Delhi High Court
Naveesh Tejpal Alias Kittu Tejpal vs Kunwar Alias Minty Tejpal & Anr. on 10 April, 2015
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 10th April, 2015
+ MAC.APP.480/2008
NAVEESH TEJPAL ALIAS KITTU TEJPAL
..... Appellant
Through: Mr. Inder Tejpal, Advocate
with Mr. Mayank Wadhwa,
Advocate
versus
KUNWAR ALIAS MINTY TEJPAL & ANR.
..... Respondents
Through: Mr. Salil Paul, Advocate with
Mr. Sahil Paul, Advocate for
Respondent no.2
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. This appeal is for enhancement of compensation of
Rs.3,57,400/- awarded by the Motor Accident Claims Tribunal
(the Claims Tribunal) in favour of the Appellant for having
suffered grievous injuries in a motor vehicular accident which
occurred on 20.03.1993.
2. A claim petition under Section 166 of the Motor Vehicles Act,
1988 (the Act) was filed by the Appellant against the
Respondents with the allegation that on 20.03.1993, the
Appellant was travelling in a Maruti Gypsy bearing no.DAE-
1861 which was being driven by Respondent no.1. It was the
case of the Appellant that the vehicle was driven in a rash and
negligent manner by Respondent no.1 as a result of which it
collided against a pavement and turned turtle. The Appellant
became unconscious and was immediately removed to All India
Institute of Medical Sciences (AIIMS). As per PW-4 Dr. A.K.
Mahopatra from AIIMS, the Appellant had suffered head injury
resulting in a clot in the brain. He remained admitted in AIIMS
from 21.03.1993 to 23.04.1993. The Appellant regained
consciousness and was able to understand a few things.
Consequently, he was discharged from the Hospital. It was
further the case of the Appellant that at the time of the accident
he sustained serious head injury and was found to be suffering
from Post Traumatic Psychosis. His Idea Score as per the
Disability Certificate dated 18.01.2005 was 14 which reflected
global disability to the extent of 71% according to Indian
Disability Evaluation and Assessment Scale (IDEAS).
3. The Appellant pleaded before the Claims Tribunal that at the
time of the accident, he was a student of 11th standard in Bal
Bharti Air Force School. He had a very good academic record,
he was a member of the cricket team of the school, he was a
good swimmer, was an NCC cadet and a Sargent. He had
bright future prospects and because of his head injury he was
permanently crippled for his life, making him dependant on
others throughout his life. The Appellant claimed a total
compensation of Rs.12,00,000/- stating that during his indoor
treatment in AIIMS, he had to engage private nurses for both
day and night @ Rs.500/- to Rs.550/- per day respectively. The
Appellant further claimed that he had to engage a private nurse
for a period of four months @ Rs.250/- per day since July,
1993. He also had to engage an attendant @ Rs.800/- per
month. During appeal, it came on record that the Appellant was
working as a photographer by hobby and not working for gain.
It also came on record that the Appellant since got married and
was having a child. The Claims Tribunal declined to grant any
sum towards reimbursement of Rs.2,00,000/- towards medical
bills alleged to have spent on the treatment. The Claims
Tribunal observed that though PW-2 testified to spent
Rs.2,00,000/- on the treatment of his son but he failed to
produce any bills on record in support of the same. Even
otherwise, PW-2 admitted himself to be in Government Service
and was thus entitled to reimbursement of the said expenditure
including purchase of medicines incurred on the treatment. The
Claims Tribunal on the basis of Certificate Ex.PW5/A held that
the Appellant suffered from permanent disability to the extent
of 75% and on the notional income of Rs.15,000/- per annum
awarded a compensation of Rs.1,70,400/- towards loss of
earning capacity.
4. The overall compensation awarded by the Claims Tribunal is
tabulated hereunder:
Sl. Compensation under various Awarded by the
Heads Claims Tribunal
No. (in Rs.)
