Ved Pal v. Kuldeep Singh and Ors.

(ii) The appellant was admitted in Lok Nayak Hospital on

28"" August, 2002 where he underwent second surgery of colostomy closure and soft skin grafting on 29"^ October, 2002 The appellant was discharged on 2"^^ November, 2002. The discharge summary was proved as Ex.PW-1/7.

(iii) The appellant was admitted in Lok Nayak Hospital on

1 August, 2003 where he underwent third surgery for colostomy closure on September, 2003. The appellant was discharged on ll"^ September, 2003. The discharge summary of Lok Nayak Hospital was proved as Ex.PW-1/8.

(iv) The appellant was again admitted in Lok Nayak

Hospital on August, 2004 where he was diagnosed with traumatic stricture urethra and he underwent SPC scopy/uretheroscopy and perineal uretheroplasty on 23' August, 2004. The appellant was discharged on 28"' September, 2004. The discharge summar>' has been proved as Ex.PW-4/1. The appellant proved the MAC.APP.No.545/2007 Page 4 of36 '50 medical record and MLCs as Ex.PW-1/5 to PW-1/8. The medical bills towards the medicines were proved as Ex.P-1 to P-92 vide Ex.PW-1/9. The appellant was advised to have an artificial leg implanted for which he obtained a quotation for A.K. Disarticulation Pvasthesis costing ?2,00,000/- from Navin Prosthetic & Orthotic Clinic.

6. The appellant was examined by the Medical Board constituted by Lok Nayak Hospital which certified his permanent disability as more than 40% due to left hip disarticulation with sigmoid colostomy and suprapubic systosmy. PW-3, Dr. Ajay Behl, CMO, Lok Nayak Hospital proved disability certificate Ex.PW-1/4. PW-3 fiirther deposed that the appellant cannot drive any vehicle due to amputation of hip joint. PW-3 further deposed that the appellant would require an artificial limb.

7. PW-4, Dr. Pawan Lai, Senior Resident (Surgery), Lok Nayak Hospital proved the treatment taken by the appellant. He deposed that the appellant would require regular follow up treatment for the rest of his life. He fiirther deposed that the urtheroplasty underwent by the appellant had very low success rate and opined the chances of his recovery to be very low considering that the pelvis of the appellant had been amputated and there was no support for surgical flab. He fiirther deposed that the nerves of the penis appeared to have been damaged due to the fracture of the pelvis which could result in impotency. He stated that the appellants marital life had suffered due to the injuries. IVIAC.APP.No.545/2007

8. PW-5, wife of the appellant deposed that she was taking tuitions at home and earning ^4,000/- which she had to stop as the appellant was permanently disabled and was even unable to answer natural calls and needs. She further deposed that he had engaged a part time maid servant to do household work as she could not leave her husband unattended. PW-5 further deposed that she was paying ?800/- per month to maid servant.

9. During the course ofhearing on 13^' April, 2012, this Court noted that the Medical Board, in the disability certificate Ex.PW- 1/4, has certified the permanent disability to the appellant to be more than 40%. However, this certificate does not specifically mention the extent of the permanent disability. More than 40% is uncertain as it would include everything from 41% to 100%. Learned counsel for tKe appellant pointed out that as per Entry 16 of Schedule 1 Part 11 of the Workmen's Compensation Act, 1923, the percentage of loss of earning capacit}' for amputation of hip was 90%. In that view of the matter, this Court directed the Medical Superintendent of Lok Nayak Hospital to again constitute a medical board for reassessment of the permanent disability of the appellant. This Court also noted that the appellant was continuing the treatment and also underwent surgeiy after the award. The appellant was therefore permitted to place the additional evidence on record with respect to his present condition.

10. The fresh Medical Board constituted by Lok Nayak Hospital examined the appellant on 20^"" July, 2012 and 2?"^ July, 2012 and assessed the permanent disability of the appellant to be 100% in f respect of left lower limb taking into consideration the impotence, skin dehiscence with discharge at Ischial Tuberosity, hip disarticulation (90% PPI) along with fracture of pelvis (healed) with absence of (left) ischium and (left) pubic bone (possible difficulty in prosthesis application additional 10%). With respect to impotency, the Board observed that the appellant had been on treatment for stricture urethra from the date of the accident in 2002 and 40% pelvic fracture was associated with this complication but the definite percentage could not be given as the appellant refused to undergo papaverine test.

11. In terms of the order dated 13^ April, 2012, the appellant submitted the additional evidence with respect to his present condition and further treatment which is as under:-

(i) The appellant has suffered complete loss of rectal ftmction and penile neurosis. He cannot sit for even 10 minutes due to the permanent disability. He has no control over the urine and is under continuous medical treatment.

