18
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 486/2000 and CM No.7605/2009
Reserved on : 29th May, 2009
Date of Decision: 10th June, 2009
%
UNION OF INDIA ..... Appellant
Through : Mr. A.K. Bhardwaj, Sr. Adv.
with Mr. M.P. Singh, Adv.
versus
SHAM LAL & ORS. ..... Respondents
Through : Respondent in person.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may
be allowed to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in the Digest?
JUDGMENT
1. The appellant has challenged the award of the learned
Tribunal whereby compensation of Rs.6,67,200/- has been
awarded to respondent No.1.
2. The accident dated 30th June, 1996 resulted in grievous
injuries to respondent No.1 and he has become paraplegic
with permanent disability certified to be 90% as per
Ex.PW-3/B. The learned Tribunal awarded compensation of
Rs.6,67,200/- towards the loss of income to the claimant.
However, no compensation has been awarded for pain,
suffering, loss of amenities of life, future medical treatment,
FAO.No.486/2000 Page 1 of 13
etc.
3. The appellant has challenged the impugned award on
various grounds:-
(i) The claimant/respondent No.1 having been
prematurely retired on medical grounds is entitled
to and is receiving invalid pension apart from
benefits of gratuity, leave encashment, provident
fund, etc. received by him.
(ii) The claimant had 12 years service left with All
India Radio and, therefore, the multiplier of 13 is
not appropriate.
(iii) The amount awarded is highly excessive
considering that the claimant was earning only
Rs.3,600/-.
(iv) The driver of the Government vehicle was not
rash and negligent as he saved the precious life of
a child and in the process hit the pavement.
4. The appellant‟s contention that the claimant has been
prematurely retired on medical grounds and is receiving
invalid pension, is not a ground for denying compensation to
him. The claimant is entitled to compensation according to
the well settled principles of motor accident compensation.
5. With respect to the contention of the appellant that the
amount is excessive, this Court is of the view that the
compensation is grossly inadequate. The learned Tribunal
has only computed the loss of income and has not
FAO.No.486/2000 Page 2 of 13
considered the other heads for award of compensation suchas compensation for pain and suffering, compensation for
loss of amenities of life, future medical treatment, etc. Even
the compensation for loss of income is inadequate as the
learned Tribunal has not taken the future prospects of the
claimant into consideration.
6. With respect to the contention of the appellant that the
driver of the Government vehicle was not rash and negligent
as he saved the precious life of the child and in the process
hit the pavement, the evidence on record is contrary and
clearly points out to the rashness and negligence of the
driver of the Government vehicle. In fact, the accident has
been admitted by the driver of the Government vehicle. It is
also admitted that the Government vehicle did hit the patri.
However, the explanation given that the claimant lost his
balance and fell along with other cyclists has been rightly
rejected by the learned Tribunal because the injuries are so
serious and the claimant‟s spine got fractured at so many
places that it was not possible by simple fall by
entanglement of the cycles. The statement of the driver that
the Government vehicle did not touch the cycle is not
supported by the evidence which points out to the contrary.
The finding of the learned Tribunal that the accident
occurred due to the rash and negligent driving of the
Government vehicle is upheld.
7. For the aforesaid reasons, the appeal is dismissed. The
FAO.No.486/2000 Page 3 of 13
claimant has filed the cross-objections before this Court forenhancement of the compensation. The claimant has also
led additional evidence in support of the cross-objections.
8. The claimant was admitted in BLK Memorial Hospital,
Pusa Road, New Delhi on 13th May, 2009 and remained there
till 15th May, 2009. The hospital has carried out various tests
including Blood Test, X-Ray Cervical Spine, MRI Cervical
Spine, MRI Dorsal Spine and the claimant has been examined
by various doctors including Dr. Suneel Kumar, Head of the
Department, Orthopedic Surgery who appeared in the
witness box as PW-1 before this Court and was cross-
examined by the learned counsel for the appellant.
9. The report of Dr. Suneel Kumar along with the complete
record of the patient in BLK Memorial Hospital has been
exhibited as Ex.PW1/1 collectively. According to the
statement of Dr. Suneel Kumar and his report – Ex.PW1/1,
the claimant is quadriparetic (weakness of limbs). The
claimant is unable to sit or stand. He is totally bed ridden
and dependent upon his attendants even for most miniscule
activity. His activities are restricted in all spheres of life. Dr.
