Delhi High Court
Georgy Soman vs Mohinder Singh & Ors. on 6 February, 2014
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 6th February, 2014
+ MAC.APP. 429/2006
GEORGY SOMAN ..... Appellant
Represented by: Mr. Puneet Aggarwal, Advocate.
Versus
MOHINDER SINGH & ORS. ..... Respondents
Represented by: Mr. Kamaldeep, Advocate for
Respondent No.3/Insurance
Company.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present appeal, the appellant has assailed the impugned
award dated 18.10.2005, whereby the learned Tribunal has granted
compensation for a sum of Rs.2,95,000/- with interest at the rate of 6%
per annum from the date of filing the claim petition till realization of the
amount.
2. Present appeal has been filed for enhancement of the
compensation amount noted above.
3. Brief facts of the case are that on 09.09.2003 at about 7.30 am, the
appellant/injured was standing near Holy Child School, Tagore Garden,
New Delhi, to board a bus for Azadpur. A bus bearing registration
No.DL-1PB-2518 came there, which used to drop the children of the
school noted above and thereafter used to proceed towards Azadpur.
While the appellant/injured was in process of boarding the said bus, its
driver started moving the same at a high speed and before he could board
the bus, it took left turn and the appellant was hit against a stationary
bus, which was on the left side of the offending vehicle. As a result, he
suffered fracture in his right hand and both right and left pelvis. His
urethra was also ruptured in the accident.
4. Mr. Puneet Aggarwal, ld. Counsel appearing on behalf of the
appellant submitted that the appellant has proved on record the medical
documents Ex.PW2/1 to 18 through PW2, Dr. Dinesh Suman, Consultant
of Mata Chanan Devi Hospital. Vide his discharge slip Ex.PW2/1, it is
proved that he suffered fracture right radius, fracture pelvis, ruptured
urethra and remained admitted in the hospital from 09.09.2003 to
24.10.2003. Thereafter, vide discharge slip Ex.PW2/2, it is proved that
he was again admitted in the hospital on 10.12.2003 and discharged on
28.12.2003. As per discharge slip Ex.PW2/3, he was admitted on
29.12.2003 and discharged on 30.12.2003. Thereafter, as per discharge
slips Ex.PW2/4 to 11, the appellant/injured remained admitted in
hospital on 07.02.2004 (for one day), from 01.03.2004 to 09.03.2004,
from 15.04.2004 to 16.04.2004 and again remained admitted for one day
each on 20.05.2004, 08.07.2004, 19.08.2004, 11.09.2004 and
20.11.2004. Thus, he remained in hospital for 76 days.
5. Ld. Counsel submitted that it is on record that appellant had been
visiting hospital for follow-up treatments after every 15 days in an
Ambulance and his mother used to pay Rs.600/- per visit as ambulance
charges. Accordingly, the appellant had incurred expenses on
conveyance for follow-up treatment.
6. Mr. Aggarwal further submitted that the appellant is entitled to get
compensation for marriage prospects as he has suffered rupture in
urethra, which has caused the impotency. PW2, Dr. Dinesh Suman
deposed that as per general view, in majority of the cases, urethra rupture
can cause again and again a problem in erectile dysfunction (impotency
can occur). In the present case, the appellant has become completely
impotent due to which he could not marry. The said testimony of the
doctor has not been rebutted in any manner by the respondents.
7. Learned counsel has argued that due to the injuries received in the
accident, the appellant has become impotent, due to which he could not
marry till date, therefore, he could not enjoy the pleasure of life of
having wife and children. However, the sum of Rs.25,000/- granted by
the learned Tribunal on account of marriage prospects is on very lower
side.
8. He further submitted that at the time of the accident, the appellant
was a student of Ist year for diploma course of Civil Engineering with
Arya Bhatt Polytechnic, G.T. Karnal Road, but due to the injuries in his
right hand, fracture in pelvis bone and urethra ruptured, he had suffered
loss of one academic year, and thereafter he could not continue his study
as he was unable to sit from 9.00 am to 5.00 pm and to do technical
work. The appellant got admission in Polytechnic in the month of July,
2003 and met with an accident on 09.09.2003, therefore, he could not
attend the classes. Accordingly, he was detained due to shortage of
attendance.
