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2009 DIGILAW 678 (DEL)

Mohd. Tahir v. Charan Singh

2009-06-10

J.R.MIDHA

body2009
JUDGMENT : J.R. Midha, J. The Appellant has challenged the award of the learned Tribunal whereby compensation of Rs. 2,43,434 has been awarded to the Appellant. The Appellant seeks enhancement of the award amount. 2. The accident dated 20.6.2004 resulted in grievous injuries to the Appellant who was travelling on his two-wheeler scooter and was hit by the offending bus. The Appellant fell down on the road and his right hand was crushed under the rear left wheel of the offending bus. Appellant was removed to Sushruta Trauma Centre where he remained admitted from 20.6.2004 to 4.7.2004, during which period multiple operations were performed on his arm and palm and steel rod/plates were implanted in the right hand. Some infection developed on his right hand and, therefore, another operation was performed for removal of plate and affixation of forearm fixator. The Appellant continued the treatment and the fixator remained affixed on his right hand for about five months and, thereafter, his right hand was plastered. His treatment continued in Sushruta Trauma Centre where he was advised another operation and he was referred to the Lok Nayak Hospital. The Appellant was admitted in Lok Nayak Hospital from 22.3.2005 to 24.3.2005 but the surgery could not be performed and, thereafter, the Appellant got admitted in Jeevan Hospital and Nursing Home where he remained admitted from 26.4.2005 to 28.4.2005 and underwent an operation for bone-grafting. The Appellant continued his treatment from that hospital for another seven months and, thereafter, underwent physiotherapy treatment. 3. The injuries suffered by the Appellant have resulted in 23 per cent permanent disability in right upper limb as per the disability certificate, Exh. PW1/103. 4. The Appellant was aged 33 years at the time of the accident and was self-employed and was doing private screen printing job work. The Appellant claims to be earning Rs. 5,000 per month. The Appellant used to prepare screen-printing dye and the screen printing work requires strength of both hands. According to the Appellant, he was unable to do any work with the right hand due to the injuries sustained by him in the accident. 5. The learned Tribunal awarded a sum of Rs. 2,43,434 to the Appellant. The breakup of the amount awarded by the Tribunal is as under: (i) Loss of earnings during the period of treatment Rs. 20,230 (ii) Damages on account of permanent disability Rs. 5. The learned Tribunal awarded a sum of Rs. 2,43,434 to the Appellant. The breakup of the amount awarded by the Tribunal is as under: (i) Loss of earnings during the period of treatment Rs. 20,230 (ii) Damages on account of permanent disability Rs. 20,000 (iii) Loss of proportionate future income for permanent disability Rs. 1,38,424 (iv). Expenses on medical treatment Rs. 39,780 (v). Future expenditure on account of special diet and conveyance Rs. 5,000 (vi) Loss of amenities of life Rs. 10,000 (vii) Pain and agony Rs. 10,000 6. While computing the compensation towards loss of income due to permanent disability, the learned Tribunal took the minimum wages of Rs. 2,890 per month and after taking into consideration the future prospects took the annual income of Rs. 37,615 on which the multiplier of 16 was applied by taking the loss of earning capacity to be 23 per cent. 7. The Appellant has urged the following grounds at the hearing of the appeal: (i) The income of the Appellant be taken to be Rs. 5,000 per month. (ii) The future prospects be computed by taking the average and its double. (iii) The loss of earning capacity of the Appellant be taken as 100 per cent instead of 23 per cent taken by the learned Tribunal. (iv) Enhancement of the compensation for amenities of life. (v) Enhancement of the compensation for pain and suffering. (vi) Enhancement of the compensation for special diet and conveyance. (vii) Enhancement of the compensation for medical treatment. (viii) Enhancement of the compensation for future medical treatment. (ix). Enhancement of the compensation for permanent disability. 8. With respect to the compensation for loss of earning capacity, the learned Tribunal has taken the income of the Appellant to be Rs. 2,890 according to the minimum wages. The Appellant is claiming his income to be Rs. 5,000 per month. However, since there is no documentary evidence to prove the income, the learned trial court was correct in taking the minimum wages of Rs. 2,890 as his income. The annual income accordingly comes to Rs. 34,680. The learned Claims Tribunal assumed that his annual income would have increased to Rs. 40,000 with the passage of time and took the average of Rs. 34,680 and Rs. 40,000 to compute the annual income of the deceased for the purpose to compute all compensation. In the cases of Kanwar Devi and Others Vs. 34,680. The learned Claims Tribunal assumed that his annual income would have increased to Rs. 40,000 with the passage of time and took the average of Rs. 34,680 and Rs. 40,000 to compute the annual income of the deceased for the purpose to compute all compensation. In the cases of Kanwar Devi and Others Vs. Bansal Roadways and Others, (2008) ACJ 2182 ; Lekh Raj and Another Vs. Suram Singh and Others, (2007) ACJ 2165 ; National Insurance Company Ltd. Vs. Renu Devi and Others, (2009) ACJ 1921 ; and U.P. State Road Transport Corpn. v. Munni Devi 2010 ACJ 2753 (Delhi), this Court has taken the judicial