(ii) On 11"" July, 2006, the appellant was admitted inLok Nayak

Hospital where he underwent surgery for internal urethrotomy on 19"^ July, 2006. The appellant was discharged on 22"^* July, 2006. The discharge summary has been proved as Ex. PW-1/9.

(iii) The appellant was again admitted in Lok Nayak Hospital on

(iv) The appellant is taking continuous treatment from Lok

Nayak Hospital. The OPD cards in respect of the treatment taken by him have been proved as Ex.PW-1/11 to PW-1/18. 5> The appellant proved the medical bills relating to treatment from July, 2007 as Ex.PW-1/21 to Ex.PW-1/90 accordingto which he has spent ?46,000/- during the said period.

(v) On 20"^ December, 2007, the appellant took the opinion of

Max Healthcare who advised the surgery for urethroplasty costing ^"12 lacs. The OPD card of the Max Healthcare has been proved as Ex.PW-1/19.

12. Learned counsel for the respondent has submitted that the income ofthe appellanthas not been duly proved and therefore, the minimum wages of ?3,126/- per month should be taken into consideration for computing the loss of earning capacity of the appellant due to permanent disability. Learned counsel for the respondent further submits that the appellant cannot undergo the surgery of urethroplast}' in view of the observations in paragraph 11 of the additional affidavit and therefore, the claim of ?12 lacs for the said surgery is not sustainable.

13. Learned counsel for the appellant has, on instructions, admitted that there are complications in undergoing the further surgery and therefore, the appellant has decided not to undergo further surgery. The claim of ?12 lacs towards the surgery for urethroplasty is therefore given up by the appellant.

14. Law with respect to grant of compensation in injury cases

14.1. The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non-pecuniar>' damages. Pecuniary damages also known as special damages are generally designed to make good the pecuniary loss MAC.APP.No.545/2007 Page 8 of36 u which is capable of being calculated in terms of money whereas non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc. The above list is not exhaustive and there may be special or additional circumstances depending on the facts in each case.

14.2. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., (1995) 1 see 551, a road accident resulted in 100% disability due to paraplegia below waist to a lawyer (retired Judge). The Supreme Court observed that no amount of compensation can restore the physical frame of the appellant. That is why it has been said by Courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. In its very nature whenever a MAC.APP.No.545/2007 Page 9 of36 f Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life.

14.3. In Common Cause, A Registered Society v. Union ofIndia, (1999) 6 see 667, the Supreme Court held that the object of an award of damages is to give the plaintiff compensation for damage, loss or injur)' he has suffered. The Court further held that the elements of damage recognized by law are divisible into two main groups: pecuniary and non-pecuniary loss. While the pecuniary loss is capable of being arithmetically worked out, the nonpecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money: it is the best that a court can do.

14.4. In Nagappa v. Guriidayal Singh, (2003) 2 SCC 274, the Supreme Court held that if a collection of cases on the quantum of damages is to be useful, it must necessarily be classified in such a way that comparable cases can be grouped together. No doubt, no two cases are alike but still, it is possible to make a broad classification which enables one to bring comparable awards together. Inflation should be taken into account while calculating damages.

14.5. In Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 see 197, the road accident resulted in paraplegia due to serious injury to the spinal cord. The Supreme Court held that the object of providing compensation is to mitigate the hardship and place the claimant as far as possible in the same position financially as he was before the accident. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. The compensation awarded has to be "just" and not a bonanza. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and nonarbitrariness. A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident throughout his hfe 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 Supreme Court further held that while fixing compensation, suffering ofthe mind, shortening of life expectancy, loss of earning capacity, permanence of the disability, loss of amenities of life etc. are to be considered against the backdrop of age, marital status, unusual deprivation one has undertaken in one's life etc.

14.6. \n Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1, the Supreme Court held that adequate compensation must strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite part>' saying that nothing is payable. The Supreme Court further held that the case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price not only on the victim but even more so on the injured's family and attendants and the stress saps their energy and destroys their equanimity. The Apex Court further held that compensation has been computed keeping in mind that the brilliant career of the claimant has been cut short and there is, as of now, no possibility of improvement in the claimant's condition, the compensation will ensure a steady and reasonable income to the claimant for a time when the claimant is unable to earn for himself. 1»

14.7. InArvind Kumar Mishraw. New India Assurance Co. Ltd., (2010) 10 see 254, the road accident resulted in 100% permanent disability to a final year engineering student. The Supreme Court held the functional disability to be 70% to compute the loss of earning capacity according to the multiplier method. The Supreme Court further held that the whole idea of compensation is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for what he had suffered.

