Samunder Singh vs Hari Shankar & Anr
2014 Latest Caselaw 2329 Del

S-2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     MAC APP. 916/2013
      SAMUNDER SINGH                                     ..... Appellant
                         Through:     S.N. Parashar, Advocate.

                         versus

      HARI SHANKAR & ANR                                ..... Respondents
                   Through:           Mr. R.C. Mahajan, Advocate for R-2.

      CORAM:
      HON'BLE MS. JUSTICE DEEPA SHARMA

                         ORDER

% 08.05.2014

1. The appellant on 7th March, 2004 boarded the Indigo Car bearing no. DL-1YA-0431 from Palam as a passenger for proceeding towards Najafgarh. The driver of the car was driving at a very high speed and in a very rash and neglible manner. At about 6.40 pm, when the car reached at Hanuman Mandir on Chhawla Road, the driver lost control over it and caused accident. The appellant suffered grievous injuries and was immediately removed to RTRM hospital, Jafarpur Kalan in PCR Van where the MLC was prepared. The appellant remained hospitalised from 7th March, 2004 to 24th March, 2004.

2. In the accident, the appellant suffered multiple injuries with fracture dislocation of left hip and fracture of left humerus upper one- fourth, Orif of left humerus left Acetabulum was done by using plates and screws under GA. The hip of the appellant was replaced with the artificial hip. He remained admitted in the hospital for about three to four months in two spans and underwent three operations. He had suffered the permanent disability of less than 40% in relation to left hip and left shoulder.

3. It is contended that due to the injuries, he become disabled and was unable to climb, sit cross-legged, play, swim and squat and his day-to-day activities were also affected. His age at the time of the accident was 36 years.

4. On these aspects, the learned tribunal considered the evidences of record and found that the appellant was an electrician by profession. The tribunal has further held that according to the doctor, the patient was not able to perform his duties effectively as he was unable to climb and sit cross leg. The tribunal has granted the sum of Rs. 2,40,995/- towards medicine and treatment, a sum of Rs. 2,50,103/- towards loss of earning on account of disability, a sum of Rs. 2,00,000/- towards future medical expenses inclusive of already paid charges towards hip replacement, Rs. 50,000/- towards pain and sufferings, Rs. 25,000/- towards special diets and conveyance, Rs 40,000/- towards attendant charges and Rs. 25,000/- towards loss of amenities and thus awarded total sum of Rs, 8,31,098/- along with interest at the rate of 7.5% from the date of filing of the petition till its realisation.

5. It is contended that while the tribunal has awarded in para 44 of its award dated 31st January, 2013, a sum of Rs. 2,52,150/- towards medicines and treatment against the bill actually proved, however while totalling the awarded amount in para 56 of the award, it has been reduced to Rs. 2,40,995/-, without showing any reason for the same.

6. I have seen the award and it seems by mistake the ld. tribunal has mentioned a sum of Rs. 2,40,995/- on para 56 of award, while in fact, ld. Tribunal has calculated the entitlement under the head as Rs. 2,52,150/- .

7. I accordingly grant the sum of Rs. 2,60,000/- towards the medicines and treatment of the appellant which includes the miscellaneous expenses for which the petitioner had not been able to submit bills.

8. The appellant has stated that as per the doctor's statement, which fact is not disputed, he requires replacement of the hips after 15 and 20 years. His age was 30 plus at the time of the accident and therefore, he requires minimum two hip implants during his lifetime.

It is argued that although the learned tribunal has agreed that the appellant needed a sum of Rs.80,000/- as cost of artificial hip and a sum of Rs. 5,37,06/- as hospitalisation charges, still, the learned tribunal has awarded only a sum of Rs. 2 lacs including the money he has already spend on his first hip implant.

9. It is contended on behalf of the Insurance Company that the learned trial court has taken into consideration all the facts and circumstances while awarding the sum of Rs. 2 lacs as compensation towards the future medical expenses inclusive of expenses incurred for first implant.

10. It is not in dispute that the appellant had spent Rs. 5,37,06/- towards hospitalisation and Rs. 80,000/- as cost of artificial hip and the life of artificial hip..

11. From the testimony of Doctor Naveen, PW-13, it stands proved that the life of the artificial hip is approximately 15-20 years, meaning thereby that after every 15-20 years, the appellant would need a fresh implant. The age of the appellant was about 36 years at the relevant time. So, even if we take his overall age as 80 years, he needs minimum two implants. The record shows that the appellant has spent Rs. 53,706/- towards hospitalisation and Rs. 80,000/- towards cost of artificial hip, thus, the total amount comes to Rs. 1,33,706/-. The court also has to take notice of the fact that the medical costs are increasing day by day and therefore, I award a sum of Rs. 3 lacs towards future medical treatment on account of hip replacement.

12. It is also argued by the appellant that the learned tribunal has not taken into consideration the future prospects for calculating his income for the purpose of grant of loss of future earnings. Learned counsel for the Insurance Company has stated that no such addition towards future increment is to be added in the salary and has relied upon the judgment of Hon'ble Apex Court in the case of M.K. Gopinathan Vs. J. Krishna & Ors., 2014(5) SCALE.