9. Mr. Aggarwal further submitted that the learned Tribunal has
granted compensation on lower side towards all the heads mentioned as
under:-
"1 On account of medical expenses Rs.1,90,000/-
2 On account of conveyance charges Rs. 5,000/-
3 On account of special diet Rs. 10,000/-
4 On account of pain & sufferings,
loss of Amenities of life,
mental shock & agony Rs. 50,000/-
5 On account of loss of
education Rs. 15,000/-
6 On account of marriage
Prospects Rs. 25,000/-"
10. The appellant at the time of the accident, was a young boy of 17
years' and was pursuing first year of diploma in Engineering.
Simultaneously he was doing tuition work and earning Rs.4,000/- per
month. However, while granting compensation, the learned Tribunal has
not considered his earning.
11. He submitted that the injured remained admitted for 76 days in the
hospital and took follow-up treatment for more than one and a half year
and continued to take treatment for remaining life. Pain and torment,
loss of amenities of life and the mental agony will continue for the whole
life of the injured, however, the learned Tribunal has granted only
Rs.50,000/- towards the aforementioned three heads.
12. He further submitted that due to the accident the appellant lost one
academic year of his diploma course, therefore, he could not continue the
said course, which had shattered his dream of life to become an
Engineer. The learned Tribunal has not considered this fact and granted
a sum of Rs.15,000/- for loss of education/annual fee, which he had
deposited at the time of admission. During the academic year, there are
other expenses like conveyance, stationery and day to day expenses etc.
have not been considered by the learned Tribunal while awarding
compensation.
13. Learned counsel also submitted that till date the appellant is taking
treatment for the injuries received in the accident in question, however,
no amount has been granted by the learned Tribunal for the future
treatment.
14. To strengthen his arguments regarding earning capacity of the
appellant, learned counsel has relied upon a case of Chandrashekhar
Madhusudan Vs. Suhas Shankar Shirke, 1982 ACJ 491, wherein it is
observed that the appellant is certainly not a normal healthy human
being. His prospects for employment market cannot be compared with
those of another person of his age who does not suffer from similar
physical disability. All this is likely to prejudice the appellant's
advancement in his chance of getting job.
15. On the other hand, learned counsel appearing on behalf of the
respondent No.3/Insurance Company submitted that the appellant/injured
had not received permanent disability in the accident in question,
therefore, there is no loss of earning capacity in future. Moreover, the
appellant failed to produce any proof regarding his earning, even, no
evidence thereto has been examined.
16. He further submitted that the accident had taken place on
09.09.2003. He lost one academic year and whatever amount was spent
in that year, the learned Tribunal has granted compensation accordingly.
Since he has not produced any proof regarding special diet, therefore, the
learned Tribunal has not granted any compensation towards the same in
favour of the appellant. He submitted that due to rupture in urethra, he
became impotent, therefore, the learned Tribunal had granted sufficient
amount towards marriage prospects.
17. I have heard, Ld. Counsels for the parties.
18. It is important to note that the appellant could not produce any
document / proof regarding the income. Therefore, Ld. Tribunal has
rightly not considered the income of the injured while awarding
compensation. Accordingly, I confirm the same.
19. It is on record that the appellant remained in hospital for 76 days
in all. The family used to visit him in hospital and thereafter for more
than one and a half year, he continued to go to the hospital for follow-up
treatment. Thus, he might have spent a huge amount on conveyance
charges, however, the learned Tribunal has granted only Rs.5,000/-
towards the same, which is also on very lower side.
20. As noted above, appellant/injured received injuries in the accident.
He remained hospitalized for substantial time and till date he continues
to take follow-up treatment, but the learned Tribunal has not granted any
amount towards attendant charges.
21. Admittedly, the appellant failed to produce any proof regarding
charges paid to the attendant, however, his parents and family had taken
care of him, even in that eventuality also, the learned Tribunal ought to
have granted appropriate amount towards attendant charges.
