Punjab-Haryana High Court
Varinder Singh Son Of Shri Sahab Singh vs Shamsher Singh Son Of Shri Ram Kishan on 28 May, 2013
Author: K. Kannan
Bench: K. Kannan
FAO No.4093 of 2011(O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.4093 of 2011(O&M)
Date of Decision: 28.05.2013
Varinder Singh son of Shri Sahab Singh, resident of village
Nissing, Police Station, Nissing, District Karnal.
... Appellant
Versus
Shamsher Singh son of Shri Ram Kishan, Caste Jat, resident of
Kurthal, District Sonepat and another.
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:Mr. Akshay Jindal, Advocate for
Mr. V.K. Jindal, Advocate,
for the appellant.
Mr. T.K. Joshi, Advocate,
for the respondents.
*****
1.Whether reporters of local papers may be allowed to
see the judgment? YES/NO
2.To be referred to the reporters or not? YES/NO
3.Whether the judgment should be reported in the
digest? YES/NO
K. KANNAN, J.
1. The appeal is at the instance of the claimant seeking for enhancement of compensation for injury sustained in a motor accident. The claimant was 21 years of age and was an agriculturist and claimed that he was earning `15,000/- per month. After the accident on 23.01.2008, he was treated at CHC, Assandh as outdoor patient and he was referred to General Hospital, Karnal where he remained as indoor patient and took further treatment at PGIMS, Rohtak. The Medical Board constituted at the General Hospital, Karnal certified him FAO No.4093 of 2011(O&M) [2] to have suffered 90% loss in hearing. The Tribunal assessed a compensation of `9,65,000/- that included treatment cost of `8,28,000/- and the other heads of claim were disability `90,000/-, loss of income `18,000/-, pain and suffering `20,000/- and transportation and special diet `9,000/-.
2. The contention in appeal is that yet another surgery has to be performed for another ear also and the cost of equipment and the cost of treatment were also required to be provided for. The counsel would point out to the evidence of Dr. G.L. Dhal, Senior Medical Officer at General Hospital, Karnal, who had immediately after the accident examined him when he found that he was having a hearing loss of 99.66 dB in left ear and 84.33 dB in right ear and the total hearing handicap was 90%. A Senior Consultant, Department of ENT, Sir Ganga Ram Hospital at New Delhi had given a certificate exhibited as P-18 where he had given evidence to the effect that a cochlear implant package at the hospital would cost `1,00,000/- towards treatment charges that included hospitalization charges for a single room, operation charges, theater charges etc. and this was exclusive of the cost of equipment itself. The appellant had provided documentary proof that a cochlear implant would cost `9,26,000/-. Cochlear implant, I gather helps a patient understand speech better. The quality of sound, it is believed, is different from natural FAO No.4093 of 2011(O&M) [3] hearing, with less sound information being received and processed by the brain. The counsel would also argue that the petitioner has not been provided for loss of future earning and recurrent cost of change of batteries.
3. The counsel appearing for the insurance company contends that the averment made in the claim petition itself showed that he had hearing impairment only in one ear and for that he had already been provided for. There could be no scope for further treatment of yet another ear. The counsel makes specific reference to Clause 13 of the petition, which states that "due to the accident, the left ear of the appellant became permanently disabled as he is not in a position to hear anything." I have seen through the entire evidence and I find that the petition must be understood properly in the context of the facts and circumstances. While stating that the appellant is not able to hear anything from the left ear, he did not make surely any reference to the right ear but it is seen from the evidence of PW1 himself, who while referring him to PGIMS, Rohtak has carried out test of hearing capacity as Medical Officer, GH, Karnal and found that he was having hearing loss in both ears to the extent already mentioned above. The claimant himself has given evidence as PW4 to the effect that he had already undergone a surgery at Sir Ganga Ram Hospital, New Delhi and he remained in hospital from FAO No.4093 of 2011(O&M) [4] 24.05.2009 to 27.05.2009 and he had spent `1,01,897/- towards hospital charges and `5,35,000/- towards cost of equipment. He had also stated that Dr. A.K. Lahiri, Senior Consultant, Department of ENT Sir Ganga Ram Hospital has advised cochlear implant to the left ear. He had also stated that he was a "deaf patient having 90% hearing handicap". He had also stated that he is totally incapable of doing any cultivation and that he had to engage services of two servants for looking after and doing the said cultivation for which he has to spent `6,000/- per month.
