Delhi High Court
Anita Gupta vs Kamlesh & Ors. on 13 May, 2014
Author: Suresh Kait
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:13th May, 2014
+ MAC.APP. No.504 /2010
ANITA GUPTA ..... Appellant
Represented by: Mr. Ravindra Narayan, Advocate.
Versus
KAMLESH & ORS. ..... Respondents
Represented by: Mr.L.K.Tyagi Advocate for
Respondent No.3/Insurance
Company.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present appeal, the appellant/injured has assailed the
award dated 03.04.2010, whereby the learned Tribunal has granted
compensation as under:-
"Medical expenses : Rs. 5,00,000/-
Proposed future medical expenses : Rs. 3,00,000/-
Domestic help/attendant charges : Rs. 1,00,000/-
Future medication, physiotherapy,
conveyance, domestic help/attendant charges : Rs. 2,00,000/-
Conveyance, boarding and lodging charges : Rs. 1,00,000/-
Special diet : Rs. 1,00,000/-
Future loss of income : Rs. 20,25,000/-
Mental agony, pain and sufferings : Rs. 1,50,000/-
Loss of amenities of life : Rs. 1,50,000/-
Depression and mental state : Rs. 1,50,000/-
Matrimonial discomfort : Rs. 1,00,000/-
-------------------------
Total : Rs 38,75,000/-"
-------------------------
Interest at the rate of 7.5% per annum from the date of filing of
the claim petition till realization of the amount was also awarded.
2. This appeal is filed for enhancement of the compensation as noted
above.
3. Brief facts of the case are that on 18.02.2005 the appellant boarded
bus No. DL1PA5730 from Red Fort for her residence at Laxmi Nagar,
Delhi. At about 8.00 p.m., the bus was proceeding on Vikas Marg and
was nearing Laxmi Nagar crossing. The injured was to de-board the bus
at Laxmi Nagar Bus Stop. She got up from seat and proceeded towards
exit gate. She was holding the rod at the side of front exit gate of the bus.
At that time, the bus was being driven at a high speed and in a rash and
negligent manner. The bus driver abruptly applied the brakes with full
force before the crossing, as a result she fell out from the front gate and
came under the rear left wheel of the bus and sustained multiple grievous
injuries.
4. Mr.Ravindra Narayan, learned counsel appearing on behalf of the
appellant/injured submitted that due to the accident, the appellant
suffered multiple grievous injuries including "crush injury left forearm
upper 2/3 with extensive degloving injury left forearm and arm with
extensive crushing of left forearm muscles with fracture both bone
forearm with ulner, median and radial nerve injury with fracture ribs left
with surgical emphyscene with fracture coracoids process left scapula
with large haematoma around left thigh, trochanture region and glutial
region with abrasions over left knee", with other injuries as shown in
discharge summary Ex.PW4/A.
5. It is submitted that the appellant is leading a crippled life. The
treatment is continuing (bills and prescriptions have already been placed
on record for the period from 31.07.2008 to 11.01.2010 and from
12.01.2010 to 18.08.2011). The appellant has suffered permanent
disability to the extent of 90% qua left upper and lower limbs, the
certificate to this effect is Ex.PW1/A. PW1, Dr.Binod Kalita, who
issued the aforesaid disability certificate, deposed as under:-
".....this certificate is issued after examination of the
patient by me. Patient can move with the help of
crutches, but not independently on her own. She is
unable to tie a knot independently, the patient can attend
to the extent where the right limb is normal and the rest
of the daily chore cannot be looked after by her
independently."
6. Learned counsel further submitted that the statement of PW6,
Sunita, Maid Servant, clearly shows the dependency of the appellant on
attendant. Relevant portion of para 4 and 5 of her statement is as under:-
"4........I help her in her daily chores of life such as to
take her to bathroom, to take bath to dress her after bath
and to remain with her all throughout.............
5.........one domestic help namely Ms. Noor Jahan is also
working with the family of Mrs. Anita Gupta to look after
the daily needs of the family such as cleaning the house,
washing the clothes, kitchen work..........."
