Allahabad High Court
Aasha Devi vs State Of U.P. And 3 Others on 15 February, 2023
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- WRIT - C No. - 32432 of 2022 Petitioner :- Aasha Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rajnath Ydav Counsel for Respondent :- C.S.C.,Narendra Kumar Tiwari Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Rajnath Yadav, learned counsel for the petitioner, learned Standing Counsel for the State respondents no. 1 and 4 and Sri Narendra Kumar Tiwari, learned counsel for the respondents no. 2 and 3.
2. Rejoinder affidavit filed today is taken on record.
3. On 16.1.2023, this Court passed the following order:-
"Heard Sri Rajnath Yadav, learned counsel for the petitioner, Sri Manish Kumar, learned Standing Counsel for respondent nos. 1 and 4 and Sri Narendra Kumar Tiwari, learned counsel for respondent nos. 2 and 3/Purvanchal, Vidyut Vitran Nigam Limited, Kaushambi/Varanasi.
It is admitted case of the respondents that the petitioner aged about 18 years as on 7.12.2020, lost her right hand below right elbow and left thumb due to electrocution on 22.7.2020 caused by 11 KV three phase line which was found at the height of 1.80 meter as against standard height of 4.6 meter. Thus, physical disability caused to the petitioner by negligence of the respondents is undisputed.
The respondents have merely granted compensation of Rs. 1,40,000/ to the petitioner by which she could hardly meet expenses of her treatment. As per the certificate issued by the Chief Medical Officer, Kaushambi, the petitioner has incurred permanent physical disability of 70%. Having lost her right hand below elbow and left thumb, her whole life stood ruined and, she has become incapacitated to engage herself to earn her livelihood and shall remain dependent for whole life.
Despite the aforesaid fatal incident, the compensation payable to the petitioner has not been computed in accordance with law more particularly the law laid down by this Court in Writ-C No. 25065 of 2022 (Kaneez Fatima Vs. State of U.P. and others) decided on 9.11.2022.
Considering the facts and circumstances of the case, we direct the respondent nos. 1 and 2 to file separate counter affidavits within two weeks from today. The petitioner shall have one week thereafter to file rejoinder affidavit.
Put up as a fresh case on 3.2.2023."
4. Most of the relevant facts stated in the writ petition have been admitted by the respondent no. 2 in his counter affidavit dated 1.2.2023. Paragraphs 4, 5, 6, 12, 20 and 21 of the counter affidavit are relevant which are reproduced below:-
"4. That, a first information report was lodged by mother of petitioner after deliberate delay on 21-08-2020 bearing case crime No. 299 of 2020, under section 338 of I.P.C at concern police station-Paschim Sharira, District-Kaushambi. The reason of delay has not been explained by the informant. The Director Electrical Safety submitted its report on 09-09-2020 with its recommendations.
5. That, claim in respect to compensation has been filed by the petitioner. The claim of petitioner has been considered as per the provisions of the office memorandum dated 25-09-2021 (U.P.P.C.L.) applicable in case of petitioner. There are guidelines to calculate the amount of compensation including application of multiplier and income factor of the injured. The case of petitioner is covered with the 2nd row of the table II of the circular dated 2509-2021 (U.P.P.C.L.) applicable to calculate compensation for permanent disability.
A Copy of the office memorandum dated 25-09-2021 (U.P.P.C.L.) issued by the U.P. Power Corporation is being filed herewith and marked as ANNEXURE NO. CA-1 to this affidavit.
6. That, the age of injured is admittedly 17 years as mentioned in first information report that means above 15 and below 20 years as mention at Sl. No.2 of the table-II annexed with the office memorandum. There is no income proof of injured as such the factor of notional income will apply. The multiplier of 16 will apply. The percentage of disability is 70% as per medical report. The amount of compensation is mentioned for above mentioned claim is Rs. 5,81,200/- in table-II.
