Sukhveer Singh vs Hoshiyar Singh & Ors
2014 Latest Caselaw 5653 Del

$~5
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Date of decision: 11.11.2014
+     MAC.APP. 447/2012
      SUKHVEER SINGH                                     ..... Appellant
                   Through            Mr. S.N. Parashar, Advocate

                          versus

      HOSHIYAR SINGH & ORS                              ..... Respondents
                   Through            Mr. R.C. Mahajan, Advocate for R-3

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

      JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the appellant who was the claimant before the Tribunal seeking enhancement of the compensation as awarded by the Tribunal vide award dated 14.10.2011.

2. The appellant filed the claim petition under Sections 140/166 of the MV Act, 1988.

3. On 05.08.2009, after completing his duty, the appellant was returning to his house on his motorcycle. While passing through the railway flyover Meet Nagar on Wazirabad Road, appellant's vehicle was hit by a Maruti Esteem car. The said vehicle was driven in a rash and negligent manner. The appellant fell down on the road and sustained multiple injuries. He suffered multiple fractures on his right leg from the thigh to lower portion of the leg due to which two plates with screw were inserted in his leg and one plate with screw was also inserted on his right

hand.

4. The appellant suffered shortening of the right leg by two and half inches. As per the disability certificate, he suffered permanent disability to the extent of 90% on the right lower leg.

5. Based on the above evidence on record, the Tribunal granted a total compensation of Rs.4,87,641/-, details of which are as follows:-

(A) PECUNIARY DAMAGES

(i) Expenses relating to treatment, hospitalisation, medicines,transportation, nourishing food, and miscellaneous expenditure Rs.2,17,406/-

(ii) Seven months forced medical leave at the rate of Rs.13,605/- per month Rs. 95,235/-

(iii) Future medical expenses Rs. 25,000/-

(B) NON-PECUNIARY DAMAGES

(iv) Damages for pain, suffering and trauma as a consequence of the injuries Rs.1,00,000/-

(v) Loss of amenities (and/or loss of prospects of marriage). Rs. 50,000/-

(vi) Loss of expectation of life (shortening of normal longevity). Rs. NIL

TOTAL Rs.4,87,641/-

6. This was later amended on account of a clerical error and the compensation was enhanced to Rs.6,50,901/- as the compensation for seven months was actually for one year and seven months i.e. nineteen

months which was computed as Rs.2,58,495/-.

7. The Tribunal in its award noted that total medical expenditure of Rs.10,34,872/- was incurred by the appellant, out of which, Rs.9,40,989/- was paid by the Delhi Police. The Tribunal noted that the appellant was a Head Constable in the Delhi Police and had no loss of income.

8. Learned counsel appearing for the appellant seeks enhancement of compensation on two grounds. He firstly submits that the evidence of PW 6 Dr. Vinod Kumar Sharma shows that he had performed 290 dressings and charged Rs.359 per dressing. It is urged that these expenses incurred by the appellant have not been reimbursed to the appellant. It is further urged that the compensation for non- pecuniary damages is on the lower side as the appellant has suffered from various injuries. It is lastly urged that the appellant has suffered in his professional career as there are no chances of getting any promotion in Delhi Police.

9. Coming to the reimbursement of dressing charges, I may look at the evidence of PW 6, Dr. Vinod Kumar Sharma. He states that a total of 290 times he has done the dressings for the appellant and that he had to charge Rs.350/- per dressing. In his cross-examination, he confirms that he has not issued any receipts for his charges. He confirms that dressings have to be done every 24 hours. He further admits that the medicine solution which was applied to the appellant was easily available in the market.

10. There appears to be no reason as to why dressings have been done daily and was done 290 times. There is nothing on record to show this.

Further, a readily available medicine is being applied. There are no reasons why this type of dressing the appellant could not do himself. Accordingly, there is no reason to interfere with the award on this aspect.