7. Accordingly, keeping in view her dependency, the learned
Tribunal has considered the permanent disability as 100% qua whole
body. Moreover, as per Schedule I, Sections 2 (1) and 4 of the Workmen
Compensation Act, in case of permanent disability because of loss of a
hand and a foot, the percentage of loss of earning capacity will be 100%.
8. Mr.Narayan, learned counsel further submitted that consequent to
the accident, the appellant has become Asthmatic, suffering from Severe
Urine Incontinence, Gait-in coordination, Diplopia, Squint, Poor Eye-
sight and Double Vision, Gynae problem and joint and back pain due to
lengthening of leg by one inch.
9. Learned counsel further submitted that after recording evidence of
the appellant on 01.06.2009, she had fallen down resulting in breakage
of L2 vertebra into three pieces. Dr. B.B.Choudhary stated that the fall
was due to „Gait-in coordination‟(as annexure D at page No. 13 of the
application dated 10.10.2011) as under:-
".....The fracture of L-2 was due to a fall which was due
to gain-in coordination which in turn was possible due to
the Poly-trauma (due to road traffic accident)."
10. According to R.P.Centre, AIIMS, the injured who was examined
on 06.04.2011 has received 40 to 75% permanent visual disability. The
same is annexure E at page No.37 of an application.
11. It is further submitted that as per Para 30 of the award, the Ld.
Tribunal added future prospects at the rate of 50%, thus, making income
to be Rs.22,500/-, but deducted 50%, i.e., Rs.11,250/-. She was 36 years
only at the time of the accident and would have definitely had a very
good chance to reach to the appreciable heights in the profession in
future if she had not suffered the grievous injuries and permanent
disability of 100% on account of the accident.
12. Learned counsel further submitted that the learned Tribunal erred
in deducting 50% towards personal expenses as the same is done only in
death cases and not in the permanent disability cases. The appellant is
alive and has to spend more upon herself to meet the daily needs. So, the
compensation must have been calculated by taking the income as
Rs.22,500/- per month instead of Rs.11,250/- per month.
13. Learned counsel submitted that the appellant has proved on record
that she has been spending a minimum of Rs.35,000/- (Rs.30,000/- at the
time of evidence) on medical expenses, which was not required prior to
the accident. Thus, the appellant may be awarded a sum, which can
fetch a minimum of at least Rs.45,000/-, i.e., her income + medical
expenses at the rate of Rs.35,000/- per month.
14. Mr. Narayan, learned counsel further submitted that the appellant
has not been awarded any amount towards litigation expenses during the
period of trial although pleaded in the claim petition and required to be
granted as is law of the land.
15. Learned counsel further submitted that the learned Tribunal failed
to consider the entire aspect. It has to take into account the inflation with
reference to the date of the accident.
16. To support his submissions, learned counsel for the appellant has
relied upon a case of Shri Virender Singh Vs. Shri Anand Prakash &
Ors., 2008 ACJ 2519, wherein the Apex Court has awarded a sum of
Rs.4,50,000/- as non-pecuniary damages in the year 1980. The cost
inflation index of Government of India for 1980-81 was Rs.100/- and for
the year 2011-12 was Rs.785/-, thus, the value of Rupee on account of
cost inflation index comes to Rs.785/-. Accordingly, it is prayed, this
court may grant compensation for non-pecuniary losses by 7-8 times.
17. Learned counsel further submitted that the appellant requires to be
operated upon for removal of nails and plates from radius and ulna
bones, and plastic surgeries of left hip up to knee for which an estimate
of Rs.15,00,000/- has been given, which itself is sufficient to show the
magnitude of the injuries suffered by the appellant. For her mobility, the
appellant is required to purchase a four wheeler and to engage a driver to
take her to hospital for treatment which is still continuing.
