Yogender vs Surender Singh

J.R. Midha, J.—The Appellant has challenged the award of the learned Tribunal whereby compensation of Rs. 4,52,470/- has been awarded to the Appellant. The Appellant seeks enhancement of the award amount.

The accident dated 24th January, 2001 resulted in grievous injuries to the Appellant. The Appellant was boarding the bus bearing No. DL-IP-6475 at Durga Puri Chowk bus stand when the driver moved and accelerated the bus due to which the Appellant lost his balance, fell down and was crushed under the rear wheel of the bus.

Both the pelvic bones of the Appellant were fractured due to the accident for which he was initially admitted in the hospital for 46 days from 24th January, 2001 to 12th March, 2001 where a rod was inserted in the left leg and both the legs were put under plaster. The rod inserted in the Appellant''s left leg later broke down and, therefore, he was again admitted in the hospital from 11th April, 2002 to 24th April, 2002 for insertion of a new rod. The new rod also got infected causing pus formation and, therefore, the Appellant was again admitted in the hospital from 9th October, 2002 to 14th October, 2002.

The Appellant appeared before the Claims Tribunal as PW-3 and proved the discharge summaries as Ex.PW3/A, Ex.PW3/B and Ex.PW3/E. The certificate from the neurology department of AIIMS Hospital was proved as Ex.PW3/C. The discharge certificate issued by GTB Hospital was proved as Ex.PW3/D. The OPD slips for endodilation were proved as Ex.PW3/F, Ex.PW3/G, Ex.PW3/H and Ex.PW3/J. The medical bills were proved as Ex.PW3/1 to Ex.PW3/13. The Appellant had to undergo endodilation for cleaning the blockage of the urethral passage every 15 days.

The permanent disability of the Appellant as per the disability certificate Ex.PW3/D is 50%. The Claims Tribunal has awarded Rs. 3,66,795/- towards loss of earning capacity due to 50% permanent disability, taking the minimum wages into consideration and applying the multiplier of 15. Rs. 30,000/- has been awarded for loss of studies, Rs. 5,675/- towards medical bills, Rs. 10,000/- towards iron rod, Rs. 30,000/- towards pain and suffering and Rs. 10,000/- towards conveyance, special diet and attendant. The total compensation awarded is Rs. 4,52,470/-.

The learned Counsel for the Appellant has urged the following grounds at the time of hearing of this appeal:

(i) The loss of earning capacity be taken as 100% as the Appellant is not able to do any work.

(ii) The compensation for medical expenses be enhanced.

(iii) The compensation for future treatment including the replacement of the hip by awarded.

(iv) The compensation for pain and suffering and conveyance be enhanced.

(v) The compensation be awarded for loss of amenities of life, disfiguration and loss of matrimonial prospects.

The present condition of the Appellant is that he has to undergo surgery for hip replacement. The Appellant has also suffered blockage in urinal passage for which he has to undergo endodilatation every fortnightly for removal of the blockage in the urinal passage. The Appellant led additional evidence before this Court to prove that he was studying in 8th standard at the time of the accident and had a brilliant educational record. The original progress report was proved as Ex.PW3/A. The Appellant is also claiming compensation of Rs. 1,00,000/- for replacement of the hip which would cost approximately Rs. 1,00,000/-. The recommendation of the doctor is Ex.PW3/B and the estimated cost of the surgery is proved by Ex.PW3/C. The prescription with respect to the periodical surgery and endodilatation for removal of the urinal passage has been proved by Ex.PW3/D.

With respect to the loss of earning capacity, the Claims Tribunal has taken the loss of earning capacity as 50% on the basis of the disability certificate-Ex.PW3/D. The learned Counsel for the Appellant submits that the Appellant is not in a position to do any work and, therefore, the loss of earning capacity should be taken as 100%. Since the Appellant''s main problem relates to the blockage of the urinal passage for which he has to undergo endodilation every fortnight, the Appellant can do some work and, therefore, the loss of earning capacity assessed by the Claims Tribunal as 50% is upheld.

The Appellant is undergoing endodilation every fortnight which has been sufficiently proved by medical record, especially, Ex.PW3/D where AIIMS has certified that the Appellant is suffering from stricture of urethra and will require self dilation of the stricture on regular basis lifelong. For endodilation, the Appellant has to incur Rs. 5,760/- per annum towards cost of urethral catheter, Rs. 1,440/- per annum ( Rs. 60 x 2 x 12) towards fee of the doctor for removal of the blockage and Rs. 6,000/- per annum ( Rs. 250 x 2 x 12) towards travelling expenses to the doctor. The annual expenditure is to the tune of Rs. 13,200/- ( Rs. 1,440 + Rs. 6,000 + Rs. 5,760). Rs. 70,000/- is awarded to the Appellant towards future medical expenditure on the basis that the said amount be kept in fixed deposit and the interest thereon would be sufficient to meet the future medical expenses of the Appellant.