Suneel Kumar is of the view that implantation of a device
called Baclofen Pump would improve his quality of life and he
may even be able to stand up with some support. The cost
of the implantation of Baclofen Pump is approximately
Rs.8,00,000/- to Rs.9,00,000/-. The surgical procedure shall
take two days of admission of the claimant in the hospital.
FAO.No.486/2000 Page 4 of 13
The implantation of the device shall have to besupplemented with intensive rehabilitation programme. The
doctor has submitted in his report that the approximate cost
of transportation and physiotherapy charges for a period of
one year shall be Rs.3,000/- per day. However, on being
asked to provide physiotherapy at hospital at subsidized
rates, the doctor agreed that the physiotherapy along with
hospital charges of bed and meals shall be provided at the
rate of Rs.1,000/- per day and rehabilitation programme
would require at least 6-8 weeks. PW-1 has further stated in
his report that the claimant would require attendant which
would cost about Rs.8,000/- per month. Considering that the
claimant belongs to the poorest strata of the society, full
time attendant may not be trained to give him support and
physiotherapy and Rs.8,000/- per month is on a higher side,
Dr. Suneel Kumar agreed that the hospital shall provide a
nursing attendant to visit the claimant six days a week to
provide physiotherapy as well as other support required by
him at the cost of Rs.5,000/- per month.
10. From the testimony of PW-1, Dr. Suneel Kumar and
Ex.PW1/1, it is proved that the claimant shall require the
following treatment in respect of his present condition:-
(i) Implantation of Baclofen Pump cost of
approximately Rs.8,00,000/- to Rs.9,00,000/-.
(ii) After the surgery, intensive rehabilitation
programme costing Rs.1,000/- per day for a
FAO.No.486/2000 Page 5 of 13
period of 6-8 weeks.(iii) Nursing attendant from the hospital to attend to
the claimant six days a week costing Rs.5,000/-
per month.
(iv) Motorized Wheel Chair costing Rs.1,50,000/-.
11. The learned amicus curiae submits that the claim
petition was filed before the learned Tribunal under Section
166 of the Motor Vehicles Act and the complete evidence
was led before the learned Tribunal. However, the learned
Tribunal on its own without any application from any of the
party and without any basis converted the claim petition to
Section 163A of the Motor Vehicles Act and awarded the
lower compensation. The learned counsel for the claimant
further submits that the negligence was duly proved by the
statement of the witnesses and, therefore, there was no
occasion for the learned Tribunal to convert the claim
petition under Section 166 of the Motor Vehicles Act to the
petition under Section 163A of the Motor Vehicles Act which
is a provision for no fault liability and can be invoked where
the claimants are not able to prove the negligence. The
learned Tribunal was in error in converting the claim petition
to Section 163A of the Motor Vehicles Act. The finding to this
effect is, therefore, set aside. The claim petition is treated to
be under Section 166 of the Motor Vehicles Act.
12. The claimant is entitled to non-pecuniary damages
including the compensation for pain and suffering and the
FAO.No.486/2000 Page 6 of 13
compensation for loss of amenities of life being unable towalk, run and sit, compensation for expectation of life on
account of injury and longevity of the life, disfigurement,
discomfort, inconvenience, hardship, disappointment,
frustration and mental stress in life. The Hon‟ble Supreme
Court in the case of R.D. Hattangadi vs. Pest Control
(India) Pvt. Ltd., 1995 ACJ 366 awarded Rs.1,50,000/-
under the head of loss of expectation of life. Following the
aforesaid judgment of the Hon‟ble Supreme Court, this Court
in the case of Virender Singh vs. Anand Prakash, 2007
RLR 532 awarded Rs.1,50,000/- towards pain and suffering
in respect of the claimant who had suffered 100% permanent
disability, Rs.1,50,000/- under the head of loss of expectation
of life and Rs.50,000/- towards depression and mental stress
in life. Relevant portion of the judgment is reproduced
hereunder:-
“30. Non pecuniary damages includes the
following:-(i) Pain and suffering. (ii) Damages for mental and physical shock. (iii) Loss of amenities of life which may include a variety of matters i.e. on account of injury the injured may not be able to walk, run or sit etc. (iv) Loss of expectation of life i.e. on account of injury normal longevity of the life of the person concerned is shortened. (v) Disfigurement. (vi) Discomfort or inconvenience,hardship, disappointment, frustration
and mental stress in life.FAO.No.486/2000 Page 7 of 13
31. Pain and suffering:- Pain and suffering
compensates victim for the physical and
mental discomfort caused by the injury.
