Full Text
HIGH COURT OF DELHI
Date of Decision: 09th December, 2024
VATSAL SAREEN
R/o 218, Pocket-V, Mayur Vihar-I, Delhi-110092 .....Appellant
Through: Mr. Pankaj Gupta, Advocate.
JUDGMENT
1. CHANDER PRAKASH R/o Shop No. 9, Truck Market, Near Mother Dairy, Pandav Nagar, Delhi Also at: -
2. HARVINDER SINGH @ KAKKU R/o Shop No. 9, Truck Market, Near Mother Dairy, Pandav Nagar, Delhi Also at: -
3. IFFCO TOKIO GENERAL INSURANCE CO. LTD. Iffco Sadan, C-1, District Centre, Saket, New Delhi.....Respondent No. 3 Through: Mr. Pankaj Seth, Advocate for R-3. CORAM: HON'BLE MS.
JUSTICE NEENA BANSAL KRISHNA JUDGMENT (oral)
1. The Appeal under Section 173 of the Motor Vehicles Act, 1988 (‘M.V.Act’ hereinafter), has been filed on behalf of the Appellant/Injured to seek enhancement of compensation awarded in the sum of Rs.36,13,200/along with the interest @9% p.a. for the injuries suffered upon the Appellant aged 22 years old, in a road accident on 11.04.2012, vide the impugned Award dated 01.07.2015.
2. The grounds for seeking the enhancement of Compensation are:i. that he has suffered 18% Permanent Disability of both lower limbs and is not in a position to even move and is completely bed-ridden; that the Functional Disability has been taken as 18%, in fact it should have been 100%; ii. that no Future Prospects have been granted; and iii. that the compensation granted under the Non pecuniaru Heads i.e. Attendant Charges, Loss of Amenities, Enjoyment and Marital Prospects, are on the lower side.
3. Learned counsel on behalf of the Insurance Company submits that the compensation has been granted fairly and does not warrant any interference.
4. Submissions heard.
5. Briefly stated, on 11.04.2012 at about 7.00 PM, when Appellant/Claimant was going on foot near and as he reached near Samaspur Wine Shop, Patparganj Road, Delhi, Crane (LGV) registration no. DL-lLM- 3492/Offending Vehicle, hit the Appellant from the rear-end due to his rash and negligent driving. The driver of the offending vehicle was apprehended on the spot. The Appellant sustained serious injuries and was taken to LBS Hospital but due to his critical condition, he was shifted to Kailash Hospital.
6. An FIR No. 114/12 was registered under Sections 279/338 of the Indian Penal Code, 1860 at PS Pandav Nagar, against Respondent No. 1.
7. The Charge Sheet was filed against the Driver of the Offending Vehicle.
8. The Claim petition under Section 166 M.V. Act was filed in which he has been awarded compensation in the sum of Rs.36,13,200/-. Permanent and Functional Disability:
9. The first ground on which enhancement is sought by Injured/Appellant is that has suffered 18% Permanent Disability of both lower limbs and is not in a position to even move and is completely bedridden but his the Functional Disability has been taken as 18%, in fact it should have been 100%.
10. PW-5 Dr. Ish Kumar Dhammi (Orthopaedics) from GTB Hospital has proved the Permanent Disability Certificate Ex. PW5/A issued by Office of Medical Superintendent, GTB Hospital attributes 18% Permanent locomotor impairment in relation to both lower limbs of the injured.
11. The Appellant as PW[1], deposed that he suffered critical injuries in the accident on 11.04.2012 and was admitted in the Kailash Hospital on the same day. As per his Discharge Summary, Ex. PW1/1, he had been admitted to Kailash Hospital from Lal Bahadur Hospital, Delhi and at the time of admission, as per the recorded history, the Appellant was having difficulty in passing urine. On initial examination, it was found that he was suffering from Hypertension with Tachycardia, he was conscious, oriented and was in Hypovolumic Shock. BP and Pulse were not recordable at the time of admission. After initial evaluation as per standardized protocol, treatment initiated with Fluid Resuscitation, Antibiotics, Blood Transfusion and other supportive care and all necessary investigations were done. The patient’s Trachea was intubated, and mechanical ventilation initiated. CVP and arterial line inserted as patient was having Hypotension, Inotropic Support were started to optimize the BP. The patient’s Pelvic X-ray was suggestive of fracture superior pubic rami. Ultrasound of whole abdomen was suggestive of massive Hemoperitoneum. After resuscitation, the surgery was conducted of close reduction and external fixation of pelvis and exploratory laparotomy with repair of urinary bladder injury with ligation of vascular pedicle done and left iliac vessel repaired. Large rent in the urinary bladder was repaired. At the time of discharge, the Appellant was advised to take medicines.
12. As per the Discharge Summary, Ex. PW1/1, the Appellant was admitted in the Hospital from 11.04.2012 to 28.05.2012 i.e., about 39 days. The various medical records which have been filed show that the Appellant remained under regular treatment till about October, 2013, though thereafter, due to his medical condition, he had been going to the OPD.
13. PW4/Dr.Col. P. Paikaray, CMO, Kailash Hospital, Sector-27, Noida, also corroborated the factum of extensive injuries suffered by the Appellant in the accident.
14. The Appellant has further explained that he suffered crush injuries with difficulty in passing urine, fracture of pubic rami, fracture of left femur, whole abdomen was suggestive of massive hemoperitoneum, penis was damaged, urinary tract infection and inflammation of the bladder. He was unable to pass the urine through penis, bladder was completely damaged, there is an anal incontinence, fecal incontinence. The fractured femur was reduced, and intramedullary nail inserted. He was completely paralyzed for a period of four months. His sexual potency was also affected. He also would have to wear nappies for rest of his life.