14.8. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, the Supreme Court considered a large number of precedents and laid down the following principles for computation of compensation in injury cases "General principles relating to compensation in injury cases

4. The provision of the Motor Vehicles Act, 1988 ('Act' for short) makes it clear that the award must be Just, which means that compensation should, to the extent possible, fi,illy and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result ofwrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer

V. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D.

5. The heads under which compensation is awarded in personal injury cases are the following:- Pecuniaiy damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period oftreatment; (b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injuty, where there is specific medical evidence corroborating the evidence of the claimant, that com.pensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of pennanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of 1 o t life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) - depends upon specific medical evidence regarding need for further treatment and cost thereof Assessment of nonpecuniary damages - items (iv), (v) and (vi) -involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant arid the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessar}' guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case."

14.9. In Sri Kumaresh v. Divisional Manager, National Insurance Co. Ltd., 2011 ACJ 1975, the appellant aged 20 years, suffered amputation of his right leg as a result of the accident. The Supreme Court held that the injury will not only severely affect his future prospects of earning, but will also permanently disable him for life and suffer necessary discomforts which accompany living without a leg. The Supreme Court awarded compensation of?10 lakhs for pain and suffering, loss of income during treatment, medical expenses for whole life, loss of future earnings, loss of amenities and enjoyment of life including loss of marital prospects, conveyance charges and food and nourishment. MAC.APP.No.545/2007 Page15 of36 Vi 14.10.In Ramachandrappa Royal Sundaram Alliance Insurance Co. Ltd., (2011) 13 see 236, the Supreme Court held that compensation to be awarded is not measured by the nature, location or degree of injury but rather by the extent or degree ofthe incapacity resulting from the injury. The compensation awarded should be just, fair and proper. The Supreme Court fiirther held that the term 'disability', as so used, ordinarily means loss or impairment ofearning power and has been held not to mean loss of a member ofthe body.

14.11. In Sri Laxman @ Laxman Mourya v. Divisional Manager, Oriental Insurance Co. Ltd., 2012 ACJ 191, the Supreme Court held that if the victim of an accident suffers permanent or temporar}' disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earning and victim's inability to lead a normal life and enjoy other amenities, which he would have enjoyed but for the disability caused due to the accident.

14.12. In Kavita v. Deepak, (2012) 8 SCC 604, the Supreme Court held that victims of accident, who are disabled either permanently or temporarily, adequate compensation should be awarded not only for the physical injur}' and treatment but also for the loss of earning and inability to lead a normal life and enjoy amenities, which one would have enjoyed had it not been for the disability. The Supreme Court further held that the amount awarded under the head of loss of earning capacity is distinct and does not overlap with amount awarded for pain, suffering, loss of enjoyment of life and medical expenses.

14.13. In Oriental Insurance Company Ltd. v. V.S. Vijay Kumar Mittal, 2008 ACJ 1300, this Court discussed the principles relating to the award of non-pecuniary compensation towards pain and suffering, loss of amenities of life and disfiguration. This Court examined all the previous judgments with respect to the nonpecuniary compensation awarded in the case of permanent ^ disability and held that the Courts have awarded about ?3,00,000/under the heads of non-pecuniary damages for permanent disability of 50% and above. The findings of this Court are as under:-

-V ♦ been in ifhe had not sustained the injuries.

12. Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and non pecuniary damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money. Whereas, non pecuniary damages are those which are incapable of being assessed by arithmetical calculations.

13. Pecuniary loss may include the following:

(i) Special damages or pre-trial pecuniary loss.

(ii) Prospective loss of earnings and profits.

(iii) Medicinal expenses.

(iv) Cost of future care and other expenses.

14. Non pecuniar}' loss may include 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 injuiy 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 longevit>- of the life ofthe person concerned is shortened.

(v) Disfigurement.

(vi) Discomfort or inconvenience, hardship, disappointment, frustration and mental stress in life. xxxxx

18. In order to properly appreciate the contentions advanced by the learned counsel for the appellant, I note the following judgments:-

(i) B.N.Kumar vs. D.T.C., 118 (2005) DLT.36.

MM -V In said case, injured sustained crush injuries on his right leg leading to its amputation above knee in a road accident on 5"^ November 1987. He suffered a permanent disability of 85%. Noting various judgments wherein Courts had awarded ^3,00,000/under the head non-pecuniary damages, a Single Judge of this Court awarded ?75,000/- for 'pain and suffering' and ?2,00,000/- for 'continuing disability suffered by him'. Thus, a total of ?2,75,000/- was awarded under this head.

