Delhi High Court
North Delhi Municipal ... vs Ganesh Kumar on 13 July, 2018
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 13th July, 2018
+ MAC.APP. 422/2018 & CM APPL. 17597/2018
NORTH DELHI MUNICIPAL CORPORATION ..... Appellant
Through: Mr.D.S. Mahendru, Advocate along
with Mr.Dharamvir Sharma, Assistant
Director, North MCD
versus
GANESH KUMAR ..... Respondent
Through: Mr.Lalit Kumar Dhingra, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the award of the Claims Tribunal
whereby compensation of Rs.11,86,800/- has been awarded to the
respondent.
2. On 27th August, 2009 at about 09:30 AM, the respondent was on duty
with the appellant as an auto cleaner on vehicle No.DL-1GB-3326 at Civil
Lines Auto Workshop when vehicle No.DL-1LD-4386 reversed without
blowing any horn and crushed the respondent between the two vehicles. The
police registered FIR No.289/2009 dated 27th August, 2009 under Sections
279/337 of IPC at P.S. K.W.Camp/Model Town.
3. The Respondent suffered fracture in temporal bone of both sides;
depressed fracture of right temporal bone; fracture of right temoporo-
mandibular joint with difficulty in mouth opening; fracture of zygoma ;
fracture of right orbit; brain parebyma concussions; fracture and dislocation
both ear bones; decreased hearing in both ears; facial nerve palsy of both
sides resulting in facial asymmetry; difficulty in closing eyes; expression
less face; drooling of saliva and grievous injuries on head, eyes, ears, jaw
and face. Respondent was taken to Sushruta Trauma Centre, where he
remained admitted from 27th August, 2009 to 26th September, 2009.
Respondent took further treatment in Dr. RML Hospital; Guru Nanak Eye
Center, Bhandari ENT Hospital; Dr. Baba Saheb Ambedkar Hospital and
Focus Imaging Center.
4. The injuries suffered by respondent was assessed by Dr. Baba Saheb
Ambedkar Hospital which issued a certificate dated 4th July, 2011 (PW-2/2)
according to which the respondent suffered 62% temporary physical, speech
and hearing disability and re-assessment was recommended after a period of
2 years. On 23rd November, 2012, Dr. Baba Saheb Ambedkar Hospital re-
assessed the disability of the respondent and issued a disability certificate
dated 23rd November, 2012 (PW-2/1) stating that the respondent has suffered
71% permanent disability relating to auditory & head nerve injury.
5. The Claims Tribunal awarded Rs.50,000/- towards pain and suffering,
Rs.25,000/- towards conveyance, Rs.25,000/- towards special diet,
Rs.50,000/- towards loss of amenities of life and Rs.10,36,800/- towards the
loss of earning capacity due to the disability. Total compensation awarded is
Rs.11,86,800/-.
6. Learned counsel for the appellant urged at the time of hearing that the
respondent is permanently employed with the appellant and has not suffered
any loss of income. It is submitted that the respondent is not entitled to the
compensation for loss of income as awarded by the Claims Tribunal.
7. Learned counsel for the respondent urged at the time of hearing that
the compensation awarded by the Claims Tribunal under the heads of loss on
account of pain and suffering and loss of amenities of life is grossly
inadequate. It is further submitted that no compensation has been awarded
for disfiguration.
8. The respondent is present in Court and his condition has been seen.
On 17th May, 2018, the respondent had handed over two photographs, one
prior to the accident and one after the accident.
9. There is merit in the appellants contention that the respondent has not
suffered any loss of income and therefore, the compensation of
Rs.10,86,800/- awarded by the Claims Tribunal under the head of loss of
earning capacity is liable to be set aside.
10. The compensation awarded by the Claims Tribunal under the heads of
pain and suffering and loss of amenities of life is grossly inadequate. In
Master Mallikarjun v. Divisional Manager, The National Insurance
Company Ltd., (2014) 14 SCC 396, the Supreme Court directed the non-
pecuniary compensation towards pain and suffering and loss of amenities of
life in respect of permanent disability of more than 60% upto 90% to be
Rs.5,00,000/-. In the present case, the respondent has suffered 71%
permanent disability relating to auditory & head nerve injury. The
compensation for pain and suffering and loss of amenities of life on account
of permanent disability is enhanced from Rs.50,000/- to Rs.5,00,000/-.
11. The Claims Tribunal has not awarded any compensation for
disfiguration. The respondent has been completely disfigured and the
compensation under the head of disfigurement is assessed as Rs.3,50,000/-.
12. The respondent is entitled to a total compensation of Rs.9,00,000/-
(Rs.5,00,000/- for pain and suffering and loss of amenities of life +
Rs.3,50,000/- for disfiguration + Rs.50,000/- for conveyance and special
diet) along with interest at the rate of 9% per annum.
13. The appeal is allowed and the compensation of Rs.11,86,800/-
awarded by the Claims Tribunal is reduced to Rs.9,00,000/- along with
interest at the rate of 9% per annum from i.e. 16th September, 2009 i.e. date
of institution.
14. The appellant has deposited Rs.16,02,148/- with the Registrar General
of this Court in terms of order dated 17th May, 2018.
15. The Registrar General is directed to disburse Rs.14,00,000/- to the
claimant by instructing UCO Bank, Delhi High Court Branch as under:
(i) Rs.14,00,000/- be kept in 56 FDRs of Rs.25,000/- each for the period
of 1 month to 56 months respectively with cumulative interest.
(ii) The balance amount, after keeping Rs.14,00,000/-, in FDRs be
released to respondent, Ganesh Kumar Bharadwaj by transferring the
same to his savings bank account No.31127263172 with State Bank of
India, Dilshad Garden Branch, Delhi, IFSC: SBIN0009370.
(iii) At the time of maturity, the maturity amounts of the said FDRs shall
be credited in the individual savings bank account of the respondent
mentioned above.
(iv) All the original FDRs shall be retained by UCO Bank, Delhi High
Court Branch. However, a statement containing FDR number, FDR
amount, date of maturity and maturity amount be furnished to
respondent.
(v) No loan or advance or pre-mature discharge shall be permitted without
the permission of this Court.
(vi) State Bank of India, Dilshad Garden Branch shall permit the
respondent to withdraw money from his savings bank account by
means of a withdrawal form.
16. The appellant deposited Rs.50,000/- with the Court of concerned
Metropolitan Magistrate at the time of seeking the release of the offending
vehicle on supardari and the said amount has been kept in FDR with
Corporation Bank in the name of the respondent. The concerned
Metropolitan Magistrate is directed to refund the said FDR amount to the
appellant.
17. The statutory amount be refunded back to the appellant.
18. Pending application disposed of.
19. List for reporting compliance by UCO Bank, Delhi High Court
Branch on 17th August, 2018
20. Copy of this judgment be given dasti to learned counsels for the
parties under signature of Court Master.
JULY 13, 2018 J.R.MIDHA, J.
ds
