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2010 DIGILAW 517 (DEL)

Sikander v. Ravinder Singh

2010-04-07

J.R.MIDHA

body2010
JUDGMENT : J.R. Midha, J. The Appellant has challenged the award of the learned Tribunal whereby compensation of Rs. 2,81,303 has been awarded to the Appellant. The Appellant seeks enhancement of the award amount. 2. The accident dated 25.7.2005 resulted in fracture of both the legs of the Appellant. The Appellant's right leg below knee was amputated. The Appellant remained in hospital from 26.7.2005 to 28.8.2005, 29.8.2005 to 13.10.2005 and 23.10.2005 to 2.11.2006. 3. Claims Tribunal awarded Rs. 30,000 for pain and suffering, Rs. 6,846 towards medical expenditure, Rs. 10,000 towards conveyance and special diet, Rs. 15,224 towards loss of income during treatment and Rs. 2,19,233 towards loss of earning capacity. The total compensation awarded is Rs. 2,81,303. 4. The learned Counsel for the Appellant urged following grounds at the time of hearing of this appeal: (i) Compensation for loss of income be awarded for a period of one year. (ii) Compensation for loss of earning capacity due to permanent disability be enhanced. (iii) Compensation for pain and suffering be enhanced. (iv) Compensation be awarded for loss of amenities of life and disfiguration. 5. Vide certificate dated 18.11.2005, the permanent disability of the Appellant was assessed by LNJP Hospital to be more than 40 per cent. The Appellant examined the witness, namely Rita Mehta, Medical Social Worker who deposed that as per the Workmen's Compensation Act, the permanent disability suffered by the Appellant was 60 per cent. However, since the Board constituted by LNJP Hospital has not specified the exact percentage of disability, vide order dated 10.11.2009, the Medical Superintendent of the LNJP Hospital was directed to determine the extent of permanent disability suffered by the Appellant. In pursuance to the above order, LNJP Hospital constituted the Board which again examined the Appellant and issued a fresh disability certificate dated 4.1.2010 as per which permanent disability of the Appellant has been assessed to be 80 per cent in relation to both lower limbs. The Appellant was a fruit vendor and the loss of earning capacity of the Appellant is taken to be 55 per cent in respect of the whole body. The Claims Tribunal has taken the minimum wages of Rs. 3,044.90 to compute the loss of earning capacity. The Appellant was a fruit vendor and the loss of earning capacity of the Appellant is taken to be 55 per cent in respect of the whole body. The Claims Tribunal has taken the minimum wages of Rs. 3,044.90 to compute the loss of earning capacity. However, the Claims Tribunal has not taken the increase in minimum wages due to inflation and rise in price index into consideration in terms of the judgments of this Court in the cases of Kanwar Devi and Others Vs. Bansal Roadways and Others, (2008) ACJ 2182 ; Dwijendra Nath Roy Vs. Union of India (UOI) and Others, (2009) ACJ 1921 and U.P. State Road Trans. Corporation v. Munni Devi 2010 ACJ 2753 (Delhi). 6. Following the aforesaid judgments, the income of the Appellant is taken to be Rs. 4,567 [(Rs. 3,044.90 + Rs. 6,090) 2]. Taking the income of the Appellant to be Rs. 4,567, applying multiplier of 15 and taking the loss of earning capacity as 55 per cent the loss of earning capacity of the Appellant is computed to be Rs. 4,52,133 [55 per cent of (Rs. 4,567 x 12 x 15)]. 7. The Claims Tribunal has awarded a sum of Rs. 15,224 towards loss of income for five months. The Appellant remained under treatment for about one year and, therefore, the loss of income for one year is enhanced from Rs. 15,224 to Rs. 54,804 (Rs. 4,567 x 12). 8. The Claims Tribunal has awarded a sum of Rs. 30,000 towards pain and suffering. No compensation has been awarded towards loss of amenities of life and disfiguration. The learned Counsel refers to and relies upon a judgment of Delhi High Court in the case of Oriental Insurance Co. Ltd. v. Vijay Kumar Mittal 2008 ACJ 1300 (Delhi), where this Court examined all the previous judgments with respect to the non-pecuniary compensation awarded in the cases 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 per cent and above. The findings of this Court are reproduced here-in-under: 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. The findings of this Court are reproduced here-in-under: 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. 9. Following the aforesaid judgment, the compensation for pain and suffering is enhanced from Rs. 30,000 to Rs. 1,00,000. Rs. 1,00,000 is awarded towards loss of amenities of life and Rs. 1,00,000 is awarded towards disfiguration. 10. Appellant is entitled to total compensation of Rs. 8,23,783 (Rs. 4,52,133 for loss of earning capacity + Rs. 54,804 towards loss of income for one year + Rs. 1,00,000 towards pain and suffering + Rs. 6,846 towards medical expenditure + Rs. 10,000 towards conveyance and special diet + Rs. 1,00,000 towards amenities of life and Rs. 1,00,000 towards disfiguration). 11. The appeal is allowed with costs. The amount awarded is enhanced from Rs. 2,81,303 to Rs. 8,23,783 along with interest at the rate of 7.5 per cent per annum from the date of filing of the claim petition up to the date of notice of deposit under Order 21, Rule 1 of the Code of Civil Procedure. The cost of appeal is assessed at Rs. 25,000 based on the memo of fees filed by the counsel for the Appellant at the time of hearing of this appeal.