13. I have given careful consideration to the rival contentions and have gone through the case law relied upon. In the case of M.K. Gopinathan (supra), the Apex Court has not discussed the proposition of grant or non- grant of the future increments while calculating the future loss of earning. The Hon'ble Supreme Court has simply used the formula and calculated the amount of compensation in the backdrop of the facts and circumstance of the case. However, in the case of Neerupam Mohan Mathur Vs. New India Assurance Company, 2013 (8) SCALE 360 the learned apex courts of three-Judge Bench has clearly laid down the proposition and the formula to be followed while calculating the loss of future earnings in injury cases.

Relevant para is reproduced hereunder:-

"6. In the appeal preferred by the claimant the High Court taken a loss of earning capacity to 70% in view of permanent disability of right hand. Based on salary of Rs. 3,000/- per month as claimed by the claimant adding 50% on the same for future prospects of increase and applying multiplier of 16, compensation amount was raised to Rs.4,500/- with interest at 6% from the date of petition. The High Court made the following observation while granting compensation against different heads:

"4. In my view, the issue relating to death or injury would have no serious difference in the choice of multiplicand or the multiplier. If at all, case of injury that completely disables a person for life is more poignant than a case of death and that is why Courts do not always provide for deductions for personal expenses in case claims for injuries. Indeed, the deduction itself will be meaningless for unlike a case of death, we need to make provision for his own living as well as the living of persons, who are dependent on injured person. The loss in case of injury where there is an amputation and there is a high percentage of loss of earning capacity, in my view, the principle laid down in Sarla Verma providing for a prospect of future increase in salary cannot be ruled out. I would, therefore, take the multiplicand to be Rs. 4,500/- which is the salary of Rs. 3000/- per month plus 50% of the same for future prospects of increase.".

14. Although, both the judgments were pronounced by three-Judges Bench of Apex Court but since in the case of Neerupam Mohan Mathur (supra), the hon'ble Apex court has discussed the law and the principles governing the calculation of future income in the case of disabilities, although Neerupam Mohan (supra) is an earlier issue, it has not been discussed in the case M.K. Gopinathan (supra) no such discussion finds its mention in the case of M.K. Gopinathan Vs. J. Krishna & Ors., 2014(5) SCALE. Following the principles laid down in Neerupam Mathur (Supra), the appellant is entitled for the future prospects.

15. Before the tribunal, since the appellant could not produce any evidence to prove his salary and since the learned tribunal reached to the conclusion that he was working as an Electrician, the learned tribunal had taken the minimum wages of the unskilled workers i.e. Rs. 2862.90/- as on 01.02.2004. On the basis of evidence, ld. tribunal has also opined that the injured/claimant was not able to perform his work of electrician effectively and thus added 30% towards future earning capacity which he had lost due to this accident. Admittedly, the age of the claimant was 35 years at the time of the accident and 50% of his last drawn wages were required to be added as loss of future income (as per Neerupam Case supra).

16. Loss of future Income -

50% of Rs. 2862.90 + 2862.90 = Rs. 4294.35/- .

17. There is no dispute regarding use of the multiplier. The learned tribunal has used the multiplier of 16.

18. From the disability certificate Ex. PW 12/A, it is apparent that the claimant has suffered permanent disability of less than 40% of left hip and left shoulder. Doctor Rupam Meena, Ortho Specialist, RTM Hospital, New Delhi has clearly stated that the exact percentage of the disability is 35.55% in relation to left lower limb and left upper limb which is non-progressive and has also opined that due to these injuries, the patient would not be able to perform his duties as an Electrician, effectively. He would not be able to climb and sit crossed leg, play, swim and squat. In the cross-examination, doctor has clearly stated that there was no possibility of improvement in the condition of the patient. Doctor has further opined that even after the replacement of the hip, he will not be able to perform his daily course and walk properly. These facts clearly show that the disability of the claimant was total, he has been prevented to perform his work of electrician, to earn livelihood. This disability has thus affected his earning capacity up to the extent of his disability. In these circumstances, the learned tribunal has correctly assessed the whole body disability as 35%.

19. Loss of earning due to disability = Rs. 4294.35 X 12 X 16 X 35/100 = Rs. 288580.32/- (rounded to Rs. 288581/-)

20. The following amount of compensation is awarded to the appellant.

1.    Medicine and treatment                 :      Rs. 2,60,000/-
2.    Loss of earning on account             :      Rs. 2,88,581/-
of disability
3.    Future Charges plus already            :      Rs. 4,33,706/-
paid towards hip replacement
4.    Pain and Suffering                     :      Rs. 50,000/-
5.    Special Diet & Conveyance              :      Rs. 25,000/-
      6.      Attendant Charges                      :     Rs. 40,000/-
     7.      Loss of amenities                      :     Rs. 25,000/-


     Total                                          :     Rs. 11,22,287/-

21. It is prayed by the respondent/Insurance Company that no interest should be awarded on the amount of compensation towards future hip replacement. Accordingly, while an interest of 7.5% is awarded on the enhanced amount of compensation from the date of petition till its realisation, no interest is awarded on a sum of Rs 3 lacs which has been granted towards the future expenses to be incurred by the appellant on his hip replacement in future. This amount shall also be kept by the appellant in FD which is to be released with the permission of the court at the time of his hip replacement.

22. The insurance company is directed to pay the amount within eight weeks, in default of which, it shall be liable to pay the interest of 12% per annum on the entire amount from the date of default till its realisation.

23. With the above observation, this petitions stands disposed of.

DEEPA SHARMA, J MAY 08, 2014 sapna