18. Learned counsel for the appellant has relied upon a case of Rekha
Jain Vs. National Insurance Co. Ltd. & Ors. 2013 8 SCC 389 wherein
held as under:-
"31. Both the Tribunal as well as the High Court have
gravely erred both on facts and in law in not evaluating
the legal evidence on record to award just and
reasonable compensation in favour of the appellant
keeping in view the fact that the appellant was a good
actress, model and has acted in many films, albums, T.V.
serials etc. This evidence is not challenged though the
appellant was cross examined by the counsel for the
respondent Insurance Company extensively without
obtaining the permission from the Tribunal as required
under Section 170(b) to contest in the proceeding. In the
absence of such permission, the Insurance Company has
got limited defence as provided under section 149(2) of
the Motor Vehicles Act, which provides for the conditions
which determines breach of the terms and conditions of
the insurance policy. The Tribunal did not apply the legal
principles laid down by this Court to award just and
reasonable compensation by following various guiding
factors and legal principles under the heading of future
loss of earnings. It has also not awarded compensation
under the following heads namely (1)damages for mental
and physical shock, pain and suffering already undergone
by the appellant or she is likely to undergo in future, (2)
damages for loss of amenities of life on account of injury
due to which the appellant is unable to act in the films
and (3) damages for the loss of expectations of life,
inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life. The said principles
have been recognized by this Court time and again in
catena of cases reference to which are not required to be
mentioned again as we have referred to the same in the
preceeding paragraphs of this judgment.
xxxx xxxx xxxx xxxx
34. Further, she has stated in her evidence that at the
time of accident she had completed her graduation in
Commerce from G.M. College, Sambalpur and she was
pursuing her studies for her post graduate degree in that
College. Prior to her admission to P.G. Class, she had
done P.G. Diploma course in Hotel Management from the
Institute of Hotel Management and Catering Technology,
Bhubaneswar. She has further stated that while pursuing
her studies she was performing in the films referred to
supra. She has further stated that after the accident, her
physical fitness, physical appearance and her zeal to
perform in films have been reduced to zero. The vital
statistics required of her for modelling has also become
disproportionate after the accident. She has categorically
stated that she became permanently handicapped and
disabled. She has also stated that prior to the accident
she was lean and thin. But due to continued treatment
after accident, she gained 4 to 5 k.gs. The aforesaid
positive and substantive legal evidence remained
unshaken in the cross examination of the appellant - PW-
3 by the counsel of the respondent Insurance Company,
though he was not entitled to cross examine all these
aspects since the Company did not obtain the permission
from the Tribunal. Nonetheless, permission was granted
by the Tribunal to cross examine the appellant-PW3.
Despite her cross examination by the counsel, the
aforesaid important facts could not be shaken and the
same remained unchallenged and undisturbed.
xxxx xxxx xxxx xxxx
38. For a film actress, the physical appearance
particularly the facial features are very important to act
in the films and in T.V. serials. It is in her evidence that
on account of the accident her face was disfigured, she
has put on weight and has become fat and therefore she is
unable to perform the role as an actress in films in future.
Having regard to the nature of vocation she has been
carrying on and wishes to carry on with in future, the
opportunity is lost on account of the disfigurement of her
face, to act in the films as an actress either as a heroine
or actress in supporting role or any other role to be
played in T.V. serials, albums and also as a model. It is in
the evidence of the appellant that as per the District
Medical Board of Sambalpur, her permanent disability is
30%. Having regard to the nature of injuries and
observations made by this Court and Karnataka High
Court in the cases referred to supra, we have to record a
finding of fact that the appellant‟s permanent disability
should be treated as 100% functional disablement as she
cannot act in the films and in T.V. serials in future at all.
Therefore, on account of the aforesaid reasons, she has
suffered functional disability. In this regard, it is relevant
to refer to the judgment of this Court in the case of
National Insurance Company Ltd. V. Mubasir Ahmed15.
This Court has held that loss of earning capacity is not a
substitute for percentage of physical disablement. It is
simply one of the factors taken into account to award just
and reasonable compensation. Even though the claimant
does not suffer from 100% physical permanent disability,
he suffers from 100% functional disability if he loses the
capacity to pursue his work as a result of the accident. It
is worthwhile to extract paragraph no. 8 from the
aforesaid judgment which reads as under:
"8. Loss of earning capacity is, therefore, not a
substitute for percentage of the physical disablement. It
is one of the factors taken into account. In the instant
case the doctor who examined the claimant also noted
about the functional disablement. In other words, the
doctor had taken note of the relevant factors relating to
loss of earning capacity. Without indicating any reason
or basis the High Court held that there was 100% loss
of earning capacity."
