Sukhbir v. Ram Mehar & Ors.

Mr. Kunal Garg, AAG, Haryana, for respondents 2 and 3. Mr. Harsh Aggarwal, Advocate, with Mr. Aseem Aggarwal, Advocate, for respondent No.4. ----

1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

2. 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.

1. The appellant, who was a school student, aged 15 years, that lost his leg due to an accident, is in appeal challenging the quantum. He had been awarded with the compensation of Rs.7,50,000/- and the only point stands for consideration in appeal is the adequacy of the compensation awarded to the claimant. The liability of the Insurance Company and the negligence attributed to the driver of the truck in causing the accident and causing the injury to the claimant, are admitted facts. FAO No.4355 of 2004 (O&M) - 2 -

2. In the manner of determination of compensation, the Tribunal had provided for the entire expenditure of Rs.5,21,011/- sustained by the claimant that included a major component of cost of prosthesis and artificial limb that had been provided to him at cost of Rs.2,32,000/-. Apart from the medical expenses, the Tribunal had provided for pain and suffering to the tune of Rs.50,000/- and for the disability which was assessed at 70%, the Tribunal had determined Rs.1,80,000/- and in all granted a compensation of Rs.7,50,000/-.

3. The contention on behalf of the counsel for the appellant is that apart from the medical expenses, the compensation provided for a person, who had lost his limb at his youth, was grossly low. The contention is that the Tribunal has not assessed the loss of earning capacity for the claimant and the assessment also does not factor the pain and suffering and prospect of future medical expenses. In appeal, the claimant has also moved an application under Order 41 Rule 27 giving an estimate of cost of a new artificial limb issued by the Regional Manager of a Company called Endolite at Rs.3,23,800/- for fitment of endolite above knee systems. This is said to contain a three year warranty. This application filed by the applicant under Order 41 Rule 27 is contested on behalf of the respondent by contending that the provision for future expenses must be duly advocated even at the time of trial and there was no warrant for an assumption that the leg replacement system was required to be done within such a short span of time. The contention is that even the Tribunal had provided for the cost of prosthesis at about

2.5 lakh and there was no justification for fresh equipment once again. FAO No.4355 of 2004 (O&M) - 3 -

4. I do not find any reason to allow for the admission of additional evidence, for, it is to be invariably stated at the time of trial itself and it shall be necessary to give an estimate of what would be future medical expenses before the Tribunal itself. This is not to state that there shall be no scope for reception of additional evidence in appellate Court but there ought to be a reasonable justification for not having the document at a lower Court. There is again no proof that the cost of medical equipment which was provided by the Tribunal was required to be modified at such a short span of time. I will, therefore, proceed to determine the compensation without reference to the documentary evidence that was sought to be produced at the appellate Court.

5. Even before the Tribunal, the evidence had been that the claimant would have to spent Rs.5,000 to 7,000/- for maintenance of the prosthesis. The Tribunal had not provided adequately for the cost of such replacement for the entire span of his life. I will, therefore, provide for an additional amount of Rs.1 lakh towards the cost of replacement and maintenance of the prosthesis. The assessment of compensation for pain and suffering which the Tribunal had made at Rs.50,000/- would require no intervention and the assessment of Rs.1,80,000/- towards the disability, I would understand as including the reduction in life expectancy, loss of amenities of life for a young person, who had been subjected to the poignancy of losing a foot and robbed of all the frolic that the youth would have brought to him. Mobility is an important component of expression of freedom and a person, who is fettered in his FAO No.4355 of 2004 (O&M) - 4 - ambulation by losing a foot truly suffers a gross deprivation. I would assume the compensation awarded at Rs.1,80,000/- would go to the loss of amenities of his life as well. The only subject which would still require to be addressed would be the loss of earning capacity. He was a person from a middle class background and was being educated in a good school i.e. in DAV School in his town. I would expect that he would have earned an average amount of Rs.3,000/- per month and the loss of his leg, I would understand would result in 70% loss of earning capacity. I would, therefore, provide for his loss of earning capacity as Rs.3,78,000/-. In all, the total compensation would come to Rs.12,29,011/- and rounded off to Rs.12,29,000/-. The compensation assessed at the appellate Court is tabulated as under:- Sr.No. Heads of claim Tribunal High Court Amount (Rs.) Amount (Rs.)

7. Loss of income Medical expenses: (medicines, Hospital charges, Attendant charges, special diet) Transport 5,21,011 6,21,011 Pain & Suffering- per fracture/per surgery Disability + loss of amenities 1,80,000 of life 50,000 Loss of earning capacity Income x % of loss of earning power x multiplier 50,000 1,80,000 70% 3,78,000/- _______ ________ Total 7,50,000 12,29,011 and rounded off to Rs.12,29,000/- FAO No.4355 of 2004 (O&M) - 5 -

6. The amount in excess over what has been awarded already by the Tribunal shall draw interest at 6% from the date of petition till date of payment.

7. The appeal is allowed to the above terms.

17.12.2010 sanjeev (K.KANNAN) JUDGE