1. Pain and Suffering and Loss of 80,000/-
Amenities of Life
2. Loss of Studies and Career 50,000/-
Prospects
3. Permanent Disability 1,70,000/-
4. Attendant Charges 24,000/-
5. General and Special Damages 25,000/-
6. Conveyance and Special Diet 8,000/-
TOTAL 3,57,400/-
5. It is urged by the learned counsel for the Appellant that the
compensation awarded is too niggardly and low. On account of
serious brain injury, the Appellant is unable to carry out any
work at all and therefore, loss of earning capacity to the extent
of 100% on potential income of the Appellant ought to have
been granted as against the notional income of Rs.15,000/- per
annum. It is further stated that the compensation towards
nursing care, conveyance and special diet and pain and
suffering and loss of amenities of life is very low.
6. On the other hand, the learned counsel for Respondent no.2
submits that the compensation awarded is just and reasonable
and does not call for any interference.
7. In the absence of any appeal filed by the Respondents, the
finding on negligence has attained finality. The question that
remains to be addressed is the quantum of compensation.
8. Section 166 of the Motor Vehicles Act, 1988 (the Act) enjoins
payment of just compensation. In General Manager, Kerala
Road Transport Corporation, Trivandrum v. Susamma Thomas
& Ors., (1994) 2 SCC 176, the Supreme Court held as under: -
"5......The determination of the quantum must answer
what contemporary society "would deem to be a fair sum
such as would allow the wrongdoer to hold up his head
among his neighbours and say with their approval that
he has done the fair thing". The amount awarded must
not be niggardly since the law values life and limb in a
free society in generous scales'. All this means that the
sum awarded must be fair and reasonable by accepted
legal standards."
9. In Arvind Kumar Mishra v. New India Assurance Company
Limited, (2010) 10 SCC 254, the Supreme Court dealt with the
case of disability of an engineering student. The Supreme Court
observed that while awarding compensation in personal injury
cases, an attempt should be made to put the injured in the same
position as he was insofar as money is concerned. In para 9 of
the report, the Supreme Court held as under:
"9. We do not intend to review in detail state of
authorities in relation to assessment of all damages for
personal injury. Suffice it to say that the basis of
assessment of all damages for personal injury is
compensation. The whole idea is to put the claimant in
the same position as he was insofar as money can.
Perfect compensation is hardly possible but one has to
keep in mind that the victim has done no wrong; he has
suffered at the hands of the wrongdoer and the court
must take care to give him full and fair compensation for
that he had suffered."
10. In Nizam‟s Institute of Medical Sciences v. Prasanth S.
Dhananka & Ors., (2009) 6 SCC 1, the Supreme Court
emphasised that the cases of serious injuries in a motor vehicle
accident are worse than the death cases because the victim and
his family suffers throughout life. Para 90 of the report is
extracted hereunder:-
"90. At the same time we often find that a person
injured in an accident leaves his family in greater
distress vis-à-vis a family in a case of death. In the latter
case, the initial shock gives way to a feeling of
resignation and acceptance, and in time, compels the
family to move on. The case of an injured and disabled
person is, however, more pitiable and the feeling of hurt,
helplessness, despair and often destitution enures every
day. The support that is needed by a severely
handicapped person comes at an enormous price,
physical, financial and emotional, not only on the victim
but even more so on his family and attendants and the
stress saps their energy and destroys their equanimity."
PAIN AND SUFFERING AND LOSS OF AMENITIES IN LIFE:
11. It is proved on record that immediately after the accident, the
Appellant lost consciousness. He was removed to AIIMS. The
discharge summery Ex.P3/2 reveals that the Appellant had
suffered a serious head injury. Since the Appellant had
developed chest infection and was in coma, Tracheostomy had
to be done. He had fever for many days and ultimately
responded to heavy dose of antibiotics. It was after one month
that the Appellant regained consciousness. He was discharged
from the Hospital(AIIMS) after one month and three days. The
Claims Tribunal had awarded a compensation of Rs.80,000/-
towards the head of pain and suffering and loss of amenities in
life.
