Delhi High Court
Vakeel Dass vs Surender Singh & Ors on 24 September, 2014
$~A-16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24.09.2014
+ MAC.APP. 685/2011
VAKEEL DASS ..... Appellant
Through Mr.O.P.Mannie, Advocate
versus
SURENDER SINGH & ORS ..... Respondent
Through Ms.Manjusha Wadhwa and Ms.Arpan
Wadhwan, Advocates for
R-3/Insurance Company
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. The present appeal is filed seeking enhancement of the compensation as
per Award dated 27.4.2011.
2. The brief facts are that the appellant on 21.09.2008 was travelling on a
blue line bus. When the bus reached Ring Road near Ashok Vihar Red Light
bus stand the driver stopped the bus. The appellant started alighting from the
bus. The driver of the bus suddenly moved the bus with a jerk which resulted in
the appellant falling down and receiving severe injuries. The appellant suffered
65% permanent disability in relation to right leg below the knee.
3. Based on the evidence on record the Tribunal awarded the following
compensation:-
1. Compensation for pain 80,000/-
and sufferings
2. Compensation for 2230/-
expenses incurred on
medical treatment
3. Compensation for future 1,20,800/-
treatment
4. Compensation for special 4,000/-
diet
5. Compensation for 5,000/-
conveyance charges
6. Compensation for 12,000/-
attendant charges
7. Compensation for loss of 55,500/-
income
8. Compensation for loss of 1,06,560/-
earning capacity
9. Compensation for loss of 50,000/-
enjoyment of amenities of
life and general damages
10. Compensation on account 50,000/-
of inconvenience,
hardship, discomfort,
disappointment,
frustration and mental
stress in life
Total 4,86,090/-
4. Learned counsel appearing for the appellant seeks enhancement of
compensation. He firstly submits that having assessed the income of the
appellant based on minimum wages for an unskilled worker as Rs.3,700/- per
month the Tribunal has assessed loss of future earning capacity based on the
said figure without enhancing the same for future prospects. Secondly, it is
urged that the Tribunal has awarded Rs.1,20,800/- for an artificial limb. It is
submitted that the limb has a life span of 5-6 years and hence thereafter
requires replacement. Appropriate compensation for the same is also sought
for. Further, additional compensation is sought for disfigurement relying upon
the judgment of the Supreme Court in S.Manickam vs. Metropolitan
Transport Corporation Ltd., 2013 ACJ 1935. It is next urged that
compensation for non-pecuniary loss is also given on the lower side. Lastly,
learned counsel submits that the appellant was working as a Raj Mistri which is
a skilled worker and accordingly minimum wages for a skilled worker would
be appropriate to compute loss of future earnings.
5. Learned counsel appearing for the respondent on the other hand
submitted that the age of the appellant has been wrongly taken and that as per
the ration card he was 40 years and not 35. Hence, it is urged that the
appropriate multiplier would be 15 and not 16. It is secondly submitted that
there is no proof of his functional disability inasmuch as there is no proof to
show the kind of work being done by the appellant.
6. As far as the contention regarding future prospects is concerned, a
perusal of the Award shows that the Tribunal has not granted any future
prospects. The Tribunal has assessed the functional disability at 15%. Having
assessed the income at Rs.3,700/- per month the Tribunal noted that the age of
the appellant as per the claim petition is 35 years. The Tribunal has adopted a
multiplier of 16 and accordingly granted Rs.1,06,560/- for future loss of
earning on account of disability. In my view, keeping in view the judgment of
the Supreme Court in V.Mekala vs. M.Malathi & Anr., 2014 ACJ 1441, it
would be appropriate that compensation be enhanced keeping into account the
age of the claimant i.e. 35 years. The assessed income of Rs.3,700/- per month
would have to be enhanced by 50% on account of future prospects while
computing loss of future income.
7. In case of Rajesh & Ors. vs. Rajbir Singh & Ors.(2013) 9 SCC 54, the
Supreme Court held that in the case of self employed or those on fixed wages,
when the victim is below 40 years an addition of 50% should be made in the
wages for the purpose of computing loss of future earnings.
8. In the case of Smt.Savita vs. Bindar Singh & Ors., (2014) 4 SCC 505,
the Supreme Court was of the view that in the case of self employed or those
engaged on fixed wages, 30% increase in income over period of time would be
appropriate.
9. Coming to the contention of an artificial limb, the Tribunal relied upon
the evidence of PW-5 Ms.Lakshita. She had proved a quotation from Endolite
for below knee Prostehtist. Based on the same, the Tribunal had awarded
Rs.1,20,800/- to the said effect. A perusal of the evidence shows that PW-5 in
her examination-in-chief has said that the life of an artificial fitment is about 5
to 6 years and it also requires repairs of component of the artificial limb as and
when required.