15. PW3/D.R. Tiwari, Medical Record In-charge, Kailash Hospital, Noida. Uttar Pradesh had deposed that the Appellant/Injured firstly remained admitted from 11.04.2012 to 28.05.2012. He was admitted for the second time from 01.01.2013 to 04.01.2013. He was admitted for the third time from 27.02.2013 to 09.03.2013. He was admitted fourth time from 18.10.2013 to 24.10.2013.
16. The medical record along with testimony of the Appellant as well as of the witness from the Hospital, proved that the Appellant suffered extensive injuries which were confined not only fracture of femur and pubic rami, but his entire urinary bladder and penis was damaged. The Appellant had been on a Catheter.
17. Thereafter, over a period of time, some healing took place. As per the testimony of the Appellant which is corroborated by the Medical Record, there is urinary incontinence and erectile dysfunction. The Appellant also developed complications like, Asthma, depression, poor eye vision, pain in joints and backbone. He cannot do daily chores on his own and needs an Attendant even to go to the toilet. He further deposed that he is unable to move around independently and has become completely disabled in taking care of himself without any assistance. His both upper and lower limbs are of no use, their existence add weight to the body. He is unable to live a normal life as son, husband and professional and is under consistent medication and he has become dependent for his sustenance on his family members.
18. PW5/Dr. Ish Kumar Dhammi, Consultant (Orthopaedics Surgeon), GTB Hospital, Delhi, deposed that he was one of the Members of the Disability Board which had found that the Appellant had suffered 18% permanent locomotor disability in relation to both lower limbs, which implies that his ability to walk or use of his lower limbs. The Disability Certificate, Ex. PW5/A.
19. Dr. Ish Kumar Dhammi explained in his cross-examination that the Appellant had loss of stability 16%, loss of range of motion 3% and loss of muscle strength/power 0%. He further clarified that a person can walk without any aid, but could not comment in regard to the disability in respect of the whole body.
20. The evidence as discussed above, establishes that though permanent disability of lower limbs has been certified as 18%, but it is evident that he though may be able to walk without assistance, because of 16% loss of stability coupled with urinary incontinence and also because of some impact on the fecal incontinence.
21. The Appellant in his testimony had deposed that he had become practically confined to the bed. Even though the Disability Certificate which was prepared on 27.01.2015 while the accident took place on 11.04.2012, and during which period, the Appellant has apparently recovered to some extent, but considering the nature of the disability and its impact, it can easily be taken that the Appellant has suffered functional disability to the extent of 75%. Therefore, Future Loss of Income is re-assessed as Rs. 24,30,000/- [Rs.15,000 (income) x 12 x 18 (multiplier) x 75%]. Future Prospects:
22. The second ground on which enhancement is sought is that no future prospect has been awarded to the Appellant by the Ld. Tribunal. Considering the nature of injury and the permanent functional disability of 75%, future prospects are liable to be awarded as per the Judgement of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680. Since, the Injured /Appellant was 22 years of his age, he was entitled for 40% future prospect. Therefore, the impugned Award is liable to be modified and the Loss of Future Prospects is calculated as Rs.9,72,000/-. Non-Pecuniary Heads:
23. The Appellant has also sought enhancement of the compensation granted under the non-pecuniary heads. After taking a holistic purview of the facts and circumstances of the present case, the Appellant has been granted a compensation towards pain and suffering in the sum of Rs.1,00,000/-, which is enhanced to Rs.2,00,000/-.
24. The Attendant Charges have been granted in the sum of Rs.30,000/-. However, considering the testimony of witnesses and the evidence on record qua the medical treatment of the Appellant which spanned over approximately two years and the functional disability of 75%, Attendant Charges are liable to be enhanced. Therefore, considering that this is an accident of 2012, a lumpsum amount of Rs. 4,00,000/- is awarded under the head of Attendant Charges.
25. The compensation under the head of Loss of Amenities and Enjoyment of life is enhanced from Rs.70,000/ to Rs.1,00,000/-.
26. The Appellant had suffered erectile dysfunction. The Appellant was a young unmarried man of 22 years; consequently, the compensation under the Loss of Marital Prospects is enhanced to Rs.3,00,000/- from Rs. 1,00,000/-.
27. The Appellant remained under treatment for almost about two years.
28. The Conveyance and Special diet is enhanced to Rs.75,000/- from Rs.60,000/- each. Relief:
29. The compensation amount is, therefore, recalculated as under: -
1. Future Loss of Income Rs.5,83,200/- Rs.24,30,000/-
2. Future Prospects (40%) Nil Rs.9,72,000/-.
3. Towards Pain and Suffering Rs.1,00,000/- Rs.2,00,000/-
4. Towards servant/attendant charges Rs.30,000/- Rs.4,00,000/-
5. Loss of Amenities and enjoyment of Life Rs.70,000/- Rs.1,00,000/-
6. Loss of Marital Prospects Rs.1,00,000/- Rs.3,00,000/-
7. Towards conveyance & special diet Rs.60,000/- Rs.75,000/-
8. Towards Medical Bills Rs.23,00,000/- Rs.23,00,000/- (Same)
9. Future Medical Expenses Rs.1,00,0000/- Rs.1,00,0000/- (Same)
10. Towards Loss of Wages Rs.2,70,000/- Rs.2,70,000/- (Same)
11. Total Rs.36,13,200 Rs.67,95,000/-
30. Thus, the total compensation granted to the Claimants is re-calculated as Rs.67,95,000/- along with interest @ 9% per annum from the date of the Claim till the deposit of the amount, which shall be disbursed in terms of the Impugned Award dated 01.07.2015 of the learned Tribunal.
31. The Appeal is allowed.
32. The Appeal stands disposed of along with the pending Application(s), if any.
JUDGE DECEMBER 9, 2024