The Appellant has to undergo surgery for replacement of hip which is expected to cost Rs. 1,00,000/-. The original prescription of the doctor in this regard is Ex.PW3/B and the original estimate is Ex.PW3/C. As per Ex.PW3/C, the cost of the accessories for hip replacement has been certified to be Rs. .75,000/-. According to the Appellant, the medical expenditure for hip replacement would be to the tune of Rs. 30,000/-. The Appellant is, therefore, entitled to total expenditure of Rs. 1,00,000/- towards the hip replacement which shall include the cost of the accessories of Rs. 70,000/- and the medical expenditure of Rs. 30,000/-.

The Claims Tribunal has awarded a sum of Rs. 10,000/- to the Appellant towards conveyance, special diet and attendant. Considering that the Appellant is 50% disabled and is unable to walk without the help of crutches, the compensation awarded by the Claims Tribunal is on a lower side. The compensation of Rs. 10,000/- awarded by the Claims Tribunal is treated towards special diet and attendant. Considering that the Appellant cannot travel by public transport and has to travel by private transport, compensation of Rs. 25,000/- is awarded towards conveyance. The Claims Tribunal has awarded a sum of Rs. 30,000/- towards pain and suffering. However, no compensation has been awarded towards loss of amenities of life, disfiguration and loss of matrimonial prospects. The learned Counsel for the Appellant refers to and relies upon the judgment of this Court in the case of Oriental Insurance Co. Ltd. Vs. Vijay Kumar Mittal and Others, where the principles relating to the award of compensation towards pain and suffering, loss of amenities of life and disfiguration have been laid down by this Court. In the aforesaid judgment, 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 head of non-pecuniary damages for amputation of leg with permanent disability of 50% and above. The findings of this Court are reproduced herein under :

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.

Following the aforesaid judgment, compensation of Rs. 30,000/- towards pain and suffering is enhanced to Rs. 75,000/-. Further amount of Rs. 75,000/- is awarded towards loss of amenities of life, Rs. 75,000/- towards loss of matrimonial prospects and Rs. 50,000/- towards disfiguration.

The Appellant is entitled to total compensation of Rs. 8,92,470/- ( Rs. 3,66,795 + Rs. 30,000 + Rs. 5,675 + Rs. .10,000 + Rs. 10,000 + Rs. 70,000 + Rs. 1,00,000 + Rs. 25,000 + Rs. 75,000 + Rs. 75,000 + Rs. 75,000 + Rs. 50,000).

The appeal is allowed and the award amount is enhanced from Rs. .4,52,470/- to Rs. 8,92,470/- along with interest @7.5% per annum from the date of filing of the claim petition till notice of deposit under Order XXI Rule 1 of the Code of Civil Procedure.

The enhanced award amount along with interest be deposited by Respondent No. 3 with UCO Bank A/c Yogender, Delhi High Court Branch through Mr. Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No. 09310356400).

Upon the aforesaid amount being deposited, the UCO Bank is directed to release 10% of the same to the Appellant by transferring the same to the Saving Bank Account of the Appellant. The remaining amount be kept in fixed deposit in the following manner:

(i) Fixed deposit in respect of 10% of the amount for a period of one year in the name of the Appellant.

(ii) Fixed deposit in respect of 10% of the amount for a period of two years in the name of the Appellant.

(iii) Fixed deposit in respect of 10% of the amount for a period of three years in the name of the Appellant.

(iv) Fixed deposit in respect of 10% of the amount for a period of four years in the name of the Appellant.

(v) Fixed deposit in respect of 10% of the amount for a period of five years in the name of the Appellant.

(vi) Fixed deposit in respect of 10% of the amount for a period of six years in the name of the Appellant.

(vii) Fixed deposit in respect of 10% of the amount for a period of seven years in the name of the Appellant.

(viii) Fixed deposit in respect of 10% of the amount for a period of eight years in the name of the Appellant.

(ix) Fixed deposit in respect of 10% of the amount for a period of nine years in the name of the Appellant.

The interest on the aforesaid fixed deposits shall be paid monthly by automatic credit of interest in the Savings Account of the Appellant.

Withdrawal from the aforesaid account shall be permitted to the Appellant after due verification and the Bank shall issue photo Identity Card to the Appellant to facilitate identity.

No cheque book be issued to the Appellant without the permission of this Court.

The Bank shall issue Fixed Deposit Pass Book instead of the FD Rs to the Appellant and the maturity amount of the FD Rs be automatically credited to the Saving Bank Account of the beneficiary at the end of the FD Rs.

No loan, advance or withdrawal shall be allowed on the said fixed deposit receipts without the permission of this Court.

Half yearly statement of account be filed by the Bank in this Court.

On the request of the Appellant, Bank shall transfer the Savings Account to any other branch according to the convenience of the Appellant.

The Appellant shall furnish all the relevant documents for opening of the Saving Bank Account and Fixed Deposit Account to Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No. 09310356400).

The learned Counsel for the Appellant submits that a sum of Rs. 1,00,000/- be released immediately to enable the Appellant to undergo the replacement of hip. The Appellant is given liberty to approach this Court along with the relevant documents whereupon the amount required for the replacement of hip shall be released directly to the hospital.

Copy of the order be given dasti to counsel for both the parties under the signatures of the Court Master.

Copy of this order be also sent to Mr. M.M. Tandon, Member-Retail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No. 09310356400) under the signature of Court Master.