Delhi High Court
Nikunj Wadhawan vs Jitender & Ors on 28 January, 2014
Author: Suresh Kait
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28th January, 2014
+ MAC.APP. 779/2012
NIKUNJ WADHAWAN ..... Appellant
Represented by: Mr. H.S. Arora, Adv.
Versus
JITENDER & ORS ..... Respondents
Represented by: Ms. Shruti Shukla, Adv. for
R3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant appeal is directed against the impugned award
dated 12.01.2012 whereby Ld. Tribunal has awarded compensation for a
sum of Rs.10,61,541/- with interest @ 7.5% per annum from the date of
filing of the petition till realization of the amount.
2. Vide the instant appeal, appellant is seeking enhancement of the
compensation amount noted above.
3. Ld. Counsel appearing on behalf of the appellant / claimant has
argued that PW5, Dr. Arun Yadav, Sr. Orthopaedic Surgeon, Bara Hindu
Rao Hospital, deposed that as per disability certificate Ex.PW3/16, the
appellant had received 50% permanent disability qua the whole body.
However, ld. Tribunal has erred in considering 35% functional disability.
4. Ld. Counsel further submits that though the appellant had past history
of Epilepsy, however, Insurance Company has not led any evidence as to
what would be the effect of the Epilepsy on permanent disability of the
injured.
5. As per Ex.PW2/1, appellant had no seizure for the last one year. Ld.
Counsel submits that when there was no seizure of the Epilepsy for the last
one year, then reducing the economic disability from 50% to 35% does not
arise.
6. Ld. Counsel further argued that the appellant was 25 years old young
unmarried boy, was helping and assisting his father in the business of
medicines and earning Rs.12,000/- per month. Mother of the injured had
already pre-deceased and there is no other member in the family to look after
him, except his father.
7. Ld. Counsel for the appellant submits that the Ld. Tribunal ought to
have considered the functional disability as 50%. On this issue he has relied
upon a case of Raj Kumar v. Ajay Kumar and Anr. (2011)1SCC343
wherein in Para 5 it is held as under:
"A person is not only to be compensated for the physical
injury, but also for the loss which he 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 but for the injuries,
and his inability to earn as much as he used to earn or could
have earned."
8. The Ld. Counsel further submits that in Para 6 of the case of Raj
Kumar (Supra), the Apex Court has further held as under:
"The heads under which compensation is awarded in
personal injury cases are the following:
Pecuniary damages (Special Damages) (i) Expenses relating
to treatment, hospitalization, medicines, transportation,
nourishing food, and miscellaneous expenditure. (ii) Loss of
earnings (and other gains) which the injured would have
made had he not been injured, comprising: (a) Loss of
earning during the period of treatment; (b) Loss of future
earnings on account of permanent disability. (iii) Future
medical expenses, Non-pecuniary damages (General
Damages) (iv) Damages for pain, suffering and trauma as a
consequence of the injuries. (v) Loss of amenities (and/or loss
of prospects of marriage). (vi) Loss of expectation of life
(shortening of normal longevity).In routine personal injury
cases, compensation will be awarded only under heads (i),
(ii)(a) and (iv). It is only in serious cases of injury, where
there is specific medical evidence corroborating the evidence
of the claimant, that compensation will be granted under any
of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future
earnings on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects of
marriage) and loss of expectation of life."
9. Ld. Counsel further submits that appellant remained in hospital for 24
days. Since the date of accident, he is leading life with the help of
wheelchair. The conveyance charges will continue throughout his life and in
such condition, he requires special diet. However, Ld. Tribunal has granted
Rs.9,000/- towards conveyance and special diet, which is on a lower side.
10. Keeping in view the disability received by the injured, I am of the
considered opinion that ld. Tribunal has considered meagre amount of
Rs.9,000/- towards conveyance and special diet. Therefore, I enhance to
Rs.30,000/- towards the heads noted above.
11. As the issue of compensation towards marriage prospects is
concerned, it is true that due to the injuries received in the accident, the
marriage of the appellant could not take place. He has lost the enjoyment of
married life and becoming of a father. However, I am of the considered
opinion that Ld. Tribunal after considering all the facts has rightly awarded
Rs.2,00,000/- towards marriage prospects. I do not find any discrepancy on
this issue.
12. So far as the issue of disability is concerned, as per the disability
certificate, the Disability Board has specifically mentioned that the injured
received 50% permanent disability qua the whole body. He has become
paralytic. He is leading his life with the help of a wheelchair and is unable
to do anything. However, there was no occasion before the Ld. Tribunal to
reduce the disability from 50% to 35%. Accordingly, the disability is
considered as 50%.
13. Consequently, the compensation amount comes as under:-
Sr. Heads of Compensation Compensation
compensation granted by the ld. granted by this
No.
Tribunal Court.
i. Loss of income Rs.11,859/- per Rs.11,859/- per
on account of month month
leave
ii. Future loss of Rs.4,48,300/- Rs.6,40,386/-
income
iii. Attendant Rs.10,500/- Rs.10,500/-
Charges
iv. Pain and suffering Rs.1,00,000/- Rs.1,00,000/-
v. Loss of amenities Rs.1,00,000/- Rs.1,00,000/-
of life
vi. Loss of Rs.1,00,000/- Rs.1,00,000/-
Expectation of
life
vii. Loss of Marriage Rs.2,00,000/- Rs.2,00,000/-
prospects
viii. Conveyance & Rs.9,000/- Rs.30,000/-
Diet Charges
ix. For Medical Rs.81,882/- Rs.81,882/-
Treatment
Total Rs.10,61,541/- Rs.12,74,627/-
Resultantly, this court enhanced the compensation amount to
Rs.2,13,086/- (Rs.12,74,627 - Rs.10,61,541).
14. The enhanced compensation amount shall carry interest @ 7.5% per
annum from the date of filing of the claim petition till realization of the
amount.
15. Accordingly, the respondent No.3/Insurance Company is directed to
deposit the enhanced compensation amount 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 @ 12% per annum on
account of delayed payment.
16. On deposit, the Registrar General is directed to release the amount in
favour of the appellant/claimant on taking necessary steps by him.
17. In view of the above, the appeal is allowed.
SURESH KAIT, J.
JANUARY 28, 2014
Jg/RS