Pain is physical; suffering is emotional.
While pain is the physiological response to
certain stimuli, suffering is psychological or
emotional response to pain.32. In the decision reported as R.D.Hattangadi
vs. Pest Control (India) Pvt. Ltd. 1995 ACJ
366 because of the accident, the appellant
in said case became a paraplegic and
suffered 100% permanent disability. Date
of accident was 20.5.1980. Appellant in
said case had remained hospitalized for a
period from 20.5.1980 to 2.8.1980.
Analyzing the law relating to non pecuniary
damages, compensation in sum of
Rs.1,50,000/- was awarded under the head
‘pain and suffering’.33. In the light of Hattangadi’s case (supra);
noting the period of hospitalization of
injured; the 100% physical disability
suffered by him, I award compensation in
sum of Rs.1,50,000/- under the head ‘pain
and suffering’.
34. Loss of expectation of life:- Compensation
for loss of expectation of life compensates
victim for the limitation, resulting from the
defendant’s negligence, on the injured
person’s ability to participate in and derive
pleasure from the normal activities of daily
life, or the individual’s inability to pursue
his talents, recreational interests, hobbies
or avocations. In essence, compensation for
loss of expectation of life compensates an
individual for loss of life and loss of the
pleasures of living.
35. In the Hattangadi’s case (supra)
compensation in sum of Rs.1,50,000/- were
awarded under the head ‘loss of
expectation of life’.
36. On the same analogy, I consider it
reasonable to award compensation in sum
of Rs.1,50,000/- under the head ‘loss of
expectation of life’.
FAO.No.486/2000 Page 8 of 13
37. Depression and mental stress in life:- A
person not only suffers injuries on account
of the accident but also suffers in mind and
body on account of the accident throughout
his life and a feeling is developed that he is
no more a normal man and cannot enjoy
the amenities of life as another normal
person can. The appellant is reduced to a
vegetable existence. I award compensation
in sum of Rs.50,000/- under the said head.”
13. Following the aforesaid judgments of the Hon‟ble
Supreme Court and this Court, a sum of Rs.1,50,000/- is
awarded towards pain and suffering and Rs.1,50,000/-
towards loss of amenities of life and loss of expectation of
life.
14. With respect to the pecuniary damages, a sum of
Rs.8,50,000/- is awarded for implantation of Baclofen Pump,
Rs.56,000/- is awarded for rehabilitation programme for eight
weeks @ Rs.1,000/- per day and Rs.1,50,000/- is awarded for
motorized wheel chair.
15. With respect to the requirement of a nursing attendant,
Rs.1,50,000/- is awarded for two and a half years calculated
@ Rs.5,000/- per month. The claimant is 62 years old and
considering the life expectancy of 65 years, the attendant
charges are allowed for a period of two and a half years.
16. With respect to the compensation for loss of income,
the learned Tribunal has not taken the future prospects into
consideration as per the recent judgment of the Hon‟ble
Supreme Court in the case of Sarla Verma Vs. Delhi
Transport Corporation, 2009 (6) Scale 129 decided on
15th April, 2009. However, considering that the claimant is
FAO.No.486/2000 Page 9 of 13
drawing some pension, computation of loss of income is not
being interfered with.
17. The learned Tribunal has not awarded any amount for
conveyance and special diet. Considering the facts and
circumstances of this case, Rs.15,000/- is awarded for special
diet and Rs.35,000/- towards conveyance. The total
compensation is enhanced by Rs.15,56,000/- (Rs.1,50,000/-
+ Rs.1,50,000 + Rs.8,50,000/- + Rs.56,000/- + Rs.1,50,000/-
+ Rs.1,50,000 + Rs.15,000/- + Rs.35,000/-).