notice of the increase of minimum wages to meet the increase in price index and inflation rate. The court has taken the view that the minimum wages get doubled over the period of 10 years. The income of the Appellant for the purpose of computation of compensation is, therefore, taken to be average of Rs. 2,890 and its double which comes to Rs. 4,335 [(Rs. 2,890 + Rs. 5,780) v 2]. The learned Tribunal has applied the multiplier of 16 which is fair and reasonable considering the age of the Appellant. The loss of income of the Appellant accordingly comes to Rs. 8,32,320 (Rs. 4,335 x 12 x 16). The learned Tribunal has taken the loss of earning capacity of the Appellant to be 23 per cent, equal to the permanent disability of 23 per cent. According to the Appellant, he is unable to do any work and, therefore, he claims the loss of earning capacity to be 100 per cent. 9. The Learned Counsel for the Appellant refers to and relies upon the judgment of Pratap Narain Singh Deo v. Shrinivas Sabata 1976 ACJ 141 (SC); Gujarat State Road Transport Corporation Vs. Balusinh Nathusinh Parmar and Another, (1992) ACJ 484 : (1991) 2 GLR 645 ; and K. Narasimha Murthy Vs. The Manager, Oriental Insurance Company Limited and Another, (2004) ACJ 1109, in support of his argument. 10. In the case of Gujarat State Road Transport Corporation Vs. Balusinh Nathusinh Parmar and Another, (1992) ACJ 484 : (1991) 2 GLR 645, the injured was the stenographer who suffered 10 per cent disability in ring and last fingers and the loss of his earning capacity was taken by the court to be 33 per cent. 10. In the case of Gujarat State Road Transport Corporation Vs. Balusinh Nathusinh Parmar and Another, (1992) ACJ 484 : (1991) 2 GLR 645, the injured was the stenographer who suffered 10 per cent disability in ring and last fingers and the loss of his earning capacity was taken by the court to be 33 per cent. In the case of K. Narasimha Murthy Vs. The Manager, Oriental Insurance Company Limited and Another, (2004) ACJ 1109, the injured was CRPF employee who had suffered 54 per cent permanent physical disability in leg but the loss of earning capacity was taken to be 100 per cent. 11. In the present case, the Appellant was doing the work of screen printing, which requires strength in both hands and, therefore, he is unable to do that work. However, there is no evidence whatsoever that the Appellant is unable to do any other work. The Appellant can engage himself in a work not involving the strength in right hand. It cannot be presumed that for every type of work, the Appellant's earning capacity to work has been reduced by 100 per cent. Considering the facts and circumstances of this case, the loss of earning capacity is taken to be 50 per cent. The loss of income of the Appellant on the basis of 50 per cent disability in earning capacity is computed to be Rs. 4,16,160 (Rs. 8,32,320 x 50 v 100). 12. The learned Tribunal has awarded Rs. 10,000 towards pain and agony and Rs. 10,000 for loss of amenities of life. The Appellant seeks enhancement of the said amount. In the case of K. Narasimha Murthy Vs. The Manager, Oriental Insurance Company Limited and Another, (2004) ACJ 1109, the High Court of Karnataka has awarded compensation to the tune of Rs. 14,00,000 in respect of the permanent disability to the tune of 54 per cent. Considering the 23 per cent disability suffered by the Appellant, the compensation for pain and suffering is enhanced from Rs. 10,000 to Rs. 25,000 and the compensation for loss of amenities is also enhanced from Rs. 10,000 to Rs. 25,000. The learned Tribunal has not awarded any amount for future medical treatment. The Appellant has proved the certificate, Exh. PW1/17, issued by Jeevan Hospital and Nursing Home certifying the expenditure towards future treatment to be approximately Rs. 30,000. 10,000 to Rs. 25,000 and the compensation for loss of amenities is also enhanced from Rs. 10,000 to Rs. 25,000. The learned Tribunal has not awarded any amount for future medical treatment. The Appellant has proved the certificate, Exh. PW1/17, issued by Jeevan Hospital and Nursing Home certifying the expenditure towards future treatment to be approximately Rs. 30,000. The learned Tribunal rejected this claim on the ground that the doctor was not examined. Considering the injuries suffered by the Appellant, medical record, Exh. PW1/2 to PW1/98, and the expenditure already incurred by the Appellant on the treatment to the tune of Rs. 39,780, it is fair and reasonable to assume that the Appellant would spend at least Rs. 25,000 on future treatment. The compensation of Rs. 25,000 is awarded for future treatment. 13. The learned Tribunal has awarded Rs. 5,000 for special diet and conveyance. The Appellant is seeking enhancement of the same. The amount awarded by learned Tribunal is fair and reasonable in the facts and circumstances of this case. 14. The Appellant is entitled to the total compensation of Rs. 5,76,170 (Rs. 20,230 towards loss of earnings during treatment, Rs. 20,000 towards permanent disability, Rs. 4,16,160 towards the loss of future income, Rs. 39,780 towards expenditure on treatment, Rs. 5,000 towards special diet and conveyance, Rs. 25,000 towards loss of amenities of life, Rs. 25,000 towards pain and agony and Rs. 25,000 towards future medical expenses). 15. The appeal is allowed and the award amount is enhanced from Rs. 2,43,434 to Rs. 5,76,170 along with interest at the rate of 7.5 per cent per annum from the date of filing of the petition till the date of payment.