$~28 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
18. h November, 2016 % + MAC.APP. 58/2008 RAMESH CHAND versus ..... Appellant Through: Mr. Pankaj Kumar, Advocate SUBHASH CHAND & ORS ........ RESPONDENTS
Through: Mr. J.P.N. Shahi, Mr.Pankaj Seth, Advocates for respondent no.3.
1. CORAM: HON'BLE MR. JUSTICE J.R. MIDHA JUDGMENT (ORAL) The appellant has challenged the award of the Claims Tribunal whereby the compensation of Rs.2,29,830/- has been awarded to the appellant. The appellant is seeking enhancement of the award amount.
2. The accident dated 13th October, 2004 resulted in multiple laceration on the chin, loss of maxilla, ectropian eyelid, laceration upper/lower lip, stiff shoulder and neck, chest wall disfigured, tightness of auxiliary fold, limited abduction, facial asymmetry, grade II rhinolalia, cold intolerance over forehead, (left side) face crushed, bone exposed, avulsion of tissue, inability to eat, recurrent ulceration (left) foot, reduced vision, dry eye, ectropion (left) lower eyelid, reduced shoulder (left) mont (overhead induction), itching of grafted donor area, ectropion (left) lower eyelid and epiphora, congestion MAC.APP.58/2008 Page 1 of 6 lower forms and bulbar conjunctiva, globe dystopia, oroantral fistula communication to exterior, loss of lip alveolus lipsel absent, pect major flap is covering lat maxilla, inability to close left eye, difficulty in breathing from left nostril, inability to blow air from mouth due to incompetent peri oral muscles, inability to chew food due to lack of left upper alveolus, drooling of saliva, inability to completely abduct left upper limb , deformity at donor site at left side chest, dorsum of left foot, scar over left iliac crest region noted and difficulty in opening mouth.
3. The appellant was admitted to Safdarjung Hospital on 26th April, 2005 and was discharged on 17th May, 2005. He was again admitted on 8th May, 2006 and was discharged on 12th June, 2006. The appellant was again admitted on 27th November, 2006 and was discharged on 4th December, 2006 from Lok Nayak Hospital. The appellant underwent nine surgeries for which he remained in hospital for 181 days. The appellant lost his job and cannot eat solid diet. The appellant is unable to close his left eye and there is disfigurement of his face and chest. He is unable to move his left shoulder.
4. The injuries suffered by the appellant resulted in 31.5 % permanent disability relating to nose, cheek, upper lip, eye, alveolus, chest, upper limb, iliac crest, foot of left side and left lower lid cicatricial ectropion leading to post traumatic disfigurement of face, eye (left), chest, foot and restriction of (left) upper limbs movements.
5. The Claims Tribunal awarded Rs.2,29,830/- as per the break up given hereunder:-
"Medical expenses Pain and sufferings : : Rs. 32,330.00 Rs. 1,00,000.00 MAC.APP.58/2008 Page 2 of 6 Special Diet Conveyance Loss of earnings Total : : : : Rs. 20,000.00 Rs. 10,000.00 Rs. 67,500.00 Rs. 2,29,830.00 6. Learned counsel for the appellant urged at the time of hearing that the Claims Tribunal has not awarded any compensation for disfiguration and loss of amenities of life. Although the appellant’s face has been totally disfigured, the Claims Tribunal did not award even a single rupee to the appellant as compensation for disfiguration. The Claims Tribunal has also not awarded any compensation for loss of earning capacity on the basis of permanent disability suffered by the appellant. The compensation awarded by the Claims Tribunal under the head of pain and sufferings is on the lower side. The Claims Tribunal has not awarded any compensation for future treatment. It is further submitted that the appellant could not afford private medical treatment. It is further submitted that the Claims Tribunal awarded interest @ 7% per annum against the consistent rate of 9% per annum awarded by this Court and Supreme Court.
7. On 24th October, 2016, learned counsels for the parties agreed to make an endeavour to resolve the matter through conciliation. The appellant visited the office of the Regional Manager of New India Assurance Company Limited on 9th November, 2016 when he was examined by the Committee comprising of senior officers, doctor as well as counsels. After examining his condition, New India Assurance Company Limited offered compensation of Rs.10 lakh to the appellant which was not accepted by him.