xxxx xxxx xxxx xxxx
42. In view of the aforesaid decisions of this Court and
various courts and High Court of Karnataka and authors
referred to supra, we have to record the finding of fact
having regard to the nature of grievous injuries and her
disfigured face and that she was acting as an actress in
the films, T.V. serials, etc. her functional disablement is
100%. This relevant aspect of the matter has been
conveniently omitted to be considered both by the
Tribunal as well as by the High Court while determining
compensation under various heads of non-pecuniary
damages. For the foregoing reasons, we are of the view
that under the different heads of non-pecuniary damages
she is entitled to higher compensation in her appeal. For
that purpose, we are required to consider her annual
income for the purpose of computation of just and
reasonable compensation under the aforesaid different
heads of non-pecuniary damages. It is in her evidence
that her income depends upon the project. She got
30,000/- for her first film "Maa Pari Kiye Haba" and
Rs.75,000/- for Malayalam film „Paith Digem Alam‟. For
her performance in a serial, she used to get within
Rs.7000/- to 10,000/-. She had received Rs.50,000/- for
winning the "Ponds Women of Tomorrow" Contest. The
said evidence remains unchallenged in the cross
examination by the counsel for the respondent Insurance
Company. Having regard to her age and qualification
and that she was acting in various Oriya and Malayalam
films, T.V. serials and that she was in the beginning stage
of her acting career and having regard to the fact that
she has acted in various films, she would have definitely
had a very good chance for acting in future if she had not
suffered the grievous injuries, facial disfigurement and
other injuries on account of the accident. She has also
stated in her evidence that she is an assessee for income
tax. She has got PAN card and has produced the same.
Having regard to the aforesaid legal evidence on record
and in the absence of documentary evidence to show her
probable annual income, it would be proper for this
Court to take her probable annual income as
Rs.5,00,000/- for the purpose of computation of her future
loss of earning. We have already held that though the
disability certificate speaks of her disability at 30% on
account of disfigurement of the face and other injuries to
her body, her physical fitness is completely changed, she
has put on weight 4 to 5 kgs., she is not fit to act and no
film producer will offer her roles in their films to act as
an actress. Having regard to the nature of the vocation,
we have to hold that she is suffering from 100%
functional disability. In the light of the facts of this case
and keeping in view the aforesaid evidence on record that
she is a film actress and also taking into consideration
that in the film world of this country the heroine will
certainly get the substantial sum for acting in films, T.V.
serials, modelling, it would be just and proper for us to
take 50% of her annual income for the purpose of
computation of her future loss of income keeping in view
that throughout her life she may not be in a position to
act in the films, albums and modelling. Her annual
income is assessed at Rs.5,00,000/-. 50% of which is
Rs.2,50,000/- per annum which is multiplied by 17 as the
proper multiplier considering her age at the time of
accident by applying the legal principle laid down by this
Court in Sarla Verma & Ors. v. Delhi Transport Corp. &
Anr.18, which amounts to Rs.42,50,000/-. Hence, we
award Rs.42,50,000/- compensation under the aforesaid
head. The Tribunal awarded only Rs.2,00,000/- which is
enhanced to Rs.42,50,000/- under the said head. 43. The
Tribunal awarded compensation of Rs.2,00,000/- for the
loss of amenities, pleasure of life and her inability to
attend social functions in future, which is inadequate,
therefore, it should be enhanced to Rs.10,00,000/-."
19. On the other hand, Mr. L.K.Tyagi, learned counsel appearing on
behalf of the respondent No.3/Insurance Company submitted that income
of the claimant was taken at Rs.15,000/- per month without any proof or
record and the same is on higher side. The claimant had not filed any
documents except the certificates alleged to be issued by the Bankers
showing some FDRs in the names of her children. Even otherwise, the
income of a person cannot be proved from the amount deposited in the
FDRs unless the source of said money is proved on record.
20. He further submitted that the loss of earning capacity of the
claimant at 100%, as taken by the learned Tribunal, is on a higher side.