(ii) Fakkirappa vs. Yallawwa & Anr., 2004 ACJ 141

In said case, a mino^male child sustained grievous injury in a road accident which occurred on 8.5.2000 resulting in amputation of his left leg. below knee. Considering the gravity of injury suffered the injured. Division Bench of Kamataka High Court awarded following compensation under the head 'nonpecuniary damages'

(i) Pain and suffering: ?50,000/-

(ii) Loss of amenities of life: ?1,00,000/-

(iii) Loss of marriage prospects: f50.000/-

(iv) Damages for amputation of: ?1,50,000/leg before knee

(V) Loss of expectation of life: ?50,000/-

(iii) K. Shankar v. Pallavan Transport Corporation,

2001 ACJ 488 In said case, injured sustained serious injuries on his right leg in an accident on 14.2.1989. His right leg was amputated and he suffered permanent disability -V of 80%. A learned Single Judge of Madras High Court awarded the following compensation under the head 'non-pecuniary damages'.

(i) For permanent disability: f80,000/-

(ii) Pain and suffering: ^50,000/-

(iii) Loss of expectation of; ?50,000/life and proper marital alliance

(iv) For mental agony: ?1,00,000/-

(iv) M. Jaganathan v. Pallavan Transport

Corporation, 1999 ACJ 366 In said case, injured aged 45 years sustained injuries in an accident on 21.6.1990. The injury sustained by the injured resulted in the amputation of his left leg above the knee. Division Bench of Madras High Court awarded following compensation under the head 'non pecuniary damages':-

(i) Pain and suffering:?1,00,000/-

(ii) Compensation for: ?2,00,000/continuing permanent disability

(iii) Mental agony, torture and: ?75,000/-

(v) Bhagwan Singh Meena v. Jai Kishan Tiwari, 1999

ACJ 1200 In said case, the injured sustained severe and serious \j^) injuries on account of the road accident. His right leg was amputated. A learned Single Judge of Rajasthan High Court awarded a compensation of ?3,00,000/under the head non-pecuniary damages.

(vi) Dr. Gop Ramchandani v. Onlcar Singh & Ors.,

1993 ACJ577 In said case, in an accident which had occurred on 17.12.1985, injured sustained injuries because of which his left leg was amputated resulting in 50% permanent disability. A Single Judge of Rajasthan under the head 'non pecuniary damages'. Break-up of the compensation under the said head is as under:-

(i) Physical and mental agony: ?1,00,000/-

(ii) Permanent disabilit)-': ^1,00,000/-

(iii) Loss ofsocial life and loss: ?1,00,000/in profession

(vii) Jitendra Singh v. Islam, 1998 ACJ 1301

In said case, in an accident which had occurred on 14.02.1992, injured sustained injuries because of which his left leg was amputated resulting in 55% permanent disability. A Single Judge of Rajasthan under the head 'non pecuniary damages'.

(viii) Iranna v. Mohammadali Khadarsab Mulla &

Anr. 2004 ACJ 1396 In said case, on 19.4.2000, injured aged 7 years met with an accident. Due to the said accident, he sustained grievous injuries resulting in amputation of MAC.APP.No.545/2007 Page 21 of36 his left leg below knee. Tribunal awarded following compensation to him under the head 'non pecuniary damages'

(i) Pain and suffering: ?50,000/-

(ii) Loss of amenities, happiness,:,00,000/frustration

(iii) Loss ofmarriage prospects: ?50,000/-

(iv) Amputation of leg below knee:?1,50,000/and knee dis-articulation

Total: f[3],50,000/- From the afore noted judicial decisions, a trend which emerges is that between the years 1985 to 1990, Courts have been awarding about ?3,00,000/- under the head 'non pecuniary damages' for amputation of leg resulting in permanent disability of 50% and above."

