costs of the moulded shoe would
be Rs.80,000/-.
15. Given the nature of injuries suffered by the appellant, in my opinion
compensation of Rs.80,000/- for the moulded shoe is in order. I hence award
a sum of Rs. 80,000/- for the moulded shoe.
16. Total compensation would now be payable as follows:-
1. Special diet and conveyance Rs.10,000/-
2. Pain & Sufferings Rs.75,000/-
3. Loss of amenities of life Rs.75,000/-
4. Disfigurement Rs. 75,000/-
5. Cost of moulded shoe Rs. 80,000/-
6. Loss of leaves Rs.31,122/-
7. Attendant charges Rs.30,000/-
Total Compensation Rs.4,76,122/-
17. The respondent No.4/Insurance Company shall deposit the additional
compensation amount along with interest @ 7.5% p.a. from the date of filing
of the claim petition till deposit in court before the Registrar General of this
court within six weeks. It is however clarified that there will be no pendente
lite interest payable on the sum of Rs.80,000/- awarded for the moulded
shoe. On deposit of the above amount, the Registrar General shall release
the said additional compensation amount excluding Rs. 80,000-/ to the
appellant as per the directions in the award. The sum of Rs.80,000/- will be
released to the appellant on filing a performa invoice before the Registrar
General of this High Court. The sum as shown in the performa invoice
would be released to the appellant by way of a cheque favouring the
supplier/clinic of the said shoe. The appellant will place on record the
invoice after having purchased the shoe. In case the said sum of Rs.80,000/-
is not utilised within one year of deposit, the respondent no.4 shall be
entitled to refund of the same.
18. The appeal stands disposed of.
JAYANT NATH, J
DECEMBER 04, 2014/rb