22. In case bearing MAC. APP. No. 215/2009 titled as 'Azad Vs.
Barun Brahamachari & Ors.' decided by this Court on 25.03.2011,
wherein, it is observed that the injured is entitled to pecuniary and non-
pecuniary damages as well. The pecuniary or special damages, generally
include the expenses incurred by the claimants on his treatment, special
diet, conveyance, cost of nursing/attending, loss of income, loss of
earning capacity and other material loss, which may require any special
treatment or aid to the insured for the rest of his life. The general
damages or the non-pecuniary loss include the compensation for mental
or physical shock, pain, suffering, loss of amenities of life, disfiguration,
loss of marriage prospects, loss of expected or earning of life,
inconvenience, hardship, disappointment, frustration, mental stress,
dejectment and unhappiness in future life, etc.
23. In case of Raj Kumar Vs. Ajay Kumar & Anr., 2011 1 SCC 343,
the Supreme Court has laid down the general principles for assessing the
compensation in injury case. A person has not only to be compensated
for the physical injuries but also for the loss which he has 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.
24. It is true that no amount of compensation can restore the physical
frame of the appellant. Therefore, it has been said by courts that
whenever any amount is determined as the compensation payable to an
injured for the injuries suffered in an accident, the object is to
compensate such injured so far as money can compensate because it is
impossible to equate the money with the human sufferings or personal
deprivations. Money cannot renew a broken and shattered physical
frame. It is very natural whenever a Tribunal or a Court is required to
fix the amount of compensation in cases of accident, it involves some
guesswork, some hypothetical consideration, some amount of sympathy
linked with the nature of the disability caused. But all the aforesaid
elements have to be viewed with objective standards.
25. As per the medical report dated 07.06.2010 regarding disability
filed by Dr. Ram Manohar Lohia Hospital, New Delhi, the disability
under question in this particular case has not been categorised in
notification dated 01.06.01, No.16-18/97 NI.1., issued by the Ministry of
Social Justice and Empowerment, therefore, it is not possible to assess
the disability in relation to whole body. However, it is stated that as
particular organ (for sexual function) is concerned, there is total (100 %)
disability for normal intercourse/erectile function in appellant. It affects
not only on the physical frame of the appellant, but also has the impact
on the mental faculties; therefore, the loss is intangible.
26. In view of the above discussion, the compensation amount is
hereby granted as under:-
1. On account of conveyance charges : Rs.20,000/-.
2. On account of marriage prospects : Rs. 1,00,000/-.
3. On account of loss of education : Rs. 50,000/-.
4. On account of special diet : Rs. 20,000/-.
5. On account of pain and
sufferings, loss of amenities of
life, mental shock and agony : Rs.1,00,000/-
6. On account of future treatment : Rs.25,000/-
27. Consequently, the compensation amount comes as under:-
Sr. Heads Calculation as Calculation as
No. per MACT per this Court
I. On account of medical Rs.1,90,000/- Rs.1,90,000/-
expenses
II. On account of future -nil- Rs.25,000/-
medical treatment
III. On account of Rs.5,000/- Rs.20,000/-.
conveyance charges
IV. On account of special Rs.10,000/- Rs. 20,000/-.
diet
V. On account of pain & Rs. 50,000/- Rs.1,00,000/-.
sufferings, loss of
amenities of life,
mental shock & agony
VI. On account of loss of Rs. 15,000/- Rs. 50,000/-.
education
VII. On account of Rs. 25,000/- Rs. 1,00,000/-.
marriage prospects
TOTAL Rs.2,95,000/-" Rs. 5,05,000/-
28. Accordingly, the enhanced compensation amount comes to
Rs.2,10,000/- (Rs. 5,05,000 - Rs.2,95,000/-)
29. The enhanced compensation amount shall carry interest @ 6% per
annum from the date of filing of the claim petition till realization of the
amount.
30. Accordingly, the respondent No.3/Insurance Company is directed
to deposit the enhanced compensation amount with interest with the
Registrar General of this Court within a period of five weeks from today,
failing which, appellant/claimant shall be entitled for penal interest @
9% per annum on account of delayed payment.
31. On deposit, the Registrar General is directed to release the amount
in favour of the appellant/claimant on taking necessary steps by him.
32. In view of the above, the appeal is allowed.
SURESH KAIT, J.
FEBRUARY 06, 2014
Sb/RS/jg