18. The appeal is dismissed and the cross-objections are
allowed. The award of the learned Tribunal is enhanced from
Rs.6,67,200/- to Rs.22,23,200/-. Rs.12,06,000/- has been
awarded to the claimants towards the cost of implantation of
Baclofen Pump, rehabilitation programme, cost of nursing
attendant and purchase of motorized wheel chair. This
expense has yet to be incurred by the claimant and,
therefore, no interest is being awarded on this amount. With
respect to the remaining amount of Rs.3,50,000/- towards
the compensation for pain and suffering, loss of amenities of
life and loss of expectation of life, compensation for special
diet and conveyance, the interest @ 7.5% is awarded from
the date of filing of the petition i.e. 3rd January, 1997 up to
the date of the award by the learned Tribunal on 31 st July,
2000. No interest is being awarded after the date of the
award as the claimant did not file the appeal and the cross-
objections have been filed only on 20th May, 2009.
FAO.No.486/2000 Page 10 of 13
19. The enhanced amount be deposited with the Registrar
General of this Court within 30 days. With respect to the
compensation of Rs.12.06 lacs towards the installation of
Baclofen Pump, rehabilitation programme, nursing attendant
and cost of motorized wheel chair, the cheque be prepared in
the name of the Registrar General, Delhi High Court, who
shall keep the same in fixed deposit in the name of Registrar
General A/c Sham Lal for a period of six months with
cumulative interest and the said amount shall be released to
the concerned hospital and the supplier of the motorized
wheel chair upon the invoices being filed with this Court.
BLK Memorial Hospital is directed to start the treatment of
the claimant immediately upon the deposit of the award
amount. After the implantation of Baclofen Pump, BLK
Memorial Hospital shall raise the invoice in the name of the
claimant and shall submit to the learned amicus curiae who
shall file the same in this Court for release of the amount. It
is made clear that if the expenditure on treatment exceeds
Rs.8,50,000/-, BLK Memorial Hospital shall bear the same and
shall complete the treatment but shall not leave the
treatment in between and shall not claim any further amount
from the claimant. With respect to motorized wheel chair,
the order be placed with the supplier and the invoice be
submitted through the learned amicus curiae whereupon the
amount shall be released to the supplier. With respect to the
compensation of Rs.3,50,000/- towards pain and suffering,
FAO.No.486/2000 Page 11 of 13
loss of amenities of life and loss of expectation of life,
compensation for special diet and conveyance, the interest
awarded from the date of the institution of the claim petition
i.e. 3rd January, 1997 up to the date of the award i.e. 31st July,
2000 comes to Rs.93,889/-. The principal amount of
Rs.3,50,000/- along with interest of Rs.93,889/- comes to
Rs.4,43,889/-. The cheque for Rs.3,00,000/- be issued in the
name of UCO Bank A/c Shyam Lal for being kept in fixed
deposit for a period of five years on which monthly interest
shall be payable to the claimant which shall be credited in
the savings account of the claimant. Since the claimant is
90% disabled and unable to work, UCO Bank shall send the
monthly interest personally to the claimant as a special case.
The remaining amount of Rs.1,43,889/- be paid by the
appellant to the claimant by means of an account payee
cheque drawn in the name of the claimant.
20. Vide order dated 23rd April, 2009, this Court appointed
Mr. Pankaj Seth, Advocate as amicus curiae who has very
effectively assisted this Court in the present case. The
learned amicus curiae got the claimant admitted in the BLK
Memorial Hospital from 13th May, 2009 to 15th May, 2009 for
tests and medical opinion. The learned amicus curiae also
filed the cross-objections on behalf of the claimant and also
led the additional evidence of doctor from BLK Memorial
Hospital. It is further noted that the learned amicus curiae
visited the hospital on 13th May, 2009 to meet the concerned
FAO.No.486/2000 Page 12 of 13
doctors and request them to appear as a witness. This Court
records the appreciation for the learned amicus curiae for his
assistance. The fees of the learned amicus curiae is fixed at
Rs.15,000/-to be paid by Delhi High Court Legal Services
Authority.
21. List for compliance on 8th July, 2009.
22. Copy of this order be given „Dasti‟ to learned counsel
for the parties and learned amicus curiae under signatures of
Court Master.
J.R. MIDHA, J
JUNE 10, 2009
aj/j
FAO.No.486/2000 Page 13 of 13
