Delhi High Court
Baby Monika @ Golu vs Delhi Dugdh Parivahan & Ors. on 11 February, 2016
Author: R. K. Gauba
$~R-12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11th February, 2016
+ MAC.APP. 929/2006
BABY MONIKA @ GOLU ..... Appellant
Through: None
versus
DELHI DUGDH PARIVAHAN & ORS. ..... Respondents
Through: Mr. A K Soni, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. This appeal under section 173 of Motor Vehicle, Act, 1988 (MV
Act) was presented in November, 2006 on behalf of the claimant seeking
enhancement of the compensation awarded by the Motor Accident
Claims Tribunal (the Tribunal) in claim case that had been submitted
before the said forum on 02.01.2004, registered as suit No.03/2004,
decided by judgment dated 03.03.2006. The claimant had claimed
compensation in the sum of `15 lakhs for injuries suffered in motor
vehicular accident by motor vehicle bearing registered No.DL-1D-A-
7874 (offending vehicle) that occurred at about 6.15 AM on 30.11.2003
in front of Digamber Jain Mandir, Main Road, C-Block, Yamuna Vihar,
Delhi. The offending vehicle was concededly owned by the first
respondent, driven at the relevant point of time by the second respondent
and covered by an insurance policy against third party risk with the third
respondent. The Tribunal awarded compensation in the sum of
`1,53,000/- and directed the insurance company to indemnify with
interest at 7.5% per annum within one month from the date of order till
realisation.
2. The computation of compensation worked out by the Tribunal is as
under :
"1. Pain and Suffering `20,000/-
2. Reasonable Medical Expenses, though
actual medical expenses are `1,800/- `5,000/-
3. Special diet and conveyance `5,000/-
4. Expense on attendant `3,000/-
5. Permanent disability, loss of future
earnings and future unhappiness `1,00,000/-
6. Shortening of life spent `20,000/-
Total `1,53,000/-"
5. Though the appeal was filed, effective and timely steps were not
taken for service of the respondents. Eventually, by order dated
09.02.2009, the appeal was admitted and the service of first and second
respondent was dispensed with in view of the fact that the validity of
insurance policy of the offending vehicle was not in dispute. The appeal
came up for hearing in 2012 but matter was referred with the consent of
the claimant to conciliation through Lok Adalat. No fruitful results could
be achieved and, thus, the appeal came back for consideration by the
court. It was taken up for hearing on 16.05.2013 but dismissed in default
for non-prosecution. On application for restoration being moved, again
none appeared on 15.01.2014 and the said application was also dismissed
in default. Subsequently, on another application being moved the appeal
was restored by order dated 03.04.2014. None appeared on the next two
dates i.e. 28.11.2014 and 03.12.2014 in which view it was again
dismissed in default. On yet another application being moved, the appeal
was again restored by order dated 05.01.2015 even though no one had
appeared for the appellant to prosecute. It came up for hearing on
18.01.2016, but none appeared. Situation remains the same even today.
Having regard to the nature of the claim, the delay that has occurred,
assumably on account of neglect by the counsel representing the
claimant, there is no reason the appeal should be dismissed in default
once again because that would only give rise to another round of
application for restoration. It is desirable that it is considered on merits
and a decision taken on the issues raised about compensation.
6. The basic grievance in the appeal is that the appellant, a child aged
2 ½ years, had suffered permanent disablement as a result of the injuries
suffered, in that her left lower limb had to be amputated below knee. The
Tribunal has made a rough estimate of Rs.1 lakh on account of loss of
future earnings due to permanent disablement and future unhappiness put
together. There is indeed no basis of such computation.
7. Assumably, the child would have grown up and become financially
independent. In these circumstances, one permissible method of
calculation is to adopt the notional income in relation to non-earning
persons as prescribed in the second schedule to the MV Act which was
adopted for similar purposes though in the case of death of minor
children, in the case of R K Malik & Anr. v. Kiran Pal & Ors. (2009) 14
SCC 1. Thus, it is assumed that the claimant would have been earning
`15,000/- per annum upon turning major.
8. The claimant had proved before the Tribunal that she had suffered
65% of permanent disability in relation to the left lower limb (Ex.PW-
4/18). Since the amputation of the left leg below knee is treated as
resulting in 50% of the loss of earning capacity in terms of first schedule
appended to Employees Compensation Act, 1923, the assessment made
by the Tribunal to the extent of 18.6% is totally wrong. The functional
disability must be assessed to the extent of 50%, and, therefore, the loss
of future earnings to the extent of `7,500/- per annum would need to be
compensated. Since the age of the claimant was 2 ½ years only, the
multiplier of 15 will have to be applied. [Sarla Verma (Smt.) & Ors. v.
Delhi Transport Corporation & Anr., (2009) 6 SCC 121]. Thus, the total
compensation awarded on loss of future earnings comes to (7500 x 15)
`1,12,500/-.
9. Formal evidence was not led on the expenditure incurred on special
diet, conveyance or engaging of an attendant. Expenditure on treatment
was proved only to the extent of `1,800/-. But the Tribunal awarded
`5,000/- by some guess work. It also awarded `20,000/- each under the
heads of pain, suffering and shortening of life. While no proof has been
adduced even in the appeal as to the expenditure incurred on treatment,
having regard to the nature of injury and its aftermath suffered the
compensation under all the said heads needs to be suitably revised. In the
case reported as Laxman v. Oriental Insurance Co. Ltd. (2011) 10 SCC
756, in which accident had occurred on 08.09.2003 and the claimant had
suffered similar disability in the right lower limb, the Supreme Court had
awarded `1,50,000/- on account of pain and agony, `1 lakh on account of
loss of amenities of life besides `1 lakh on account of loss of prospects of
marriage. Given the state of child claimant in this case, similar award
needs to be made under all the said heads. Having regard to the nature of
injuries, compensation on account of medical expenses, special diet and
conveyance and expenses on attendant also deserve to be enhanced to
`20,000/- each.
10. The total compensation awardable in this case, thus, comes to
(1,12,500/- + 1,50,000 + 1,00,000 + 1,00,000 + 20,000 + 20,000 +
20,000) `5,22,500/-.
11. The compensation is accordingly enhanced to `5,22,500/- (Rupees
Five Lakhs Twenty Two Thousand and Five Hundred only). It shall
carry interest as awarded by the Tribunal. The entire enhanced amount
shall be put in the FDR in the name of the appellant in a nationalised
bank for a period of 10 years with liberty to draw monthly interest.
12. The insurance company is directed to deposit the enhanced award
in terms of above directions with the Tribunal within 30 days whereafter
it shall be dealt with in accordance with the directions. The interest shall
not be levied for the period the appeal remained dismissed.
13. The appeal is disposed of in above terms.
14. Trial court record be returned.
R.K. GAUBA
(JUDGE)
FEBRUARY 11 2016/VLD
