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2010 DIGILAW 82 (DEL)

JAGBANDHU BANERJEE v. SANTOSH KUMAR

2010-01-19

J.R.MIDHA

body2010
JUDGMENT : J.R. Midha, J. The appellant has challenged the award of the learned Tribunal whereby compensation of Rs. 1,64,000 has been awarded to him. The appellant seeks enhancement of the award amount. 2. The accident dated 19.8.2003 resulted in grievous injuries to the appellant. The appellant was standing on the red light on his scooter when he was hit by Maruti car bearing No. DL-1CC-7589 from behind. The appellant fell down from his scooter and suffered fracture of femur bone of his left leg. The appellant was admitted to Safdarjung Hospital and was operated upon for fixing a plate. The plate fixed by the surgeon inside the leg deflected from the fixed position which did not improve with treatment and finally another surgery was performed in Safdarjung Hospital in April 2004 for removal of the plate and fixing a rod. The appellant remained hospitalised for the second time from 13.4.2004 to 22.4.2004. On 30.11.2005, the doctors told the appellant to walk slowly. The appellant's left leg has become shorter and his disability has been assessed as 12 per cent vide disability certificate, Exh. P1. 3. The learned counsel for the appellant has urged the following grounds at the time of hearing of this appeal: (i) Compensation for pain and suffering be enhanced. (ii) Compensation for loss of amenities of life be enhanced. (iii) Compensation for disfiguration be awarded. (iv) Compensation for loss of income and earning capacity be enhanced. (v) Compensation for conveyance be enhanced. 4. Appellant remained under treatment for about eight months and considering that he underwent two surgeries during this period and remained under immense pain and suffering, the compensation for pain and suffering and loss of amenities of life awarded by the learned Tribunal is on a lower side. The compensation for pain and suffering is enhanced from Rs. 30,000 to Rs. 50,000. The compensation towards loss of amenities of life is enhanced from Rs. 5,000 to Rs. 15,000. The appellant has suffered shortening of leg and, therefore, Rs. 15,000 is awarded for disfiguration. 5. The learned Tribunal has awarded Rs. 15,000 for loss of income during the period of treatment by taking the difference between the income tax return before the accident and after the accident. During the financial year 2002-03, the appellant's income was Rs. 88,227 which had reduced to Rs. 63,181 in 2004-05. 15,000 is awarded for disfiguration. 5. The learned Tribunal has awarded Rs. 15,000 for loss of income during the period of treatment by taking the difference between the income tax return before the accident and after the accident. During the financial year 2002-03, the appellant's income was Rs. 88,227 which had reduced to Rs. 63,181 in 2004-05. The difference between income of these years comes to Rs. 25,046 (Rs. 88,227-Rs. 63,181). The learned Tribunal has awarded Rs. 15,000 for loss of income during the period of treatment which is enhanced to Rs. 25,000. 6. The learned Tribunal has awarded Rs. 68,817 towards loss of earning capacity due to permanent disability by taking the permanent disability of the appellant in respect of whole body as 6 per cent. There is no evidence on record to the effect that the permanent disability in respect of the whole body was 6 per cent and the learned Tribunal has drawn this presumption without any basis. Considering that the appellant's leg has been shortened, the rod has been inserted and the appellant would not be in a position to drive a two-wheeler and shall also have difficulty in running and climbing, the permanent disability of the appellant is taken to be 12 per cent in respect of the whole body. The loss of earning capacity of the appellant is, therefore, enhanced from Rs. 68,817 to Rs. 1,37,634 (Rs. 88,227 x 13 x 12 per cent). 7. The learned Tribunal has awarded Rs. 10,000 towards conveyance and special diet. Considering that there is shortening of leg and the appellant is unable to drive a two-wheeler due to insertion of a rod, the compensation for conveyance certainly needs enhancement. The learned Tribunal has awarded Rs. 10,000 for conveyance and special diet out of which compensation for special diet is treated to be Rs. 5,000 and the compensation for conveyance is enhanced from Rs. 5,000 to Rs. 25,000. 8. The appellant is entitled to total compensation of Rs. 3,07,634 (Rs. 35,000 towards medical expenditure + Rs. 50,000 towards pain and suffering + Rs. 15,000 for loss of amenities of life + Rs. 25,000 for loss of income + Rs. 1,37,634 for loss of earning capacity due to permanent disability + Rs. 25,000 towards conveyance + Rs. 5,000 for special diet + Rs. 15,000 for disfiguration). 9. The appeal is allowed and the award amount is enhanced from Rs. 15,000 for loss of amenities of life + Rs. 25,000 for loss of income + Rs. 1,37,634 for loss of earning capacity due to permanent disability + Rs. 25,000 towards conveyance + Rs. 5,000 for special diet + Rs. 15,000 for disfiguration). 9. The appeal is allowed and the award amount is enhanced from Rs. 1,64,000 to Rs. 3,07,634. The learned Tribunal has awarded interest at the rate of 9 per cent per annum which is not disturbed on the original award amount of Rs. 1,64,000. However, on the enhanced award amount, the rate of interest shall be at the rate of 7.5 per cent per annum from the date of filing of the petition till realization.