12. While awarding compensation towards non-pecuniary damages
i.e. towards pain and suffering and loss of amenities and under
various other heads, it has to be kept in mind that the accident
took place in the year 1993, and once the Appellant is granted
interest on the awarded amount the award has to be on the scale
of the year 1993 i.e. the date of accident. It may be noted that at
the time of the accident, the minimum wages of a graduate were
Rs.1,567/- per month while the salary of a Group 'A' Gazetted
Officer was about ` 4,000/- per month and Group 'B' Gazetted
Officer was about ` 3,500/- per month. There is no gainsaying
that the Appellant had to suffer great pain on account of serious
injuries when he got out of coma. At the same time, I will like
to bifurcate the sum awarded towards pain and suffering and
loss of amenities in life. During the pendency of the appeal in
pursuance of the orders of this Court, the Appellant was re-
examined with regard to his permanent disability by a Medical
Board constituted by Dr. Ram Manohar Lohia Hospital.
Dr.R.P. Beniwal, Psychiatrist and member of the Medical Board
appeared before this Court on 20.04.2010 and the details of the
disability of the Appellant were recorded. At this stage, it will
be appropriate to extract paras 4 to 7 of the order dated
20.04.2010, which is as under:
"4. Dr. R.P. Beniwal, Psychiatrist and Member of the
Board constituted by Dr. Ram Manohar Lohia
Hospital is present in Court and has handed over the
original disability certificate issued by the Board. The
same is marked as Ex.-A and is taken on record. Copy
of the same be furnished to learned counsel for the
appellant as well as to learned counsel for the
respondent. The disability of the appellant as per
disability certificate? Ex.-A issued by the Board
constituted by Dr. Ram Manohar Lohia Hospital is as
under:-
"On the basis of detailed history, mental
status examination, investigating and
evaluation with above mentioned tools, it is
concluded that he is a known case of post head
Injury Psychosis NOS. His global disability
score on IDEAS (Indian Disability Evaluation
And Assessment Scale) is 14. The duration of
validity of disability is permanent."
5. Dr. R.P. Beniwal present in Court has been
examined with respect to the meaning of the term
"global disability" and "score of IDEAS (Indian
Disability Evaluation And Assessment Scale)" and the
score of "14" mentioned in the certificate.
6. Dr. Beniwal submits that guidelines of evaluation
and assessment of mental illness and procedure for
certification have been formulated by the Ministry of
Social Justice and Empowerment and Ministry of
Health and Family Welfare, Government of India. The
copy of the notification dated 18th February, 2002
and the guidelines for evaluation and assessment of
mental illness and procedure for certification have
been produced by Dr. R.P. Beniwal which are taken
on record. The copy of the notification dated 18th
February, 2002 is marked as Ex.-B and the guidelines
for evaluation and assessment of mental illness and
procedure for certification are marked as Ex.-C.
7. Dr. R.P. Beniwal further points out that as per the
Indian Disability Evaluation And Assessment Scale
(IDEAS), the score from 0 to 20 is given in respect of
disability arising out of mental disorder and the score
of 14 to 19 means severe disability of 71% to 99%.
Dr. Baniwal explains that global disability of 14
means severe disability of 71%. Dr. Beniwal further
explains that the disability of the appellant is
permanent. The relevant scores mentioned in Indian
Disability Evaluation And Assessment Scale (IDEAS)
are reproduced hereunder:-
"Scores for each items
0 - No disability (none, absent, negligible)
1 - MILD disability (slight, low)
2 - MODERATE disability (medium, fair)
3 - SEVERE disability (high, extreme)
4 - PROFOUND disability (total, cannot
do)
Total Score
Add scores of the four items and
obtain a total score weightage for duration
of illness (DOI):
<2 years : score to be added is 1
2-5 years : add 2
6-10 years : add 3
>10 years : add 4
Global Disability
Total disability score + DOI Score
= Global Disability score percentages:
0 No Disability = 0%
1-6 Mild Disability = <40%
7-13 Moderate Disability =40-70%
14-19 Severe Disability =71-99%
20 Profound Disability = 100%
Cur off for welfare measures"
13. It is true that the Appellant has since got married, yet it is
established that the Appellant continues to suffer from severe
disability with respect to his brain (just above moderate
disability). The severe disability of brain would mean that the
Appellant may be able to undertake day to day simple work but
will not be in a position to undertake complex things.
