Delhi High Court
Reshampal vs Laxman Singh Daroga & Ors on 22 September, 2014
$~A-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22.09.2014
+ MAC.APP. 289/2012
RESHAMPAL ..... Appellant
Through Ms.Rupika Singh, Advocate for
Mr.Navneet Goyal, Advocate.
versus
LAXMAN SINGH DAROGA & ORS ..... Respondents
Through Mr.Rajat Brar, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH\
JAYANT NATH, J. (ORAL)
1. The present appeal is filed seeking enhancement of compensation as
given by the Award dated 19.12.2011. The claim petition was filed by the
appellant under Sections 166 and 140 of the Motor Vehicles Act, 1988.
2. The brief facts are that on 07.06.2008 the appellant/claimant along
with the driver Subhash was going to Rohtak from Muzaffar Nagar by
truck, driven by Subhash. At around midnight on Shamli-Panipat Road, the
driver stopped the truck alongside the road to answer the call of nature and
the appellant was cleaning the truck from inside. A trailer loaded with iron
sheets said to be driven by its driver in a rash and negligent manner came
from Panipat side and hit the stationary truck from the right side. As a result
of the accident the body of the truck was badly damaged. The appellant
suffered crush injuries of both the legs.
3. Based on the evidence on record the Tribunal concluded that the
accident took place due to the rash and negligent driving of the driver of the
trailer.
4. On compensation the Tribunal awarded the following compensation:-
Medicines and medical treatment Rs.97,100/-
Loss of wages Rs.30,000/-
Pain and Suffering Rs.50,000/-
Loss of earning capacity due to disability Rs.10,08,000/-
Loss of amenities of life Rs.50,000/-
Conveyance Rs.8,000/-
Special Diet Rs.8,000/-
Total Rs.12,51,100/-
5. Learned counsel appearing for the appellant has made various
submissions to submit that the Award is inadequate and has ignored many
aspects. He firstly submits that the appellant had spent more than
Rs.2,00,000/- on medical expenses and yet the Tribunal has only granted a
sum of Rs.97,100/- for reimbursement of medicines and medical treatment.
He secondly submits that no amount has been given for future medical
treatment including for artificial limb/wheelchair. He thirdly submits that the
appellant has assessed 100% disability on the lower legs and yet the
Tribunal has assessed functional disability at 70% and awarded a sum of
Rs.10,08,000/- for loss of earning capacity. It is urged that there is no
movement below the knees and hence, the functional disability is actually
100%. It is lastly urged that the compensation awarded for pain and
sufferings of Rs.50,000/- is on the lower side.
6. A perusal of the Award shows that the appellant has suffered
amputation above left knee and amputation below right knee and the
Tribunal noted that he has suffered 100% disability as per the disability
certificate. The Tribunal further noted that the appellant was 35 years of age
on the date of the accident and was working as a helper/assistant driver in
the truck and getting a salary of Rs. 4,500/- per month. He has studied up to
10th standard. The Tribunal awarded Rs.97,100/- based on the medical bills
placed on record. On loss of wages the Tribunal accepted the evidence of
PW-2 Promod Kumar who proved the employment and salary record of the
appellant and had stated that he was getting a salary of Rs.4,500/- per month
besides Rs.100/- per day for food and washing allowance. The Tribunal
accepted this evidence and added 30% for future prospects and computed
the salary at Rs.7,500/- per month. The Tribunal also assessed the functional
disability at 70% for the entire body and taking into account the salary of
Rs.7,500 per month and a multiplier of 16, loss of earning capacity was
assessed at Rs.10,08,000/-.
7. I will first deal with the first submission of the appellant pertaining to
expenses incurred of Rs.2,00,000/- on medical treatment. PW-1 the
appellant in his affidavit by way of evidence stated that he incurred a
medical expense of Rs.2,00,000/- on medical treatment. The medical bills
and prescription slips were exhibited as Ex.PW-1/11 to Ex.PW-1/68. The
Tribunal has awarded Rs.97,100/- as reimbursement of the medical expenses
incurred. However, if we total the medical bills placed on record, namely,
PW1/11 to PW1/68 the total comes to Rs.1,77,390/-. The details of the
calculation are as follows:-
Sl. No. Exhibits Nos. Amount
1. Ex.PW-11 Rs.2,100/-
2. Ex.PW-11A Rs.56,060/-
3. Ex.PW-12 &13 Rs.2,011/-
4. Ex.PW-14 Rs.1,494/-
5. Ex.PW-15 & 16 Rs.3,106/-
6. Ex.PW-17 & 18 Rs.2,490/-
7. Ex.PW-19 Rs.209/-
8. Ex.PW-20& 21 Rs.1,958/-
9. Ex.PW-22 & 23 Rs.2,654/-
10. Ex.PW-24 Rs.120/-
11. Ex.PW-25 & 26 Rs.1614/-
12. Ex.PW-28 Rs.814/-
13. Ex.PW-29 Rs.2,090/-
14. Ex.PW-30 Rs.6,500/-
15. Ex.PW-31 Rs.2,000/-
16. Ex.PW-32 Rs.1,808/-
17. Ex.PW-33-38 (no amount)
18. Ex.PW-39 Rs.500/-
19. Ex.PW-40 Rs.600/-
20. Ex.PW-41 Rs.500/-
21. Ex.PW-41A Rs.1,373/-
22. Ex.PW-42 Rs.1,304/-
23. Ex.PW-43 Rs.231/-
24. Ex.PW-44 Rs.301/-