14.14. In Sunil Kumar v. Inder Singh, 2012 (1) TAC 126, the claimants suffered impotency and 100% disability due to bilateral loss of testes and could not reproduce. This Court examined the law with respect to the pennanent disability arising out of the loss of sexual organs. Disability arising out of loss of sexual organs is not recognized as a permanent disability under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which defines only five categories of disablement, namely, visual impairment, locomotor/orthopedic disabilit)', speech and hearing disability, mental retardation and multiple disabilities. Schedule I of the Workmen Compensation Act, 1923 also does not consider the loss of sexual organs as a disability. This Court examined the American, Australian, British and South African law where the loss of sexual organs has been described as a permanent disability for assessment of compensation. This Court held the permanent disability arising out of the loss of sexual organs to be 50% to 60% for assessment of compensation. The relevant portion of this judgment is reproduced hereunder: "9....The learned Amicus Curiae has done extensive research work and has submitted that the Guidelines of the Government of India published on 13"^ January. 2001 for evaluating permanent disabilities under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, defines five categories of disablement, namely, visual impairment, locomotor/orthopedic disability, speech and hearing disability, mental retardation and multiple disabilities. The said guidelines did not define disability arising out the loss of sexual organs. The loss of sexual organs has also not been described in Schedule I to the Workmen's Compensation Act, 1923. The learned Amicus Curiae has submitted that according to the Medical Joum.als, the loss of testes result in loss of reproduction and side effect of breast enlargement, hot flashes, infertility, loss of sexual interest, osteoporosis, loss of muscle mass and weight gain, which materially affect the functional disability. It is submitted that in various countries, such as Australia and USA, loss of sexual organs is described as a disability and the percentage of disabilit}-' has been given for assessing the compensation. In Illinois, fifth most populous state of USA, the Illinois Workers' Compensation Commission provides for compensation equal to 162 weeks of the worker's income as compensation in case of loss of both testicles. Workers' Compensation Act, 1951 of Australian Capital Territory stipulates the disability arising out of loss of penis or both testicles as 47%. Workers Rehabilitation and Compensation Act, 1986 of South Australia provides for minimum compensation for loss of genital organs as US$ 1,40,320. The Accident Compensation Act, 1985 of Victoria in Australia provides for compensation of US$ 1,18,570 for loss of penis or both testicles. The Workers' Compensation and Rehabilitation Act, 2003 of Queensland in Australia defines the disability to be 50% for loss of genital organs and compensation of US$ 1,00,000 for the same. In New South Wales in Australia, the permanent disability for the loss of penis or both testicles is taken to be 47% and the compensation of US$ 47,000 is provided for the same. The JSB Guidelines for assessment of general damages in personal injury cases in UK provides for compensation up to £96,000/- for total loss of anal function and dependence on colostomy and £96,000 for loss of function and control of urinary bladder. The learned Amicus Curiae has also referred to the following two South African cases: 9.[1] In AA Mutual Insurance Association Ltd v Van Jaarsveldt 1974 (4) SA 729, the plaintiff, aged 34 years, sustained a dislocation of the cervical spine at C 4/5 level with an incomplete teitraplegia, a large segmental fracture of the left femur which also separated the greater fronchanter, a fracture of the superior and inferior romi on the right side of the pelvis, a fracture of the left 5"' rib, and a fracture of the 3'"'', 4^' and 5"' transverse processes. His treatment consisted of skull traction for a couple of months which was very painful. He was in hospital for six months, whereafter he was discharged walking with only a stick. The fractured femur was reduced and an intramedullaiy nail inserted. A catheter was inserted MAC.APP.No.545/2007 Page 24 of36 t:::* too and a vascular tube passed. He was completely paralysed for a period of 3V[2] months, whereafter he was able to walk on crutches before being able to walk with a stick. He had urinary tract infection and inflammation of the bladder. His sexual potency was also affected. The claimant was left with very serious disabilities. He had a slight spastic haemaplegia involving his dominant side and his right arm and hand were so badly affected that they could be described as a nuisance. His right leg was also affected by the same spastic haemaplegia. He walked with a tendency to drag the foot which, together with a clawing of the toes, caused his foot to catch occasionally while walking and resulted in his stumbling and falling. He could not walk more than 200 yards at a stretch. It was difficult for him to sit on a chair for too long. He had severe recurring cramps in both legs, particularly at night. The court awarded him ?8,66,000/- for the permanent disability. 9.[2] In Swanepoel v Road Accident Fund (1271/2004) 12008] ZANCHC 34, the claimant, Johannes Frederick Theron Swanepoel, instituted action against the defendant, the Road Accident Fund ("RAF"), for damages suffered by him in the roads. The claimant could not control his bladder and bowels and sometimes soiled himself. The claimant also became impotent. The High Court observed that due to sexual impotence, the claimant was unable to enjoy normal sexual relations with his wife. Inevitably, this had caused serious strains in their once happy and blissful marriage. The claimant also had to wear nappies for the rest of his life. Due to the claimant's incontinence which was the result of the accident, the claimant often soiled himself The High Court awarded the general damages of ^8,00,000/- to the claimant. X X X X X

24. The learned counsel for the appellant has placed on record the material downloaded from the internet to show the meaning of the medical terms used by the doctors in respect of the appellant and the side-effects of papaverine injection, which are reproduced hereunder:-

(i) Incontinent: In the website www.Medicine

Net.com. "Incontinent" has been described as "unable to control excretions, to hold urine in the bladder or keep feces in the rectum".