Normally, a person suffering serious permanent disability is
entitled to higher compensation under the head of loss of
amenities, enjoyment and expectation of life. At the same time,
in Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, it was
held that where any compensation to the extent of 50% or more
is granted towards loss of earning capacity, only a nominal
compensation should be awarded towards loss of amenities and
expectancy as it will be duplication of the award. In the instant
case, I am awarding compensation to the extent of 100% loss of
earning capacity and therefore, the Appellant will be entitled to
only a nominal sum towards loss of amenities and expectation
in life. I tend to award a sum of Rs.40,000/- towards pain and
suffering and Rs.40,000/- towards loss of amenities and
expectation in life. Thus, the overall compensation of
Rs.80,000/- as awarded by the Claims Tribunal under this head
seems to be just and reasonable.
NURSE AND ATTENDANT CHARGES:
14. In the claim petition, the Appellant claimed that during
confinement in the Hospital, they had to engage two separate
nurses both for day and night. In the claim petition, it was
stated that a nurse @ Rs.500/- to Rs.550/- per day had to be
engaged for day and night every day. Thus, according to the
claim of the Appellant, a sum of Rs.35,000/- approximately was
spent on engaging the nurse.
15. It is further the case of the Appellant that a full time nurse @
Rs.250/- was engaged for a period of three months and
thereafter a servant was engaged @ Rs.800/- per month.
Neither any proof with regard to the nurse engaged nor any bills
were obtained from the nurses engaged nor proved on record by
the Appellant. Minimum wages of a skilled person in the year
1993 were Rs.1,328/- per month. At the same time, I cannot
lost sight of the fact that the trained nurses were available at a
much higher rate. In the absence of any bill obtained from the
nurse, it is an uphill task to make an assessment of the wages
paid to them both for the day and night. Considering the nature
of injuries, it is believable that a private nurse must have been
engaged by the Appellant's family. Even if the gratuitous
services were rendered by other family member, the Appellant
cannot be deprived of the compensation at the cost of tortfeasor.
In this connection, a reference may be made to Delhi Transport
Corporation and Anr. v. Lalita, AIR 1981 Delhi 558, where this
Court held that the value of the services rendered by wife,
mother have to be compensated. This Court held as under:
".......A wrong doer cannot take advantage of this
„domestic element‟. If the mother renders service to
her, instead of a nurse, it is right and just that she
should recover compensation for the value of the
services that the mother has rendered to her.
Mother‟s services were necessitated by the wrong
doing and the injured should be compensated for it.
(Cunnigharn v. Harrison 3 All E.R. 463) The services
of a wife and mother are worth more than those of a
house-keeper because she is in constant attendance
and does many more things than a house-keeper.
(Regan v. Williamson (1976) 2 All E.R. 241)."
16. Since the minimum wages of a skilled worker in those days
were Rs.1,369/- per day, I will assume that an expert nurse must
be charging Rs.200/- for one shift. Thus, I grant a
compensation Rs.12,000/- (@ Rs.400 per day) for 30 days
service of two day and night nurses. I will further award a
compensation Rs.1,500/- per month for a period of six months
for engaging a servant or towards gratuitous services rendered
by a family member (minimum wages of a skilled worker being
Rs.1,369/- per month at the relevant time). The Appellant
would further need the help of a family member whenever he
will need to consult a doctor or to attend some family function.
I will thus, award a further lumpsum of Rs.15,000/- on account
of this. The overall compensation for attendant charges comes
to Rs.36,000/- as against Rs.24,000/- awarded by the Claims
Tribunal.
CONVEYANCE AND SPECIAL DIET:
17. The Claims Tribunal awarded a sum of Rs.8,000/- towards
conveyance and special diet. It is proved that the Appellant
remained admitted in the Hospital for one month and he
remained confined to bed for about four-five months. The
Appellant must have spent a sum of Rs.10,000/- on conveyance
as the Appellant remained an OPD patient for a quite long time
and will need to consult the doctor periodically may be every
year. Thus, I award a compensation of Rs.10,000/- towards
conveyance charges. I further award a compensation of
Rs.10,000/- towards special diet.
REIMBURSEMENT OF MEDICAL BILLS AND TREATMENT:
18. The Appellant's father claimed that over a sum of Rs.2,00,000/-
was spent on the treatment. The Appellant was largely treated
in Government Hospitals, more specifically in AIIMS. The
Appellant's father at the relevant time was working in the
Government and he was entitled to reimbursement of medical
expenditure. Amrit Lal Tejpal (PW-2), father of the Appellant
while stating that Rs.2,00,000/- was spent on the treatment
claimed that initially the Appellant remained in ICU and then he
was shifted to private ward. He also stated that Appellant
remained in coma for four months even after he was discharged.