11. As far as loss of promotional chances are concerned, this Court in the case of Vikas Kumar vs. Sunit Kumar and Anr, MAC App. 599/2013 dated 27.08.2014 relying upon an earlier judgment of this Court in National Insurance Co. Ltd. vs. Harbans Singh and Ors., MAC App. 394/2011 dated 28.03.2014 and the judgment of Punjab and Haryana High Court in the case of National Insurance Co. Ltd. vs. Rajbir Singh and Ors. 2012 ACJ 1826 held as follows:-

"12.Being a uniform force, judicial notice of the fact can be taken that given the condition of the appellant and his being physically unfit, in all probabilities chances of any promotion in Delhi Police are quite remote. In these circumstances, it would be appropriate that some compensation be awarded to the appellant on account of his loss of pay due to loss of promotion chances.

13. The Tribunal has assessed the income of the appellant on the date of the accident as Rs.12,822/- per month. The permanent physical disability of the appellant has been assessed as 86% in relation to his left lower limb. In the facts and circumstances his functional disability is taken as 50%.

14. Keeping in view the above factors, the loss of income on account of functional disability would come to Rs.12,822 x 50% x 12 x 17=13,07,844/-. 50% of this in the facts of this case can be taken as loss of income due to loss of promotion chances. The total loss of income on account of loss of promotion would be Rs.6,53,922/-."

12. In view of the above judgments, in my opinion, keeping in view the fact that the appellant is 40 years of age and retirement age is 60 years, there would be a loss of income to the appellant. This Court in the case of G.S.Bhandari vs. Nirmal Singh & Ors. in Mac.App.No.220/2007 dated 18.09.2014, which was a case of a Major in the Army suffering from disability, this Court has assessed the loss of income due to promotion chances at Rs.8 lacs.

13. However, on facts the present case will be a little different inasmuch as the appellant is already a Head Constable. In Vikas Kumar vs. Sunit Kumar & Anr. (supra), the claim petition was filed by a Constable in Delhi Police. Thus, the chances of promotion to the higher post of Head Constable had been reduced. The next promotion here in this Court would be Assistant Sub-Inspector which will take considerable time.

14. Accordingly, I assess the loss of income due to disability (loss of promotion) at 20%. The loss of income on calculation amounts to Rs.13,605 x 12 x 20/100 x 14 = 4,57,128/-.

15. Coming to non-pecuniary damages, the appellant had summoned the service report which was produced by Head Constable PW 3 Mukesh and Constable Umesh Kumar R3W2. As per the said evidence and the said witness, the appellant has been on rest from 05.08.2008 to 09.03.2010. PW8, Dr. Ajay Pawar has stated that he had performed five operations upon the appellant in Kailash Nursing Home. He has also stated that there is shortening of right leg by two and half inches which is permanent and that the appellant would be required to wear specially

designed shoes throughout his life. As per the disability certificate, Ex.PW9/A, the disability suffered by the appellant is 90% permanent locomoter impairment in relation to his right lower limb and has a non- progressive condition.

16. In the light of the above facts and circumstances, I enhance the compensation for the loss of amenities from Rs.50,000/- to Rs.1 lac.

17. I also award an additional sum of Rs.50,000/- for conveyance.

18. Total compensation would now be as follows:-

(A)PECUNIARY DAMAGES

(i)Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure Rs.2,17,406/-

(ii)Nineteen months forced medical leave at the rate of Rs.13,605/- per month Rs.2,58,495/-

(iii)Future medical expenses Rs. 25,000/-

(iv)Loss of income due to disability Rs.4,57,128/-

                   (loss of promotions)
           (C)NON-PECUNIARY DAMAGES
                   (iv)Damages for pain, suffering
                   and trauma as a consequence
                   of the injuries                           Rs.1,00,000/-
                   (v)Loss of amenities (and/or loss
                   of prospects of marriage).               Rs.50,000/-
                   (vi)Loss of expectation of life
                   (shortening of normal longevity).        Rs. NIL
                   (vii) Conveyance                         Rs.50,000/-


                                     TOTAL             Rs.11,58,029/-

19. Respondent No.3 will deposit the additional compensation amount along with interest @ 7.5% per annum from the date of filing of the claim petition till deposit. The amount be deposited with the Registrar General of this Court.

20. 50% of the additional compensation be released to the appellant. The balance amount be put in a Fixed Deposit for a period of five years. Quarterly interest would be payable to the appellant on the said Fixed Deposit.

21. The appeal stands disposed of.

JAYANT NATH, J

NOVEMBER 11, 2014 RB