(ii) Anal Incontinence: In the website www.MedicineNet.com, "anal incontinence" has been described as "inability to hold feces in the rectum. This is due to failure ofvoluntary control over the anal sphincters. This failure results in the untimely passage of feces and gas".

(iii) Faecal Incontinence: In the website http://en.wikipedia.org/wiki/Fecal-

Incontinence. "Faecal Incontinence" has been described as "the loss of regular control of the bowels. Involuntary excretion and leaking are common occurrences for those affected. Subjects relating to defecation are often socially unacceptable, thus those affected may be beset by feeling of shame and humiliation. Some do not seek medical help and instead attempt to self-manage the problem. This can lead to social withdrawal and isolation, which can turn into cases of agoraphobia. Such effects may be reduced by undergoing prescribed treatment, taking prescribed medicine and making dietaiy changes". MAC.APP.?n1o.545/2007

(iv) Penile Doppler Test: In the website http:.//mvdoctortells.com/peniledoppler. "penile doppler test" is described as a sophisticated test to measure the blood flow in and out of the penis. The test gives important information as to the nature of penile function, both in the erect and nonerect state. Intracavemosal Injection of Vasoactive substance like Papaverine is the main treatment for Erectile Dysfunction. Priapism is a risk associated with intra penile injection. Priapism is the presence of a persistence, usually painful, erection of the penis unrelated to sexual stimulation or desire. It is a true urologic emergency that may lead to permanent erectile dysfunction and penile necrosis, if left untreated.

(v) The side effects of Papaverine injection are described in http://www.rxlist.com/papaverine-injectiondrug.html as "general discomfort, nausea, abdominal discomfort, anorexia, constipation or diarrhea, skin rash, malaise, vertigo, headache, intensive flushing of the face, perspiration, increase in the depth of respiration, increase in heart rate, a slight rise in blood pressure, and excessive sedation. X X X X X

34. In Robert vs. United Insurance Co. Ltd., II (1999) ACC 425, the claimant, aged 15 years, suffered fracture of pelvis and left humerus and bladder was distended in a road accident dated 17"' June, 1984. The claimant suffered difficulty in passing urine and his sexual life was affected for the rest of his life. The Supreme Court awarded additional amount of,00,000/- to the claimant under the head of pain, shock and suffering considering that the injuries were permanent in nature and had permanent adverse effect on his future healthy life including his sexual life. The compensation was enhanced from ?96,500/-to ^1,50,000/-.

35. In National Insurance Co. Ltd. vs. Krishnappa, I (2001) ACC 686 (DB), the claimant, aged 40 years, agriculturist, suffered fracture of vertebra with traumatic paraplegia with involvement of bladder and bowel dysfunction in a road accident dated 1?"^ July, 1997. The claimant was confined to a wheel chair and had no control over his bladder and bowel. He required constant assistance throughout his future life. The Kamataka High Court enhanced the compensation awarded under the head of injury, pain and suffering from ?16,000/- to ^"1,50,000/- and compensation under the head of inconvenience, hardship, disappointment frustration and mental stress undergone from ?45,000/- to ?75,000/-.

36. In New India Assurance Co. Ltd. vs. Har Lai, 11 (2009) ACC 162, the claimant aged 50 years suffered crush injuries on his right leg below knee which was amputated and his right hand was severed due to the accident dated 20"^ July, 2003. This Court upheld the Tribunal's award for ?2,00,000/- towards pain and suffering, ^"2.00,000/- towards loss of amenities of life/permanent disability, ?75,000/towards loss of income, ?7,50,000/- towards loss of earning capacity and ?50,000/- towards conveyance, special diet and attendant charges.

37. In Delhi Transport Corporation v. Arun Sondhi, 65 (1999) DLT 989, the claimant bachelor aged 21 years suffered amputation of one leg and paralysis of the other leg and had no control on urine and stool due to the accident dated 4"" March, 1983. This Court awarded ^2,00,000/- for pain and suffering, assistance and loss ofenjoyment of life.

38. In Jyoti Gupta v. Ashok Kumar, 2002 ACJ 1056, the claimant, a married woman aged 33 years suffered spinal injuries which turned her into a paraplegic due to the accident dated 6^August, 1983. The claimant could not lead life of a normal human life and discharge her duties to her husband and her children. This Court enhanced the non-pecuniary damages of ^20,000/- awarded by the Tribunal to ?6,72,000/-.

