Vidhya vs Adesh Kumar Jain
2014 Latest Caselaw 4130 Del

$~A-5
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 03.09.2014

+     MAC.APP. 120/2009

      VIDHYA                                    ..... Appellant
                   Through      Mr.R.K. Dhawan and Ms.Richa, Advocates.

                   versus

      ADESH KUMAR JAIN                  ..... Respondent
              Through  Ms.Shantha Devi Raman, Mr.Mukul
                       Thakur and Mr.Anshul, Advocate for
                       R-2.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

                   ORDER

%                  03.09.2014
JAYANT NATH, J. (ORAL)

1. By the present appeal the appellant who was the claimant seeks to impugn the Award dated 22.09.2008 and seeks higher compensation which was based on a claim petition filed under Sections 166 and 140 of the MV Act, 1988.

2. The facts are that the appellant was crossing the road near Metro Station, Timarpur, Delhi when she was hit by an Indica Car driven by respondent No.1 said to be driven in a rash and negligent manner. She sustained grievous injuries all over her body and suffered fracture on the right leg and right arm. She was taken to Hindu Rao Hospital and thereafter

to St.Stephen Hospital for treatment. She remained hospitalised from 13.12.2006 to 18.12.2006.

3. Based on the evidence led by the parties, the Tribunal concluded that the accident took place due to the rash and negligent driving of the driver/ respondent No.1of the Indica Car.

4. On compensation the Tribunal awarded a total compensation of Rs.1,72,000/- with the following break-up.

       Medical Treatment                        Rs.5,000/-
       Conveyance & Special Diet                Rs.7,000/-
       Loss of Income                         Rs.20,000/-
       Loss of future prospectus              Rs.15,000/-
       Pain & Agony                           Rs.35,000/-
       Loss of earning capacity               Rs.72,000/-
       Future Treatment                       Rs.12,000/-
       Attendant Charges                        Rs.6,000/-
                   Total                     Rs.1,72,000/-

5. Learned counsel appearing for the appellant has strongly submitted that the compensation awarded is grossly inadequate. He submits that the compensation awarded for medical treatment of Rs.5,000/- and for future medical treatment of Rs.12,000/- is entirely erroneous and on the lower side. He also submits that the Tribunal has awarded inadequate amount for loss of earning capacity for which an amount of Rs.72,000/- is not commensurate. He has further submitted that loss of wages for five months based on minimum wages is also incorrect. He has also claimed enhancement of income as assessed by the Tribunal on account of future prospects which he submits were not taken into account.

6. A perusal of the Award shows that the Tribunal came to a conclusion while determining the quantum of compensation based on the evidence of

the appellant as PW-1. The appellant deposed that she had sustained injuries including fracture of right arm and right leg. She had placed on record the medical bills spent by her which are exhibited as Ex.PW-1/3 to Ex.PW-1/23 total of which approximately is Rs.3,800/-. The Tribunal has awarded Rs.5,000/- on account of medical treatment.

7. The Tribunal also noted that the appellant has mentioned that she was a house wife and in her testimony she also stated that she was also taking music tuitions and was earning Rs.10,000/- to Rs.12,000/- per month. She had stated that she had to give up her tuitions because of the injuries. The Tribunal however did not accept the evidence of the appellant as no proof of income was placed on record. Keeping in view that she was a house wife and her incapacity on account of fracture of arm and leg, the Tribunal accepted the minimum wages of a skilled worker which at the relevant time were Rs.3,800/- per month. Based on the same, the Tribunal granted to the appellant loss of wages for five months believing that she would not be able to do her household work for the period as she was under medical treatment which came to Rs.20,000/-.

8. On account of functional disability the Tribunal noted that the as per Dr. Ramakant Gupta, Senior Orthopaedic Surgeon, Hindu Rao Hospital she had suffered 12% permanent disability of the right upper limb and left lower limb. From the evidence on record, it was held that the disability of the whole body was 12%. Based on the same, the Tribunal using the multiplier of 13 awarded total compensation on account of loss of earning at Rs.71,136/- which is rounded off to Rs.72,000/-.

9. Reference may be had to the evidence of PW-1. As per her evidence she had been hospitalised for six days. There had a plaster put on for one

and half month. She has pointed out that she had done her M.A. (Music). She exhibited the degree of the Delhi University as Ex.PW1/26 and Ex.PW1/27. She has also pointed that she had her written examination for the post of music teacher and the examination certificate had been exhibited as Ex.PW-1/28. In her cross-examination, she admits that she is a house wife but she states that she was taking tuitions of music at her house and used to teach dance and harmonium to children. She further states that about 20-25 children were coming to her for classes and she had maintained a register. She has also admitted that medical expenses were borne under the CGHS Scheme since her husband is working in Delhi Police.