As per the disability certificate of the claimant, she suffered permanent
disability to the extent of 90% in relation to her left upper and lower
limbs, but her mental faculties have not been impaired in any manner
and as per the statement of the claimant she was helping her husband in
court cases. In these circumstances, the claimant still can continue to
assist her husband by doing the chamber work.
21. Mr. Tyagi, learned counsel further submitted that the additional
documents filed by the appellant cannot be read in evidence till the same
are proved on record and the respondent No.3/Insurance Company is
given liberty to cross-examine the witness examined by the appellant.
22. He further submitted that the Tribunals are required to make an
award determining the amount of compensation which is to be in real
sense for „damages‟, which in turn appears to be „just and reasonable‟.
However, the compensation is not expected to be a windfall for the
victims. The statutory provisions clearly indicate that the compensation
must be just‟ and it cannot be a bonanza, not a source of profit.
23. Learned counsel further submitted that keeping in view the
injuries and the treatment undergone, the learned Tribunal has taken into
consideration the medical expenses, loss of income, loss of future
prospects, proposed future medical expenses, domestic help/attendant
charges, loss of amenities of life, mental agony, pain and sufferings,
depression and mental state, marital enjoyment etc. and thereafter,
granted the compensation rather on a higher side. Therefore, no
interference is required from this Court.
24. I have heard the learned counsel for the parties and have perused
the record.
25. Perusal of the record shows that in the accident in question, the
appellant received multiple grievous injuries. She remained under
treatment as an Indoor patient of Monga Medical Center from the date of
accident, i.e., 18.02.2005 to 07.03.2005. The MLC and discharge
summary of Monga Medical Center had been proved as Ex.PW4/A. She
has proved the medical bills of her treatment as Ex.P-79 to Ex.P-292 and
her consolidated statement alongwith bills and vouchers as Ex.PW5/J to
the amount of Rs. 3,85,987/-.
26. PW2, Dr. V.K. Sharma, Consultant Orthopaedic Surgeon, Monga
Medical Center, deposed that he had treated the injured for fracture in
both bones of forearms with crush injuries on the left forearm, with
fracture coronoid process (in shoulder) and the left scapula, with surgical
emphysema with large haematoma around left thigh and whole gluteal
with abrasions left knee. The injured was surgically treated twice on
19.02.2005 and 02.03.2005. The second surgery was on 02.03.2005
followed by plastic surgery. The skin grafting was done by taking the
skin from left thigh.
27. Dr. V.K.Sharma, further deposed that even after surgery and
treatment, the injured was not completely cured. She was treated only
for left forearm. She was advised for further management for the injuries
in gluteal region and upper part of left thigh as it required special care as
any immediate surgery could have resulted into serious complications.
28. PW3, Abhey Ram, Record Clerk from Safdarjung Hospital, has
proved the discharge summary and treatment record of the appellant, as
was admitted there on three occasions. Firstly, she was admitted for the
period from 17.03.2005 to 27.04.2005, to this effect discharge summary
is proved as Ex.PW3/A. She was again admitted from 27.05.2005 to
13.06.2005, the discharge summary for this period is Ex.PW3/B. During
her stay in the hospital, an operation was performed on 30.05.2005 for
post traumatic degloving injury debridement and skin grafting under GA,
accordingly, a large portion of skin from her thigh was taken and grafted
on her left hip. She was discharged with advise to remain on strict bed
rest.
29. The appellant was again remained admitted in the hospital
from 22.06.2005 to 28.06.2005, the discharge summary is Ex.PW3/C.
While admission on 23.06.2005, an operation was performed for plating
and nailing of radius and ulna bones of left forearm alongiwth bone
graft. The bone for grafting was taken from right pelvic bone.
30. Thus, in connection with her treatment, the appellant was referred
to one hospital to another such as Safdarjung Hospital, AIIMS, Apollo,
Lucknow, Aligarh, LNJP, LBS, Ganga Ram and even to Chennai. The
documents of which have been proved on record by PW5 as Ex.P-5 to
Ex.P-62. The appellant was examined by the Medical Board of
Rehabilitation, LBS Hospital for assessment of permanent disability and
assessed as 90% disability of the left lower and upper limb. The
disability certificate of the same is Ex.PW1/1.