39. In Virendra Singh v. Anand Prakash, I (2008) ACC 456, the claimant bachelor aged 26 years, a Sepoy in the Indian Army, suffered serious head injuries which resulted in the paralysis of left side of body and 100% permanent disability. He also suffered various neurological disorders due to the accident dated 13"' June, 2001. This Court awarded ^1,50,000/- towards pain and suffering, ?15,000/- for loss of expectation of life, ^"50,000/- towards depression and mental stress and ?1,00,000/- towards loss of marriage prospects.

40. In Saravanan @Saravanakumar v. M. Sankaran, IV (2008) ACC 324, the Madras High Court awarded ?3 lakhs for loss of amenities of life due to impotency suffered by a 26 years old bachelor due to the road accident dated 23'"'^ August, 1991."

15. Findings 15.[1] Pain and suffering, loss of amenities of life and disfiguration The Claims Tribunal has awarded ?10,000/- towards pain and suffering and ?20,000/- towards loss of amenities of life which are grossly inadequate. The Claims Tribunal has not awarded any compensation for disfiguration. The appellant has suffered 100% permanent disability- in respect of left lower limb taking into consideration the impotence, skin dehiscence with discharge at Ischial Tuberosity, hip disarticulation (90% PPI) along with fracture of pelvis (healed) with absence of (left) ischium and (left) pubic bone (possible difficulty in prosthesis application additional 10%) as well as impotency. The appellant has undergone seven surgeries and his treatment is still continuing. In Oriental Insurance Co. Ltd. v. Vijay Kumar Mittal (supra), this Court has awarded non-pecuniary compensation of ?3,00,000/- in case of permanent disability of 50% and above. Following the aforesaid judgment, the compensation for pain and suffering is enhanced from ?10,000/- to ?i,00,000/- and the compensation towards loss of amenities of life is enhanced from ^20,000/- to ?1,00,000/-. ?1,00,000/- is awarded to the appellant towards disfiguration. The appellant shall thus be entitled to non-pecuniary damages of ?3,00,000/-. 15.[2] Impotency The Claims Tribunal has not awarded any compensation to the appellant towards the impotency due to the injuries suffered in MAC.APP.i\'o.545/2007 the accident. The Medical Board in its report dated 7"" August, 2012 has certified the impotency of the appellant. However, its percentage has not been given. The appellant has refused to undergo papaverine test. In Sunil Kumar v. Inder Singh (supra), the claimants therein did not undergo papaverine test which has side effects of discomfort, nausea, abdominal discomfort, anorexia, constipation or diarrhea, skin rash, malaise, vertigo, headache, intensive flushing of the face, perspiration, increase in depth of respiration, increase in heart rate, slight rise in blood pressure and excessive sedation. The.appellant was therefore justified in refusing to undergo the papaverine test. This Court awarded the compensation of ?1,00,000/- on account of impotency to the claimants in Sunil Kumar v. Inder Singh (supra). Following the aforesaid judgment, compensation of ?1,00,000/- is awarded towards impotency. 15.[3] Medical and Future Medical Expenditure The appellant has undergone seven surgeries and his treatment is still continuing. He has been advised to undergo surgery for urethroplasty costing ^"12,00,000/- but considering the complication in the said surgery, the appellant has decided not to undergo urethroplasty and has given up the claim for the said surgery. However, his treatment from Lok Nayak Hospital is still continuing on which he has already spent ^46,000/- after the passing of the award. The bills for the said expenditure have been proved by Ex.PWl/21 to Ex.PWl/90. The OPD cards in respect of MAC.APP.-No.545/2007 Page31 of 36 the said treatment had been proved as Ex.PWl/11 to Ex.PWl/18 and the medical bills relating to the treatment have been proved as Ex.PWl/21 to Ex.PWl/90. ^46,000/- is awarded towards expenditure on treatment after the passing of the award. The appellant shall be entitled to ?89,282/- (?46,000 + ?43,282) towards the medical expenditure. The Claims Tribunal awarded ? 30,000 towards future medical expenditure which is grossly inadequate. The future medical expenditure is enhanced from ? 30,000 to ^ 1,00,000. The said amount be kept in fixed deposit and the interest thereon should be sufficient to enable the appellant to undergo future treatment. 15.[3] Loss of earning capacity^ The Claims Tribunal has awarded ^2,54,448/- to the appellant towards loss for earning capacity by applying minimum wages of ?3,162/- per month, multiplier of 16 and loss of earning capacity as 40%. The appellant claims to be earning ?8,000/- per month from his employment with Kapoor Diesels Private Limited. The appellant has proved the salary certificate - Ex.PWl/11. However, the said salary certificate does not specify the designation on which the appellant was working and therefore, the Claim Tribunal was justified in applying minimum wages in this case. However, the Claims Tribunal has not properly made addition on account of inflation. In Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421, the Supreme Court has held that the judicial notice can be taken of the fact that the income of 5-^ self-employed persons as well as ordinaiy skilled and unskilled labour such as barber, blacksmith, cobbler, mason, etc. periodically increases due to inflation and therefore it would be reasonable to make addition of 30% of the income for computation of compensation. Following the aforesaid judgment, 30% is added towards future prospects and the income of the appellant for computation of compensation is taken to be ?4,063.80 (?3,126 + 30%)). The Claims Tribunal has taken the loss of earning capacity as 40%) in terms of the disability certificate - Ex.PWl/4. However, the disability certificate ~ Ex.PWl/4 therein did not specify the percentage of permanent disability and therefore, on the direction of this Court, Lok Nayak Hospital constituted a fresh Medical Board which examined the appellant and issued a fresh certificate - Ex.PW-1/20 in which the permanent disability of the appellant has been assessed as 100% in respect of left lower limb. The appellant is unable to do any work after the accident due to the said disability and therefore, loss of earning capacity is taken as 100%. Taking the income of the appellant as ^4,063.80 and applying the multiplier of 16, the loss of earning capacity is assessed at ^7,80,249.60. 15.[4] Conveyance and future conveyance The Claims Tribunal has awarded ?10,400/- on account of conveyance which is grossly inadequate considering the amputation of left leg and on account of 100%) permanent disability suffered by the appellant relating to left lower limb. The appellant 5-1 shall have to incur huge expenditure on conveyance for rest of his life. The compensation for conveyance is enhanced from 0,400/to ?1,00,000/- is awarded to the appellant towards conveyance on the basis that the said amount be kept in fixed deposit and the interest thereon should be sufficient to meet the convevance charges. 15.[5] Attendant The Claims Tribunal has not awarded any compensation to the appellant towards the attendant. The appellant had to keep an attendant to look after him and his wife also left her job to take care of the appellant which has been sufficiently proved. The lump-sum compensation of ?50,000/- is awarded to the appellant under this head. 15.[6] Interest The Claims Tribunal has awarded interest@7.5%per annum which is on a lower side. In Municipal Corporation ofDelhi v. Association of Victims of Uphaar Tragedy (supra) and Subulaxmi

