Jammu & Kashmir High Court
Union Of India vs Devi Dass on 9 December, 2016
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CIMA No. 389 OF 2009 Union of India Petitioners Devi Dass Respondent !Mr. N.A.Choudharyt, Advocate ^Mr. Suneel Bakshi, Advocate Honble Mr. Justice Ramalingam Sudhakar, Judge Date: 09.12.2016 :J U D G M E N T :
1. It is a case of injury.
2. In this case accident happened on 12.08.2003.
3. Appeal is of the year 2009.
4. Heard learned counsel for the respondents who vehemently pleaded for confirming the award.
5. On 12.08.2003, when the injured-Claimant, namely, Devi Dass, stated to be working as Helper Lineman in PDD Department, was traveling on a Scooter bearing No. JK02H-2185 along with his wife and child toward Akhnoor. The Scooter was hit by an Army Truck owned by the appellant herein and in that accident, the claimant sustained grievous injuries on his right arm, finger, neck and other parts of the body. He was taken to Government Medical College, Jammu and remained under treatment up to September, 2003 and discharged thereafter for follow up. The nature of injury suffered by the claimant and the disability is evident from the medical record issued by the Registrar, Ortho-Ist, 2 Government Medical College, Jammu, which reads as follows:
Government Medical College Hospital, JAMMU Medical Records Department Medical report submitted by Dr. Som .K.Chadgal, Registrar OU-Ist to the Medical Superintendent Govt. Medical College Hospital, Jammu.
It is certified that Sh. Devi Dass S/o Sh. Singhu Ram R/o Talab Tillo Gol Panj Peer, The. & Distt. Jammu was suffering from compd type-II fracture right humerus with brachial plexus injury with traumatic amputation of right ring finger and remained admitted in OU-II (presently OU-Ist) w.e.f. 12.08.03 to 10.09.03. The patient was treated conservatively. The patient is re-examined today on 18.08.06, OU-Ist, vide OPD Reg. No. 5140 dated 14.08.06. At present he is having flail right upper limb and the fracture of the humerus has not united. He also complains of severe pain right upper limb and right side of neck. His permanent physical disability of the right upper limb amounts to fifty percent (50%).
MOI:- 1.A black moe on the ches. 2. Another back more on the left shoulder.
C/S by Sd/- Sd/- Dr. Som.K.Chadgal Dr. O.P.Bhagat Registrar Ortho-Ist Prof. & HOD Ortho 18.8.06 18.8.06
6. The wife has also suffered serious injuries.
7. Finding on the negligence of the driver of the Army Truck who was responsible for the injuries suffered by the claimant and appellants liability to satisfy the claimant is not refuted. It is pleaded that the award is excessive.
8. Claimant-Devi Dass was examined as a witness. He stated about the nature of injuries and that he was taken to Government Medical College, Jammu and treat and initially and thereafter he went to CMC Ludhiana for further treatment and surgery. He stated that he was 3 earning Rs. 5000/- as a Mechanic in the PDD department and supporting a family consisting of one son, two daughters and his Spouse.
9. One Doctor Som K. Chadgal was examined on the part of the claimant. The doctor stated about the prolonged treatment given to the injured-claimant at the two hospitals and that claimant suffered 50% disability. That due to the disability claimant cannot perform his duty as before and that the injury limits his physical activity and normal life.
10. Taking note of the above, the Tribunal has fixed the income of the claimant at Rs. 5000/- per month and determined the loss of earning capacity based on the 50% disability. Therefore, Rs. 2500/- was determined as probable loss of monthly income and Rs.30,000/- as probable loss of annual income. Taking note of the serious nature of the injury, the Tribunal adopted 15 as multiplier and granted the compensation along with interest at the rate of 7.5% p.a in the following manner:-
1. For loss of future income Rs. 4,50,000/-
2. For medical expenses Rs. 15,000/-
3. For pain and sufferings Rs. 1,00,000/-
4. For loss of amenities of life Rs. 1,00,000/-
Total Rs.6,65,000/-
11. In appeal, it is pleaded that the income determined by the Tribunal is higher and the multiplier is also on the higher side. Consequently, the amount awarded towards the loss of future income is too high. The compensation for pain and sufferings and for loss of amenities is exorbitant and needs reduction. In this no case amount 4 has been granted for loss of income during the period of treatment and for extra nutrition. The claimant is entitled to the same.
12. On the determination of pecuniary loss based on the disability of 50%, there appears to no seriousness error on the part of the Tribunal. Insofar as the medical expenses, the Tribunal was correct in granting Rs. 15,000/-. The evidence of the doctor as well as of the claimant is that due to the disability, the claimant cannot work and live before. The claimant cannot lift any weight. The right upper limb is affected. He cannot do normal work. He was in the hospital for more than one month and remained under treatment for six months thereafter. Compensation for loss of pain and suffering should be commensurated with the nature of the injury and the period of treatment and the nature of treatment etc. The Tribunal omitted to give the same.
13. The claimant who has suffered serious injury will have to be reasonably compensated for pain and suffering and for other heads that have been omitted. The compensation given by the Tribunal in the present is excessive and exorbitant in respect of pain and suffering and loss of amenities. For pain and suffering the claimant at best will be entitled to Rs. 75,000/- instead of Rs. 1,00,000/- and for loss of amenities of life, the claimant is entitled to Rs. 50, 000/- instead of Rs. 1,00,000/- .
14. The claimant will, however, be entitled to Rs. 10,000/- for traveling expenses to treat himself, Rs. 10,000/- for attendant charges and Rs. 10,000/- for extra nutrition while undergoing treatment. The award amount therefore stands modified to that extent.
515.The interest at the rate of 7.5% p.a on loss of future income however, cannot be granted and that is deleted.
16. In the result, the appeal is allowed and the award modified in the following manner:-
1. For loss of future income Rs. 4,50,000/-
2. For medical expenses Rs. 15,000/-
3. For pain and sufferings Rs. 75,,000/-
4. For loss of amenities of life Rs. 50,000/-
5. For traveling expenses Rs.10,000/-
6. For traveling attendant Rs.10,000/-
7.For extra nutrition Rs.10,000/- Total Rs.6,20,000/-
17. Interest @ 7.5% will be payable on all amounts except in respect of Rs. 4,50,000/- awarded towards future loss of income.
18. The appeal is partially allowed as above (Ramalingam Sudhakar) Judge Jammu 09.12.2016 :
Tilak, Secy.6