12. That, the contents of paragraph no. 5 of the writ petition needs no comment being matter of record.
20. That, the contents of paragraph no.13 and 14 of the writ petition is not admitted and vehemently denied. It is respectfully submitted that case of petitioner has been considered as per the guidelines and directions made in office memorandum dated 25-09-2021. The claim of petitioner has been awarded worth Rs. 5,81,200/. Out of the said amount Rs. 1,40,000/- has been paid on 30-03-2022 and remaining amount of Rs. 4,41,200/- has been paid on 24-01-2023. The Copy of the approval dated 20-01-2023 and letter of receipt of petitioner payment of Rs. 4,41,200/- is being filed herewith and marked as Annexure No. CA-3 to this affidavit.
21. That it is further to be pointed out here that an enquiry will be conducted to find out as to why the payment to the victim has been delayed and who was responsible for such an inordinate delay. It may further be pointed out here that on the basis of the enquiry report, an appropriate action shall be against the erring officer/employee in accordance with law who might have caused the delay in making payment to the victim."
5. Thus, the averments made by the petitioner in paragraph 3 of the writ petition that she is a scheduled Caste and is unmarried and doing the work of grazing of goats, have been admitted by the respondent no.2 in paragraph 10 of the counter affidavit. The respondent no.2 has also admitted in paragraph 13 of the counter affidavit, the averments made by the petitioner in paragraph 6 of the writ petition that an enquiry report dated 9.9.2020 was sent to the respondent no.2 holding the negligence and liability of the respondent department. The averments made in paragraph 5 of the writ petition that the petitioner incurred more than two lakh rupees towards medical expenses has not been denied by the respondent no.2 in paragraph 12 of the counter affidavit. The averments made in paragraph 14 of the writ petition regarding 100% disability has also been denied by the respondent no.2 in paragraph 20 of the counter affidavit and in paragraph 22, the extent of disability has been admitted only to be 70%.
6. A counter affidavit on behalf of respondent no.1 has also been filed by Sri Anupam Shukla, Special Secretary, Energy Department, U.P. Secretariat at Lucknow, who has admitted contents of paragraphs 4, 5, 6, 7, 8 and 9 of the writ petition. In paragraph 8 of the counter affidavit, respondent no.1 has stated as under:-
"8. That in reply to the contents of paragraph no. 11 of the writ petition, it is submitted that in pursuance of the order of Uttar Pradesh Power Corporation Ltd. Dated 03.02.2016, Rs. 1,40,000/- was paid as compensation on 30.03.2022 and as per the order dated 06.10.2018 of Uttar Pradesh Power Corporation Ltd., out of the total amount of Rs. 5,81,200/-, the remaining amount of Rs. 4,41,200/- had been paid on 24.01.2023, which is admitted by the mother of the petitioner. Further, it is submitted that an order No. 2828-Aus/2021-19(125)A.S./01 25.09.2021 had also been passed by Uttar Pradesh Power Corporation Ltd. In this regard a photocopy of the order dated 06.10.2018 and order dated 25.09.2021 and photocopy of the Bank Statement of Aasha Devi and the receipt dated 25.01.2023 are being filed herewith and marked as ANNEXURES NO. CA-3, CA-4, CA-5 to this counter affidavit."
7. Learned counsel for the petitioner submits that once it is admitted case of the respondents that on account of their negligence, the petitioner, who is a young girl of about 18 years; has suffered 70% disability and thus her entire life has been ruined by negligence of the respondents, therefore, the respondents are liable to pay just compensation. He further submits that the respondents have not paid compensation in the light of the law laid down by this Court in the case of Kaneez Fatima Vs. State of U.P. and others in Writ-C No. 25065 of 2022 decided on 9.11.2022. He further submits that the petitioner is also entitled for payment of interest on the delayed payment of compensation.
8. Learned standing counsel representing respondents no. 1 and 4 and learned counsel for respondents no. 2 and 3 reiterate the aforequoted paragraphs of the counter affidavit and submitted that compensation has been paid as per office memorandum dated 25-09-2021 filed as Annexure-CA-1 to the counter affidavit.
9. We have carefully gone through the records of the case.
10. It is admitted case that the petitioner who is young girl belonging to Scheduled Caste had sustained injuries due to electrocution and she was admitted in District Hospital, Manjjanpur, Kaushambi from 02.08.2022 and was discharged on 19.09.2022 after being treated for about 49 days. It is also admitted that the right hand from elbow and left thumb of the petitioner were amputated during treatment. Thereby she had conjointly suffered permanent disability to the extent of hundred percent. It is further admitted that the petitioner had suffered injury due to the negligence of respondent nos. 2 and 3 in maintaining the electricity lines.
