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2010 DIGILAW 250 (RAJ)

Jitender Kumar v. Virender Singh

2010-02-02

J.R.MIDHA

body2010
Hon'ble MIDHA, J.—The appellant has challenged the award of the learned Tribunal whereby compensation of Rs.5,24,000/- has been awarded to the appellant. The appellant seeks enhancement of the award amount. 2. The accident dated 7th June, 2005 resulted in grievous injuries to the appellant. The appellant was going on his bicycle when he was hit by a bus bearing No.DL-1PA-6537. The appellant's right leg was amputated below knee. The disability of the appellant has been assessed to be 70% in respect of right lower limb vide disability certificate - Ex.PW4/A. Dr. Ramakant Gupta, one of the member of the Medical Board which issued disability certificate, appeared in the witness box as PW-4 and deposed that the disability in respect of the full body was approximately 33%. 3. The deceased was doing a private job at the time of the accident. In the absence of sufficient documentary proof, the learned Tribunal took the minimum wages of Rs.3,100/- per month, applied the multiplier of 17 and took the loss of earning capacity to be 33%. The loss of earning capacity of the appellant was computed to be Rs.2,09,000/-. Rs.2,25,000/- has been awarded towards medical expenses, Rs.40,000/- towards conveyance and special diet and Rs.50,000/- towards pain and suffering. The total compensation awarded is Rs.5,24,000/-. 4. The learned counsel for the appellant has urged the following grounds at the time of hearing of this appeal:- (i) The compensation for implantation of artificial limb be awarded. (ii) The compensation for loss of earning be enhanced by taking the future prospects into consideration and taking the loss of earning capacity to be 100%. (iii) The compensation for pain and suffering be enhanced. (iv) The compensation be awarded for loss of amenities of life. (v) The compensation be awarded for disfiguration. (vi) The compensation for conveyance be enhanced. 5. With respect to the implantation of artificial limb, the appellant led additional evidence before this Court by examining Assessment Officer of St. Stephen's Hospital as A1W1 who deposed that the cost of artificial limb to be implanted on the appellant is Rs.2,31,370/-. The cost of fitment has been given as Rs.15,000/-. The total cost of the artificial limb is Rs.2,46,370/-. A1W1 has given an assessment of the hospitalization charges of the appellant for fixation of the artificial limb. The estimate has been proved as Ex.A1W1 according to which Rs.53,100/- is the cost of implantation of artificial limb. The cost of fitment has been given as Rs.15,000/-. The total cost of the artificial limb is Rs.2,46,370/-. A1W1 has given an assessment of the hospitalization charges of the appellant for fixation of the artificial limb. The estimate has been proved as Ex.A1W1 according to which Rs.53,100/- is the cost of implantation of artificial limb. The estimate of the artificial limb has been proved as Ex.A1W2 by A1W1. 6. On the basis of the evidence of A1W1, Ex.A1W1 and Ex.A1W2, this Court is satisfied that the appellant needs implantation of artificial limb which would cost Rs.2,46,370/- apart from the hospitalization charges of Rs.53,100/- by St. Stephen's Hospital, Delhi. The total cost would come to Rs.2,99,470/- (Rs.2,46,370 + Rs.53,100). Rs.2,99,470/- is awarded to the appellant for implantation of the artificial limb. Since the artificial limb is yet to be implanted, no interest is awarded on the cost of artificial limb. 7. The learned counsel for respondent No.3 submits that the appellant does not need implantation of artificial limb. The learned counsel for respondent No.3 submits that the artificial limb cannot be implanted in case of amputation of leg below knee. The learned counsel submits that artificial limb can be implanted only in case of amputation of leg above knee. The learned counsel further submits that the appellant's right leg would require further amputation up to above knee level for implantation of the artificial limb. The argument of the learned counsel for respondent No.3 is absurd on the face of it and there is no material to support the same and is, therefore, rejected. 8. The learned Tribunal has taken the minimum wages into consideration for computation of loss of income. However, the increase in minimum wages due to inflation and rise in price index has not been taken into consideration. 9. It is well settled by the catena of judgments of this Court in the cases of Kanwar Devi vs. Bansal Roadways, 2008 ACJ 2182, National Insurance Company Limited vs. Renu Devi III (2008) ACC 134 and U.P.S.R.T.C. vs. Munni Devi, MAC.APP.No.310/2007 decided on 28.07.2008 that the Court should take judicial notice of increase in 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 and increase in minimum wages is not akin to future prospects and the income should be computed by taking the average of minimum wages and its double. 10. Following the aforesaid judgments, the income of the appellant is taken to be Rs.4,650/- per month [(Rs.3,100 + Rs.6,200)/2]. 