31. According to Dr. Binod Kalita, who was one of the members of
the Board and examined as PW1, the appellant could move with the help
of clutches but not independently. She was unable to even tie a knot
independently.
32. On further perusal of the trial court record, it is revealed that her
treatment was still continuing despite the long period of hospitalization.
33. The appellant has placed on record a certificate issued from the
Apollo Hospital as Ex.P-6 for her future surgery showing approximate
expenses for an amount of Rs.1,70,000/-. At the same time, she also
placed on record certificate Ex.P-64 issued by the same hospital for her
future surgery for removing of plates from forearm and rough estimate of
the surgery was given as Rs.1,00,000/-.
34. The appellant also examined PW6 Sunita, who was working as an
attendant with her and was being paid salary of Rs. 2,800/- per month
upto March, 2006, Rs.3,200/- from April, 2006 to March, 2007 and after
April, 2007 to March, 2008 she was paid Rs. 3,500/- and from April,
2008 till the date of recording of her evidence she was being paid Rs.
4,000/- per month. Affidavit to this effect is Ex.PW6/A. PW6, Sunita,
further deposed that one more domestic help was working with family of
the injured for cleaning the house, washing clothes and cooking meals.
35. The appellant is an Advocate by profession and proved that she
was earning Rs.15,000/- per month from the practice. She was helping
her husband in court cases in addition to her own separate cases as she
was on panel of Insurance Companies. The documents to this effect
have been proved as Ex. P-72 to P-74. She has also proved the income
generated from her private practice, which she used to put in the FDRs in
her name and in the names of her children. To this effect an amount of
Rs.3,59,300/-, has been proved vide certificates Ex. P-76 to P-78 issued
by the Bankers.
36. Even as per the Workmen Compensation Act, 2011, income of a
graduate was Rs.8,814/-, whereas appellant is a triple Graduate (B.Sc.
B.Ed. and L.LB), M.Sc. PGDBA and Arts etc. Apart, she was looking
after the household of the family including teaching to her children.
37. It is proved on record that she was hospitalized for 86 days on five
different occasions. She is unable to live a normal life. The accident has
changed all script of her life. She needs an attendant to carry out her
daily chores.
38. As per the evidence Ex.PW5/A, on all aspects such as nature of
injuries, treatment, implants, conveyance, special diet, attendants, value
of services rendered by the members of the family, loss of her income,
value of services rendered in profession to her husband (the practicing
advocate), value of services rendered as house wife to the family and her
present condition etc. remained unchallenged and unrebutted as the
Insurance Company has failed to cross-examine the appellant on any of
the issues noted above.
39. Admittedly, the appellant is an Advocate. Due to the accident, her
entire movement has been restricted. The legal profession is an exerting
and demanding. One has to keep moving and running from one court to
another for attending the cases and from one office to another for
clientele. This accident has rendered the injured totally unfit to do any
kind of work personal or professional. Accordingly, the functional
disability of the appellant was assessed as 100%.
40. It is not in dispute that that appellant had suffered permanent
disability to the extent of 90% qua left upper and lower limbs. This fact
has been proved vide certificate Ex.PW1/A.
41. Dr. Binod Kalita, who had issued the aforesaid Disability
Certificate, deposed that the appellant unable to tie the knot
independently and the rest of the daily chore cannot be looked after by
her independently. However, while granting the compensation, Ld.
Tribunal has assessed 100% functional disability in relation to whole
body.
42. It is on record that after recording the evidence of the appellant on
01.06.2009, she had fallen down resulting in breakage of L2 vertebra
into three pieces. Dr. B.B. Choudhary stated that the fall was due to
„Gait-in coordination‟. According to R.P.Centre, AIIMS, injured who
was examined on 06.04.2011 assumed 40 to 75% visual disability.
43. The issue before this court is whether the accident victim is
entitled to get compensation for functional disability?
44. The parameters for assessing the compensation has been
prescribed by the Apex Court while considering the case of Rajesh and
Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE 563, Master
Malikarjun v. Divisional Manager, the National Insurance Company
Limited2013 (10)SCALE 668 and Rekha Jain (Supra).