V. Tamil Nadu State Transport Corporation, 2012 (10) SCALE

617, the Supreme Court has awarded interest @9% per annum from the date of filing of claim petition. Following the aforesaid judgments, the rate of interest is enhanced from 7.5% per annum to 9%per annum from the dateof filing of claim petition. 15.[7] The appellant is entitled to total compensation of f 15,68,296/- as per break-up givenhereunder:- MAC.APP.-N'o.545/2007 Page 34of36 £ ^ # Pain and suffering ?1,00,000/- Loss of amenities of life ?1,00,000/- Disfiguration ?1,00,000/- Compensation towards loss due to fl,00,000/impotency Loss of earning capacit>' ^7,80,250/- Medical expenditure ?89,282/- Future treatment ?1,00,000/- Conveyance and future conveyance ?1,00,000/- Cost of attendant ?=50,000/- Loss of income during treatment f43,764/- Special Diet ?5,000/- Total ?15,68,296/-

16. Conclusion

16.1. In the facts and circumstances of this case, the appeal is allowed and the compensation is enhanced from ^4,66,894/- to ?15,68,296/- along with interest @9% per annum from the date of filing ofthe claim petition till realization.

16.2. The enhanced award amount along with interest at the aforesaid rate be deposited by Oriental Insurance Company - Respondent no. 3 with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Ved Pal within 30 days.

16.3. Upon the aforesaid amount beingdeposited, UCOBank shall keep the said amount in fixed deposit till further orders.

16.4. The order of disbursement ofthe said amount shall be passed after examining the appellant.

16.5. List for appearance ofthe appellant on 15'"^ March, 2013.

16.6. Copy of this judgment be sent to AGM, UCO Bank, Delhi i High Court Branch, New Delhi.

16.7. Copy of this judgment be sent to the parties. m IRTMIDHA, J FEBRUARY 2013 iViAC.APP.No.545/2007 Page 36 of36