11. The learned Tribunal has taken the loss of earning capacity of the appellant to be 33% on the basis of the statement of PW-4. PW-4 has deposed in the witness box that the disability of the appellant in respect of right lower limb is 70% and in respect of the whole body is 33%. However, PW-4 has not deposed as to the percentage of loss of earning capacity of the appellant due to the amputation of right lower limb. The appellant was doing private job at the time of the accident. After the accident, the appellant acquired HIV during blood transfusion given by the hospital and has lost his job. Since no compensation has been awarded to the appellant for amputation of artificial limb, the appellant is moving with the help of a walker and is unemployed since then. The appellant is present in the Court and his condition has been perused. 12. In the facts and circumstances of this case, the loss of earning capacity is taken to be 50%. Taking the income of the appellant to be Rs.4,650/- per month and loss of earning capacity to be 50%, the compensation for loss of income is computed to be Rs.4,74,300/- (Rs.4,650 x 12 x 17 x 50%). 13. The learned Tribunal has awarded Rs.50,000/- towards pain and suffering. No compensation has been awarded towards loss of amenities of life and disfiguration. The law with respect to the non-pecuniary compensation is well settled by the judgment of this Court in the case of Oriental Insurance Co. Ltd. vs. Vijay Kumar Mittal (2008) ACJ 1300, where this Court examined all the previous judgments with respect to the non-pecuniary compensation awarded in the case of permanent disability and held that the Courts have been awarding about Rs.3,00,000/- under the heads of non-pecuniary damages for amputation of leg with permanent disability of 50% and above. The findings of this Court are reproduced hereinunder:- “17. The findings of this Court are reproduced hereinunder:- “17. From the aforenoted judicial decisions, a trend which emerges is that between the years 1985 and 1990, the courts have been awarding about Rs.3,00,000/- under the head „non-pecuniary damages' for amputation of leg resulting in permanent disability of 50 per cent and above.” 14. Following the aforesaid judgment, the non-pecuniary compensation is enhanced to Rs.3,00,000/- under the following heads:- (i) Compensation for pain and suffering : Rs. 1,00,000/- (ii) Compensation for loss of amenities of life : Rs. 1,00,000/- (iii) Compensation for disfiguration : Rs. 1,00,000/- Total : Rs. 3,00,000/- 15. The learned Tribunal has awarded compensation of Rs.40,000/- towards conveyance and special diet. Rs.20,000/- is treated to be towards special diet which is fair and reasonable. However, considering that the appellant has suffered amputation of leg and is unable to travel by public transport and is moving with the help of a walker, the compensation for conveyance is on a lower side. The compensation for loss on account of conveyance could have been awarded on monthly basis but considering that the appellant is unemployed and, therefore, does not have to travel daily to the workplace and may be required to travel for about five to seven days in a month, Rs.500/- per month is awarded to the appellant towards conveyance. Applying the multiplier of 17, the compensation on account of conveyance is computed to be Rs.1,02,000/- (Rs.500 x 12 x 17). The aforesaid amount is discounted by Rs.22,000/- and a lump-sum amount of Rs.80,000/- is awarded considering that the said amount can be kept in fixed deposit and the monthly interest thereon would be sufficient to meet the conveyance expenses. 16. The appellant is entitled to total compensation of Rs.13,98,770/- as per the break-up given hereunder:- (i) Cost of artificial limb : Rs. 2,99,470/- (ii) Compensation for loss of earning : Rs. 4,74,300/- (iii) Compensation towards medical expenditure : Rs. 2,25,000/- (iv) Compensation towards conveyance : Rs. 80,000/- (v) Compensation towards special diet : Rs. 20,000/- (vi) Compensation towards pain and suffering : Rs. 1,00,000/- (vii) Compensation towards loss of amenities of life : Rs. 1,00,000/- (viii) Compensation towards disfiguration : Rs. 1,00,000/- Total : Rs. 13,98,770/- 17. The appeal is allowed and the award amount is enhanced from Rs.5,24,000/- to Rs.13,98,770 along with interest @7.5% per annum from the date of filing of the petition till realization. 1,00,000/- (vii) Compensation towards loss of amenities of life : Rs. 1,00,000/- (viii) Compensation towards disfiguration : Rs. 1,00,000/- Total : Rs. 13,98,770/- 17. The appeal is allowed and the award amount is enhanced from Rs.5,24,000/- to Rs.13,98,770 along with interest @7.5% per annum from the date of filing of the petition till realization. Provided that the appellant shall not be entitled to any interest on the cost of Rs.2,99,470/- towards the artificial limb. 18. The enhanced award amount along with interest be deposited by respondent No.3 with UCO Bank, Delhi High Court Branch A/c Virender Singh by means of a cheque through Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No. 09310356400) within 45 days. 19. The order of disbursement of the enhanced award amount shall be passed on the next date of hearing. 20. List for directions on 22nd April, 2010. 21. All pending applications stand disposed of. 22. Copy of this order be given 'Dasti' to learned counsel for the parties under the signature of Court Master.