25. Ex.PW-45 Rs.2,583/-
26. Ex.PW-46 Rs.1,718/-
27. Ex.PW-47 Rs.244/-
28. Ex.PW-48 Rs.386/-
29. Ex.PW-49 Rs.286/-
30. Ex.PW-50 Rs.796/-
31. Ex.PW-51 Rs.10,000/-
32. Ex.PW-52 Rs.26,000/-
33. Ex.PW-53 Rs.1,000/-
34. Ex.PW-54 Rs.11,500/-
35. Ex.PW-55 Rs.500/-
36. Ex.PW-56 Rs.1,060/-
37. Ex.PW-57 Rs.7,000/-
38. Ex.PW-58 Rs.7,000/-
39. Ex.PW-59 Rs.4,000/-
40. Ex.PW-60 Rs.2,000/-
41. Ex.PW-61 Rs.5,000/-
42. Ex.PW-62 Rs.249/-
43. Ex.PW-63 Rs.1,500/-
44. Ex.PW-64 Rs.449/-
45. Ex.PW-65 Rs.50/-
46. Ex.PW-66 Rs.150/-
47. Ex.PW-67 Rs.1,500/-
48. Ex.PW-68 Rs.50/-
Total Rs. 1,77,390/-
8. Hence, in my opinion it is a fit case where the compensation made on
account of reimbursement for medicines and medical treatment be enhanced
from Rs.97,100/- to Rs.1,77,390/-
9. On the second issue of future medical treatment and need for artificial
limb/wheelchair the only averment made in the affidavit by way of evidence
by the claimant is that he cannot move/walk without any escort or do his
daily routine work. He needs two assistants for his daily routine work. There
is no cross-examination by any of the parties on this averment that has been
made.
10. PW-3 Dr. Lokeshwar Sharma, Senior Consultant, Orthopaedic
Surgeon, District Hospital, Musaffarnagar, U.P. has proved the disability
certificate as Ex.PW-1/10. He states that the patient has 100% disability and
has suffered amputation above left knee and amputation below right knee.
There is no cross-examination on these aspects. He has also not made any
averment pertaining to future medical treatment.
11. Apart from this evidence,PW-2 Promod Kumar who is the employer
has given evidence pertaining to the employment of the appellant.
12. Hence what follows is that the appellant has failed to bring any
evidence to show the need and cost of artificial limb.
13. However, the need of artificial limb is obvious though no estimate of
cost has been given. In my opinion judicial notice can be taken that he has
suffered amputation of both legs at around the knee. Accordingly, I award a
sum of Rs.2,00,000/- to the appellant for the artificial limb. This amount will
be released to the appellant only on receipt of a proper estimate from a
reputed supplier of artificial limbs. The payment will accordingly be made
by the respondent Insurance Company directly to the supplier.
14. On functional disability given the nature of disability suffered by the
appellant in the evidence of PW-1 in my opinion there is no need to interfere
with the Award of 70% functional disability as assessed by the Tribunal.
The Tribunal has correctly also assessed the income of the deceased.
15. However, the Tribunal has failed to give any compensation for
attendant charges. It is on record in the evidence of PW-1 that he needs
assistance for the purpose of walking. Accordingly I Award a sum of
Rs.2,00,000/- for attendant charges inasmuch as it is apparent from the
evidence on record that the appellant would need the help of an assistant for
carrying out his daily activities and other functions.
16. Similarly on pain and suffering, it is on record that he has suffered
amputation around the knee of both legs. The appellant was hospitalized
from 07.06.2008 to 10.06.2008. Given the nature of suffering, I increase the
compensation on account of pain and suffering to Rs.1,00,000/- from
Rs.50,000/-.
17. Accordingly, the total compensation would now read as under :
Medicines and medical treatment Rs.1,77,390/-
Loss of wages Rs.30,000/-
Pain and Suffering Rs.1,00,000/-
Loss of earning capacity due to disability Rs.10,08,000/-
Loss of amenities of life Rs.50,000/-
Conveyance Rs.8,000/-
Special Diet Rs.8,000/-
Attendant charges Rs.2,00,000/-
Total Rs.15,81,390/-
18. Respondent No.3 is directed to make additional payment within four
weeks from today with pendent lite interest of 7.5% per annum on the
additional amount. On receipt of the amount, 50% be released to the
appellant and balance amount be kept in a fixed deposit for five years. The
appellant is permitted to withdraw periodical interest from the said fixed
deposit. On expiry of the period of five years, the fixed deposit amount be
released to the appellant.
19. The total compensation as stated above does not include the award of
Rs.2 lac as the expense for artificial limb. That amount is not to be
deposited by the respondent No.3 before the Court. The payment shall be
made directly to the supplier of artificial limb on fulfilment of conditions
stated above. No pendent lite interest shall be payable on the enhanced sum
of Rs.2 lac. However, it is clarified that if for some reason the respondent
No.3 needlessly delays in releasing payment to the appellant for the artificial
limb on receipt of proper estimate the appellant is free to approach this
Court for appropriate directions including directions for cost and additional
interest on the said respondent No.3.
20. The appeal stands disposed of.
JAYANT NATH, J
SEPTEMBER 22, 2014
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