10. PW-4 the appellant in his affidavit by way of evidence also states that the
artificial limb requires repairs after 2-3 years and would require replacement
after 8-10 years.
11. The evidence regarding the life of an artificial limb is extremely sketchy
and not reliable. It would have been appropriate if a doctor was examined to
elaborate in detail the kind of artificial limb required, its life span and the
approximate expenditure to be incurred on its repair. However, it is apparent
that the artificial limb, cost of which has been awarded by the Tribunal would
require repairs over a period of time. I award a sum of Rs.50,000/- to the
appellant for repairs of the said artificial limb.
12. As far as the issue of disfigurement is concerned, reference may be had
to the judgment of S.Manickam vs. Metropolitan Transport Corporation Ltd.
(supra). That was also a case where the claimant was alighting from a bus
owned by Metropolitan Transport Corporation Ltd. Due to sudden movement
of the bus the appellant fell down and the rear wheel of the bus rammed over
his right leg. His right leg below knee was amputated. In these facts the
Supreme Court upheld the Award of Rs.1,00,000/- by the Tribunal under the
head of permanent disability. In view of the above judgment, I award
Rs.1,00,000/- to the appellant on account of disability suffered in the facts and
circumstances of this case.
13. I will now deal with the next submission of the appellant i.e. that the
minimum wages for a skilled worker would be applicable. The evidence of
PW-4 shows that in his affidavit by way of evidence he has merely said that he
was working as a Raj Mistri and earning Rs.7,500/- per month. There is no
elaboration of the duration of his work, kind of projects that he is working and
details of his past experience etc.
14. In view of the nature of evidence led it is not possible to conclude
regarding the nature of work being done by the appellant. No grounds are
made out to modify the assessment of income as fixed by the Tribunal.
15. Coming to the issue of non pecuniary damages the Tribunal has awarded
Rs.80,000/- as compensation for pain and sufferings, Rs.50,000/- as
compensation for loss of enjoyment and loss of amenities of life and another
Rs.50,000/- for inconvenience, hardship and discomfort. It is on record that the
right leg below the knee of the appellant has been amputated. He was admitted
in hospital from 21.9.2008 to 25.9.2008, 4.10.2008 to 20.11.2008 and
24.9.2009 to 5.10.2009. He has visited the OPD of the hospital for regular
check-ups on various occasions. In the accident he had suffered various injuries
like degloving injury on the foot (right ankle), bones and tendons exposed and
split skin grafting (SSG) was applied on the right foot.
16. In the light of the above injuries and the prolonged treatment in hospital,
I enhance the compensation for pain and suffering from Rs.80,000/- to
Rs.1,50,000/-. Similarly, I enhance the compensation for loss of enjoyment and
amenities of life from Rs.50,000/- to Rs.1,00,000/-.
17. The total compensation would now read as under:-
1. Compensation for pain 1,50,000/-
and sufferings
2. Compensation for 2230/-
expenses incurred on
medical treatment
3. Compensation for future 1,20,800/-
treatment
4. Compensation for special 4,000/-
diet
5. Compensation for 5,000/-
conveyance charges
6. Compensation for 12,000/-
attendant charges
7. Compensation for loss of 55,500/-
income
8. Compensation for loss of 1,06,560/-
earning capacity
9. Compensation for loss of 1,00,000/-
enjoyment of amenities of
life and general damages
10. Compensation for the 1,00,000/-
disability suffered
11. Compensation for repairs 50,000/-
for the artificial limb
11. Compensation on account 50,000/-
of inconvenience,
hardship, discomfort,
disappointment,
frustration and mental
stress in life
Total Rs.7,56,090/-
18. Respondent No.3/insurance company shall deposit the additional
compensation amount as directed by this court before the Registrar General of
this Court alongwith interest @ 7.5% per annum from the date of filing of the
claim petition till deposit in Court. However, no interest is payable on a sum of
Rs.50,000/- to be paid for future expenses i.e. repair of artificial limb. On
receipt of the said sum, the additional compensation amount shall be released to
the appellant less the sum of Rs.50,000/- which has been awarded for repair of
the artificial limb. It is clarified that this sum of Rs.50,000/- shall be kept in a
fixed deposit for a period of three years and shall be released to the appellant
after three years alongwith accumulated interest.
19. Appeal stands disposed of.
JAYANT NATH, J
SEPTEMBER 24, 2014
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