This is, however, not corroborated by the medical evidence.
Rather, the medical evidence reveals that the Appellant regained
consciousness in the Hospital and only thereafter, he was
discharged. The Court can take a judicial notice of the fact that
attendant or family member of a person suffering with serious
injuries cannot retain all the bills. But, at the same time,
keeping in view that the treatment was received in Government
Hospital and Appellant's father was entitled to reimbursement
of medical expenditure on his dependent child, I tend to award a
sum of Rs.10,000/- towards purchase of medicines and
treatment in respect of the bills which might have been lost or
might not have been retained by the Appellant's family
members.
LOSS OF EARNING CAPACITY:
19. The Appellant was stated to be studying in Class 11 th in Bal
Bharti Air Force School which is one of the reputed schools in
the city. No evidence was produced with regard to Appellant's
academic record. But, at the same time, it is established that the
Appellant was an active sportsman. He was a Sargent in NCC,
a cricketer and a swimmer. He was receiving education in a
good reputed school. Minimum wages of a graduate on the date
of the accident were Rs.1,567/- per month, whereas salary of a
Group 'A' Gazetted Officer in the Government on a basic salary
of Rs.2,200/- with all allowances was about Rs.4,000/- per
month. I will have to make a guess work about the Appellant's
potential earning considering his background, the school in
which he was studying and the extracurricular activities In my
view, the Appellant just after a couple of years would have
started earning at least Rs.3,000/- per month. I will thus, take
the annual income of the Appellant to be Rs.36,000/-. Any
income beyond Rs.30,000/- per annum was subject to Income
Tax to the extent of 20% upto Rs.50,000/-. Thus, the
Appellant's income after Income Tax deduction comes to
Rs.34,800/- per annum. Considering the disability, it is difficult
that the Appellant will be able to carry out any activity for profit
in his life. It has come on record that he is working as a
photographer by hobby. He or his family members might be
able to sell some beautiful photographs/scenery, but I will
ignore the income if any from the same. On the income of
Rs.34,800/- per annum and adopting the multiplier of 18, I tend
to award a sum of Rs.6,26,400/-(Rs.34,800/- x 18) towards loss
of earning capacity.
20. The Claims Tribunal further awarded a sum of Rs.50,000/-
towards loss of studies and career prospects. I have awarded a
full compensation of Appellant's potential earning capacity.
Thus, this award of Rs.50,000/- towards loss of studies and
career prospects awarded by the Claims Tribunal would be
duplication of the award.
21. The overall compensation is recomputed as under:
Sl. Compensation under various Heads Awarded by this
No. Court (in Rs.)
1. Pain and Suffering and Loss of 80,000/- (40,000/-
Amenities and Expectation in Life + 40,000/-
2. Nurse, Servant and Attendant Charges 36,000/- (12,000/-
+ 9,000/-+5,000/-)
3. Conveyance and Special Diet 20,000/- (10,000/-
+ 10,000/-)
4. Purchase of Medicines and Treatment 10,000/-
5. Loss of Earning Capacity 6,26,400/-
TOTAL 7,72,400/-
22. The overall compensation thus, comes to Rs.7,72,400/-.
23. The compensation is hence, enhanced by Rs.4,15,000/- along
with interest @ 9% per annum from the date of filing of the
claim petition till its payment.
24. The enhanced compensation shall be deposited by Respondent
no.2 New India Assurance Company Limited in UCO Bank,
Delhi High Court Branch, New Delhi within a period of eight
weeks from the date of this judgment, failing which the
Appellant will be entitled to interest @ 12% per annum from
the date of this judgment.
25. On deposit, 50% of the enhanced compensation with
proportionate interest shall be released to the Appellant. Rest
50% shall be held in Fixed Deposit for a period of ten years on
which the Appellant would be entitled to quarterly interest.
26. The appeal is allowed in above terms.
27. Pending applications, if any, also stand disposed of.
(G.P. MITTAL)
JUDGE
APRIL 10, 2015
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