Delhi High Court
Poonam Kumari vs Icici Lombard Genral Insurace ... on 14 September, 2018
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 14th September, 2018
+ MAC.APP. 454/2018 & CM No.37759/2018
POONAM KUMARI ..... Appellant
Through: Mr.Umesh Kumar, Advocate
versus
ICICI LOMBARD GENRAL
INSURACE COMPANY LIMITED & ORS ...... Respondents
Through: Mr.Pankaj Gupta, Advocate for
Ms.Suman Bagga, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
CM No.37759/2018
1. The documents are taken on record. Application is disposed of.
MAC.APP. 454/2018
2. The appellant has challenged the award of the Claims Tribunal
whereby the compensation of Rs.3,90,071/- have been awarded to the
appellant. The appellant is seeking enhancement of the compensation
amount.
3. On 05th September, 2008 at about 03:15 P.M., the appellant was
travelling in a blue line bus from Dhaula Kuan to Azadpur along with her
father and grandmother. The appellant was getting down from the bus at
G.T.K. Road bus stop, Delhi when driver of the bus suddenly moved the bus
negligently, due to which the appellant fell down on the road and her left leg
was crushed under rear wheel of the bus. The appellant suffered degloving
injury involving circumferential skin/tissue loss of whole left foot till base of
toes. The appellant was initially taken to Sushruta Trauma Centre where her
MLC was done and later shifted to Lok Nayak Hospital, New Delhi where
she was treated for pop slab in situ for the degloving injury of left ankle. On
07th September, 2008, the appellant was shifted to Anguri Devi Orthopedic
and General Hospital, Khewra, Meerut Road, Bahalgarh, Sonepat, Haryana
where she remained admitted for her treatment of degloving of skin tissues
and wound management for about a month. On 05th October, 2008, the
appellant was admitted to Saxena Multi Speciality Hospital, Sonepat,
Haryana for plastic surgery and treatment of wound for one month. On 22nd
December, 2017, the appellant was taken to Lady Hardinge Medical College
and Sucheta Kriplani Hospital for post-traumatic deformity of left foot with
lymphedema infection. On 26th December, 2017, the appellant was referred
for orthopedic surgery for thickened skin and pseudoainhum formation of
left leg. On 18th February, 2018 the patient was referred for plastic surgery to
OPD, Safdarjung Hospital.
4. As per the disability certificate dated 06th March, 2010 issued by
B.J.R.M. Hospital, the appellant has suffered 42% permanent disability
relating to her left lower limb. The appellant was 8 years of age at the time
of accident. The appellant will require further operative treatment for
correction of her deformity of foot and ankle as her deformity is likely to
increase as she grows.
5. The Claims Tribunal awarded compensation of Rs.3,00,000/- towards
pain and suffering, mental and physical shock, hardship and loss of
amenities of life; Rs.25,000/- towards discomfort, inconvenience and loss of
earnings to the parents during the period of hospitalization; Rs.40,071/-
towards medical expenses and Rs.25,000/- towards future medical expenses.
The total compensation awarded by the Claims Tribunal is Rs.3,90,071/-.
6. Learned counsel for the appellant urged at the time of hearing that the
Claims Tribunal has not awarded any compensation for loss of earning
capacity. It is further submitted that no compensation has been awarded
under the heads of disfiguration and loss of marriage prospects. It is further
submitted that the compensation towards future medical expenses awarded
by the Claims Tribunal are grossly on a lower side. Reliance is placed on
Master Mallikarjun v. Divisional Manager, The National Insurance
Company Ltd., 2013 ACJ 2445, in which the Supreme Court awarded the
non-pecuniary compensation of Rs.4,00,000/- towards pain and suffering
and loss of amenities of life in respect of 30% to 60% permanent disability.
7. The appellant is present in Court and her condition has been seen.
This Court is satisfied that the compensation awarded by the Claims
Tribunal is on a grossly lower side. It appears that the Claims Tribunal has
not appreciated the injuries suffered by the appellant. It appears that the
Claims Tribunal did not even care to look at the condition of the appellant.
The photograph of the appellant filed before this Court is annexed to this
judgment as Annexure-A. However, the same shall be not uploaded on the
website.
8. This Court is of the view that the appellant is entitled to compensation
for loss of earning capacity. The functional disability of appellant is taken as
42%. The accident took place in the year 2008, therefore, taking the
minimum wages of Rs.3,683/- for the year 2008, functional disability of
42% and applying the multiplier of 18, the loss of earning capacity is
assessed as Rs.3,34,121.76. Compensation awarded towards pain and
suffering along with loss of amenities of life is enhanced from Rs.3,00,000/-
to Rs.4,00,000/-. Compensation towards the future medical treatment is
enhanced from to Rs.25,000/- to Rs.2,50,000/-. Rs.1,00,000/- is awarded
towards disfigurement and Rs.1,00,000/- is awarded for loss of matrimonial
prospects. Rs.25,000/- awarded under the heads of discomfort,
inconvenience and loss of earnings to the parents during the period of
hospitalization and Rs.40,071/- awarded towards medical expenses by the
Claims Tribunal are upheld. The appellant is entitled to a total compensation
of Rs.12,49,192.76, rounded off to Rs.12,50,000/-.
9. The appeal is allowed and the award amount is enhanced from
Rs.3,90,071/- to Rs.12,50,000/- along with interest @ 9% per annum from
23rd September, 2008.
10. The enhanced award amount be deposited by the respondent with the
Registrar General of this Court within six weeks.
11. The appellant shall remain present in Court on the next date of hearing
along with the original passbook of her savings bank account near the place
of her residence with the necessary endorsement as well as PAN Card and
Aadhaar Card. The concerned bank of appellant is directed not to issue any
cheque book or debit card to the appellant and if the same have already been
issued, the bank is directed to cancel the same and make an endorsement on
their passbook to this effect. The appellant shall produce the copy of this
order to the concerned bank, whereupon the bank shall make an
endorsement on the passbook of the appellant that no cheque book and/or
debit card shall be issued to the appellant without the permission of this
Court. However, the concerned bank shall permit the appellant to withdraw
money from her savings bank account by means of a withdrawal form. The
appellant shall produce the original passbook of her individual savings bank
account with the necessary endorsement on the next date of hearing.
12. The appellant is referred to the Committee appointed by this Court in
MAC.APP.1134/2017. Mr. Pankaj Gupta, Advocate appointed as learned
amicus curiae by this Court in MAC.APP.1134/2017 shall communicate the
date of examination of the appellant to the counsel for the appellant. The
Committee shall examine whether an artificial limb can be fixed on the
disabled left leg of the appellant.
13. List for reporting compliance on 16th November, 2018.
14. Copy of this judgement be given dasti to counsels for the parties
under signatures of the Court Master.
SEPTEMBER 14, 2018 J.R.MIDHA, J.
ak