4. In the manner in which the evidence has been brought, it is clear that the appellant requires further treatment and the cost of equipment and the medical expenses would be about `10,26,000/-. The entire amount would require to be provided and on the basis that there is adequate medical evidence to show that he requires further treatment and that the cost of equipment and hospital expenses including the surgeon's fee would cost him additional amounts. I will provide the same for him as admissible compensation.
5. In the total assessment made, the Court has provided for a compensation of `90,000/- only for the disability and I would take this amount as inadequate for a person who is completely deaf or as close to being stone deaf, with a disability assessed at 90%. He cannot be said to be a normal person. FAO No.4093 of 2011(O&M) [5] The Court has not properly appreciated the loss of amenities to life for a young person aged about 21 years. Due to loss of hearing a person becomes a duffer and suffers a serious impairment of closure of an important window of knowledge through hearing. His own speech could get muffled for himself and he has to live for the rest of his life with very serious inconvenience. He has to develop a normal self esteem against ridicule for the handicap suffered by him. Even in normal life, a correction of faculty of sight right through spectacles is never regarded as a stigma. A hearing aid unfortunately is not seen merely as a contrivance to improve a sensorial experience. A hearing impairment for a young person is truly and serious physical and psychological handicap. Studies indicate that negative stereotypes and prejudices are attributed to people who have hearing loss. They are perceived as old, cognitively diminished and poor/uninteresting communication partners. Hearing loss is often misunderstood as an intellectual challenge or a deficiency in personality and character. Montreal University Studies (2000, 2007) indicate that stigma is one of the main reasons given by people to explain why they do not accept wearing hearing aid. 28% of people who have, hearing impairment admit not to be using hearing aid because "people treat you differently" (when one is wearing it), 22% think that "people make fun of us" and 20% think that hearing aids "make FAO No.4093 of 2011(O&M) [6] you look mentally slow". (see study of University of Montreal - Jean Pierre Gagne, Mary Beth Jennings and Kenneth Southal (2009). I will increase the loss of amenities to life suffered through disability to `2,00,000/- from `90,000/-. The loss of income has also not been properly assessed. I will take the disability to have resulted in 50% loss of earning capacity and taking the average income at `4,000/- being the value of his labour at the agriculture field, I will assess the loss of earning capacity as `4,000 X 50% X 12x 18 = `4,32,000/-. I will also provide for `10,26,000/- for future medical expenses. There shall be an additional compensation of `15,78,000/- (`1,10,000/- + `4,32,000/- + `10,26,000/-). Since the additional compensation substantially is for the future medical expenses, I am not providing for any interest. Since the provision for medical expenses again is brought as what is likely to be the expenditure, the amount of `10,26,000/- shall be retained by the Tribunal and the rest of the amount shall alone be released forthwith to the appellant. A portion of the amount shall be released in favour of the particular hospital where treatment is taken on presentation of a provisional bill. The Tribunal shall monitor the payments through cheques to the hospital directly on taking the provisional bill in advance and the Superintendent of the Court attached to the Tribunal may be entrusted the responsibility of making over the cheques FAO No.4093 of 2011(O&M) [7] and delivering them to the hospital to evoke a sense of credibility that the balance amount shall be paid to the hospital at the time of making the final bill.
6. The liability shall be on the insurance company as determined already by the Court below. The award stands modified and the appeal is allowed to the above extent.
May 28, 2013 ( K. KANNAN ) Rajan JUDGE