8. The appellant is present in Court and his condition has been MAC.APP.58/2008 Page 3 of 6 seen by this Court as well as by learned counsels for both the parties. The disfiguration of the appellant cannot be explained in words and therefore, the photograph of the appellant is annexed as Annexure ‘A’ to this judgment. This Court is of the view that the appellant has suffered the worst possible disfiguration and therefore, compensation of Rs.2 lakh is awarded to the appellant as compensation for disfiguration.
9. The appellant underwent nine surgeries for which he remained in hospital for 181 days. Considering the pain and suffering undergone by the appellant, the compensation for pain and sufferings is enhanced from Rs.1 lakh to Rs.3 lakh and Rs.3 lakh is awarded towards loss of amenities of life.
10. The appellant present in Court submits that he was working as a motor mechanic at the time of the accident earning Rs.67,500/- per annum as per the income tax returns. He further submits that he has lost his job because of the accident and he is unable to work thereafter. Considering the present condition of the appellant, the functional disability of the appellant is taken as 35%. Taking the income of the appellant as Rs.67,500/- per annum as per his income tax returns, adding 50% towards future prospects and applying the multiplier of 18 and taking functional disability of 35%, the loss of earning capacity is computed to be Rs.6,37,875/-.
11. The compensation awarded to the appellant towards treatment, conveyance and special diet is also on a lower side. The Claims Tribunal has not awarded any compensation to the appellant towards future treatment. The Claims Tribunal has not awarded any compensation for attendant. If the petitioner had taken treatment in a MAC.APP.58/2008 Page 4 of 6 private hospital for the nine surgeries and remained in hospital for 181 days, the cost of medical treatment itself would have been more than Rs.20 lakh. However, since the appellant could not afford private medical treatment and took the treatment at the government hospitals, a meagre medical expenditure of Rs.32,330/- had been awarded to him. The compensation for medical treatment, future medical treatment, conveyance, special diet and attendant charges is enhanced and Rs.1,32,330/- is awarded to the appellant under above heads.
12. The Claims Tribunal has awarded interest @ 7% per annum which is on a lower side considering that the Supreme Court as well as this Court has consistently awarded the interest @ 9% per annum.
13. The appellant is entitled to total compensation of Rs.15,70,205/- along with interest @ 9% per annum from the date of institution of the claim i.e. 17th March, 2005 as per break up given hereunder :-
"Pain and suffering s Loss of amenities of life Loss of earnings capacity Disfiguration Medical expenses, Future medical treatment, Conveyance, Special diet & Attendant charges. Total : : : : : : Rs. 3,00,000/- Rs. 3,00,000/- Rs. 6,37,875/- Rs. 2,00,000/- Rs. 1,32,330/- ____________ Rs. 15,70,000/- 14. The appeal is allowed and the award amount is enhanced from Rs.2,29,830/- to Rs.15,70,205/- along with interest @ 9% per annum from the date of institution of the claim i.e. 17th March, 2005. MAC.APP.58/2008 Page 5 of 6 15. At the request of learned counsel for respondent no.3, it is clarified that the compensation awarded under the heads of pain and sufferings, loss of amenities of life and disfiguration have been computed in the peculiar facts of this case.
16. At the request of the appellant, it is directed that the photograph attached to this judgment as Annexure ‘A’ shall neither be released on the website nor be published in the law journals in order to protect the appellant’s right of privacy. However, the copy of the judgment along with the photograph be given dasti to counsel for both the parties under the signature of the Court Master.
17. Enhanced award amount be deposited by respondent no.3 along with up to date interest with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Ramesh Chand within four weeks.
18. Respondent no.3 shall file the affidavit along with proof of deposit and the computation of interest before the next date, with advance copy to counsel for the appellant.
19. The order of disbursement shall be passed after the deposit of the enhanced award amount.
20. List for disbursement of the award amount on 20th December, 2016. J.R. MIDHA, J.
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