45. The appellant met with an accident on 18.02.2005. She was 36
years of age on the date of accident. Ld. Tribunal deducted 50% from
her actual income towards personal expenses contrary to the settled law.
Hence, the Ld. Tribunal ought not to have deducted towards personal
expenses.
46. It is also proved on record that the appellant has been spending a
minimum of Rs.35,000/- (Rs.30,000/- at the time of evidence) on
medical expenses, which was not required prior to the accident.
47. Admittedly, the appellant received disability to the tune of 90%.
It is noted that no amount has been granted towards disfigurement of
body and expectation of life as non-pecuniary losses. She was a young
advocate and has proved her income to the tune of Rs.15,000/- per
month.
48. It is pertinent to mention here that in the case of Virender Singh
(Supra) the Apex Court awarded a sum of Rs.4,50,000/- towards non-
pecuniary damages for the accident took place in the year 1980. The
cost inflation index of Government of India from the year 1980-81 was
Rs.100/- and for the year 2011-12 was Rs.785/-. Thus, the value of
rupee on account of cost inflation index comes to Rs.785/-.
49. The appellant requires to be operated upon for removal of nails
and plates from radius and ulna bones and plastic surgeries of left hip up
to knee for which she was given an estimate of more than Rs.15,00,000/.
For her mobility, the appellant is required to spend huge amount on
conveyance as she has to visit hospital periodically for treatment, which
is still continuing.
50. I note, in the case of Rekha Jain (Supra), Ld. Tribunal awarded
Rs.2,00,000/- for the loss of amenities, pleasure of life and her inability
to attend social functions in future, which was inadequate. However, the
Apex Court enhanced the same to Rs.10,00,000/-.
51. It is not in dispute that the appellant remained admitted in the
hospital from 17.03.2005 to 27.04.2005. She was again admitted from
27.05.2005 to 13.06.2005. During her stay in the hospital, an operation
was performed on 30.05.2005 for post-traumatic degloving injury
debridement and skin grafting under GA and a large portion of skin from
her thigh was taken and grafted on her left hip. The appellant was again
remained admitted in the hospital from 22.06.2005 to 28.06.2005.
During her stay in the hospital, on 23.06.2005 an operation was
performed for plating and nailing of radius and ulna bones of left
forearm alongwith bone graft. The bone for grafting was taken from
right pelvic bone.
52. It is also on record that the appellant was referred to various
hospitals and accordingly taken treatment from Safdarjung Hospital,
AIIMS, Apollo, Sir Ganga Ram Hospital, LNJP, LBS and various other
places at Lucknow, Aligarh and even to Chennai.
53. The appellant has placed on record a certificate issued from
Apollo Hospital as Ex.P6 for her future surgery showing approximate
expenses as Rs.1,70,000/-. At the same time, she also placed on record
certificate Ex.P-64 issued by the same hospital for her future surgery for
removal of plates from forearms and a rough estimate of Rs.1,00,000/-
was given.
54. The appellant also examined PW6, Sunita who was working as an
attendant with her and was being paid salary of Rs. 2,800/- per month up
to March, 2006, Rs.3,200/- from April, 2006 to March, 2007, from April,
2007 to March, 2008 she was paid Rs. 3,500/- per month, and from
April, 2008 till date of her evidence she was being paid Rs. 4,000/- per
month.
55. The case in hand is under the welfare legislation. Rule of law is to
interpret the documents in favour of the victim. It is not in dispute that
the appellant was a practicing Advocate. She was on panel of Insurance
Companies. This profession is exerting and demanding. One has to
move and run from one court to another for attending the cases and from
one office to another to maintain her official work. The accident in
question has restricted the entire movement of the appellant. She has
become totally unfit to do professional or any kind of personal work as
well including sexual enjoyment with husband. Accordingly, Ld.
Tribunal has assessed the functional disability of the appellant as 100%.
56. It is relevant to note that the Apex Court in the case of N.
Manjegowda v. the Manager, the United India Insurance Co. Ltd.