10. Reference may also be had to the testimony of PW-2 Dr.Ramakant Gupta, Senior Orthopaedic Surgeon, Hindu Rao Hospital. He has clearly opined that her disability is 12% in relation to right upper limb and left lower limb. He has exhibited the disability certificate as Ex.PW-1/28 in cross-examination in which he has assessed the disability of the whole body at 12%. PW-3-Dr.Shwetabh, Sr. Resident, St. Stephens Hospital has stated that to relieve her pain, the appellant would require to undergo an operation which would cost Rs.15,000/-.

11. In view of the above evidence, there is no material on record to show that the appellant was earning from tuitions or that she suffered loss of income on account of the injury. Self serving averment of the appellant that she was earning from tuitions appears to be self contradictory. At one place she submits that she was earning Rs.10,000/- to Rs. 12,000/- per month and at other place in cross examination she says that she was teaching about 20 to 25 children. Given the fees structure in Delhi, it is not conceivable that she would be giving tuitions to 20-25 students for Music and Harmonium

and be earning Rs.10,000/- per month. Even otherwise, there is no evidence to show any loss of income on account of the injury. In the absence of any other evidence on record, the evidence of PW-2 which states that the functional disability of the whole body is 12% has been rightly taken by the Tribunal and there are no reasons also to in any way disturb the findings of the Tribunal taking into account the minimum wages for a skilled labourer for computing loss of income on account of injury which has been assessed at Rs.72,000/-.

12. Evidence on record also justifies grant of Rs.5,000/- for medical treatment as the appellant has placed on record bills only worth Rs.3800/-. On future treatment PW-3 has proved a requirement of Rs.15,000/- and the Tribunal has awarded Rs.12,000/-. Again no fault can be found with the said finding of the Tribunal. One also cannot lose sight of the fact that the husband of the appellant is working for the Delhi Police and it is apparent fact as said by her in her cross-examination that medical expenses are taken care of by the employer of her husband.

13. However, this court vide order dated 09.03.2010 permitted the appellant to lead additional evidence regarding cost of future medical treatment. Based on the said order, she had filed her additional evidence in which she has pointed out that she would need a surgery at Indraprastha Apollo Hospital which would cost Rs.1,00,300/-. Appropriate estimate to that effect has been placed along with the affidavit. There was no material cross-examination on this averment made by respondent No.2 other than a question that was asked regarding availability of CGHS facility. The appellant admits that being the wife of an employee of Delhi Police she would be a beneficiary under the CGHS Scheme or from the employer of

her husband. In view of the evidence on record I award additional sum of Rs.1,10,000/- to the appellant for future medical expenses.

14. There is also some merit in the contention of the learned counsel for the appellant that while computing loss of dependency based on permanent disability of the appellant the Tribunal has accepted the minimum wages for a skilled labour but has not granted any enhancement on account of future prospects. Keeping in view the judgment of the Supreme Court in the case of Rajesh & Ors. vs. Rajbir Singh & Ors. (2013) 9 SCC 54 and the latest judgments in the cases of Smt.Savita vs. Bindar Singh & Ors. (2014) 4 SCC 505 and V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, the appellant being 42 years of age would be entitled to 30% future prospects.

15. As per the judgment of the Supreme Court in the case of Smt.Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., (2009) 6 SCC 121 where the claimant is 41-45 years of age, a multiplier of 14 is to be used. Hence, the Award of the Tribunal is modified and instead of multiplier of 13, a multiplier of 14 would be used.

16. The compensation on account of loss of earning capacity would now come to Rs.99,591/- [(Rs.3800 + 30%) x 12 x 14 x 12%]. Total compensation would be as follows:-

       Medical Treatment                        Rs.5,000/-
       Conveyance & Special Diet                Rs.7,000/-
       Loss of Income                         Rs.20,000/-
       Loss of future prospectus              Rs.15,000/-
       Pain & Agony                           Rs.35,000/-
       Loss of earning capacity               Rs.99,591/-
       Future Treatment                      Rs.1,22,000/-
       Attendant Charges                        Rs.6,000/-
                   Total                     Rs.3,09,591/-

17. It is however made clear that a sum of Rs. 1,10,000/- would be released to the appellant for future medical expenses only when she files an affidavit stating that she is not entitled to receive this amount from the CGHS Scheme or the employer of her husband as beneficiary of the said scheme. The affidavit will also give the proposed date of the surgery proposed to be carried out, name of the proposed Surgeon and the name of the hospital.

18. The appellant will file the affidavit within two weeks from today. The respondent No.2 will thereafter deposit the additional compensation as directed by this court before the Registrar General of this High Court within four weeks. The amount awarded on account of future prospects shall be deposited along with pendente lite interest @ 7.5% from the date of filing of the claim till the date of deposit. There will be no pendente lite interest on future medical cost as awarded today. On deposit the amount shall be released to the appellant. However, the sum of Rs.1.10 lacs will be released only after the concerned Registrar is satisfied that the Affidavit filed by the appellant is in satisfaction of the directions of this court.

19. Appeal stands disposed of.

JAYANT NATH, J SEPTEMBER 03, 2014 rb