2013 (13) SCALE 642 held as under:
"12. In a recent judgment in the case of Rekha Jain v.
National Insurance Co. Limited and Ors. : (2013) 8 SCC
389, this Court drew a very relevant distinction between
permanent disability which was found to be 30% and
functional disability which this Court held to be 100% on
account of serious disfigurement of the face of the
Appellant because it was bound to cause loss of career for
the Appellant who in that case was an actress in films/T.V.
features. Hence, it must be taken as a trite law that
functional disability of an accident victim requires
determination on the basis of nature of disability in the
light of the career or profession which he or she was
pursuing in life. It should not be computed mechanically
only on percentage of physical disability. In the present
case the Appellant has been found to suffer weakness of
four limbs. He has to work slowly and requires help in
climbing steps, cannot run, cannot write sharply and
speedily with his right hand. With his left hand he cannot
lock the shirt button and has difficulty in holding of spoon
for self-feeding. He was having partial sensory loss all
over his limbs and lacked proper coordination in all four
limbs. It is the medical opinion that for these reasons the
Appellant requires an assistant for daily routine work. In
view of aforesaid medical assessment of Appellant's
condition after sustaining injuries in the accident and in
the light of whole body disability of 50%, it would be
certainly very difficult for the Appellant to practice as an
Advocate and compete with others so as to command
confidence and acceptability of general clients. Unlike
many other professions, legal profession requires not only
sharp and focused mind but also good health and ability to
put in hard work within a limited time frame. The
requirement of impressing the client at the age of 36 is
much more. It is only when a young Advocate has built a
good impression and reputation, then in the evening of his
life he may continue to command professional work on the
basis of his acquired knowledge and reputation. A young
Advocate is bound to suffer huge professional loss on
account of injuries as have been sustained by the Appellant
and the condition in which the Doctor found him."
57. In view of above discussion and the settled law, the compensation
comes as under:
Sl. Heads Compensation Compensation
No. granted by Ld. granted by this
Tribunal Court
1. Medical expenses Rs. 5,00,000/- Rs. 5,00,000/-
2. Proposed future Rs. 3,00,000/- Rs.17,00,000/-
medical expenses
3. Domestic Rs. 1,00,000/- Rs.5,00,000/-
help/attendant
charges
4. Future medication, Rs. 2,00,000/- Rs.3,00,000/-
physiotherapy,
conveyance,
domestic
help/attendant
charges
5. Conveyance, Rs. 1,00,000/- Rs.1,00,000/-
boarding and
lodging charges
6. Special diet Rs. 1,00,000/- Rs.1,00,000/-
7. Future loss of Rs. 20,25,000/- Rs.40,50,000/-
income on account
of disability
8. Mental agony, pain Rs. 1,50,000/- Rs.3,00,000/-
and sufferings
9. Loss of amenities Rs. 1,50,000/- Rs.1,50,000/-
of life
10. Loss of Nil Rs.2,00,000/-
Expectation of life
11. Loss of Nil Rs.2,00,000/-
disfigurement
12. Depression and Rs. 1,50,000/- Rs.3,00,000/-
mental state
13. Matrimonial Rs. 1,00,000/- Rs.3,00,000/-
discomfort
Total Rs.38,75,000/- Rs.87,00,000/-
Resultantly, the total compensation is assessed at Rs.87,00,000/-.
58. Accordingly, Rs.48,25,000/- is enhanced (Rs.87,00,000 -
Rs.38,75,000).
59. The enhanced compensation shall carry interest at the rate of 7.5%
per annum from the date of filing of the claim petition till its realization.
60. The respondent / Insurance Company is directed to deposit the
enhanced compensation amount with the Registrar General of this Court
within a period of six weeks from today, failing which, appellant /
claimant shall be entitled for penal interest @ 12% per annum on
account of delayed payment.
61. On deposit, the Registrar General is directed to release the amount
in favour of the appellant / claimant in terms of the impugned award
dated 03.04.2010 passed by the learned Tribunal on taking necessary
steps by them.
62. In view of the above, the appeal is allowed.
SURESH KAIT, J
MAY 13, 2014
Sb/jg