11. The U.P. Power Corporation Ltd. has framed some guidelines on 25.09.2021 for payment of compensation in case of death or permanent disability caused to third parties due to electrocution which has been heavily relied by the respondents while computing the amount of compensation to the petitioner. The aforesaid scheme/policy is reproduced herein below:
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- fo|qr vf/kfu;e] 2003 dh /kkjk 53 ds izkfo/kkuksa ds vuqlkj lqjf{kr fo|qr vkiwfrZ esa foQyrk ds dkj.k fdlh tugkfu@i'kqgkfu@Qly vFkok lEifRr ds uqdlku dh lwpuk izkIr gksus ij] lEcfU/kr mi[k.M vf/kdkjh@ lgk;d vfHk;Urk 24 ?k.Vs ds vUnj fo|qr lqj{kk funs'kky; dks lwfpr djsxk ,oa 02 fnol ds vUnj fo|qr nq?kZVuk ds lEcU/k esa fu/kkZfjr izi= la0& 44¼,½ ij lgk;d funs'kd@ mi funs'kd@ funs'kd] fo|qr lqj{kk funs'kky; dks lwfpr djsxs rFkk lkFk esa fo|qr lqj{kk funs'kk;y] m0iz0 }kjk lapkfyr csolkbV Vidyutsuraksha.org ij ?kVuk dk fooj.k viyksM Hkh djasxsA blds vfrfjDr fo|qr nq?kZVuk dh lwpuk ftyk iz'kklu@ iqfyl iz'kklu ,oa fudVre fpfdRlky; dks nsxsa rFkk dkWjiksjs'ku ds mPp vf/kdkfj;ksa dks Hkh laKkfur djk;saxsA
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- dfri; dkj.kksa ls ;fn e`rd dh iksLVekVZe fjiksVZ ,oa ,Q0vkbZ0vkj0 fjiksVZ vkfn vfHkys[kksa dh vuqiyC/krk gksus dh fLFkfr esa {kfriwfrZ ¼vuqxzg jkf'k½ ds Hkqxrku esa mRiUu gqbZ leL;kvksa ij tk¡p desVh cukdj o ftykf/kdkjh ds le{k rF;ksa dks ykdj izdj.k dk fu;ekuqlkj fof/kor Li"V :i ls fuLrkj.k lqfuf'pr fd;k tk;sxkA
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- {kfriwfrZ ds :i esa vuqxzg jkf'k izkIr djus okys dks v.MjVsfdax nsuk gksxk fd ;fn fdlh Hkh izdkj dk fookn mRiUu gksus ij muds }kjk mDr /kujkf'k foHkkx dks okil dh tk;sxh vkSj vxj rF; xyr ik;s x;s rks muds fo:) fof/kd dk;Zokgh Hkh dh tk;sxhA
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- v?kkrd fo|qr nq?kZVuk esa fdlh O;fDr ds vkaf'kd@ iw.kZ viaxrk gksus ij rkfydk&1 esa fn;s x;s fodykaxrk izfr'kr ds vk/kkj ij {kfriwfrZ@ vuqxzg jkf'k dk vkadyu fd;k tk;sxkA
- fo|qr lqj{kk funs'kky; }kjk izLrqr tkap vk[;k] eq[r fpfdRlk vf/kdkjh }kjk fuxZr fodykaxrk izek.k&i=] ,Q0vkbZ0vkj0 dh izfr ,oa foHkkxh; tkap esa izkIr laLrqfr ds vk/kkj ij {kfriwfrZ dh dk;Zokgh lqfuf'pr dh tk;sxhA
- {kfriwfrZ ds :i esa vuqxzg jkf'k izkIr djus okys dks 'kiFk&i= nsuk gksxk fd ;fn fdlh Hkh izdkj dk fookn mRiUu gksus ij muds }kjk mDr /kujkf'k foHkkx dks okil dh tk;sxh vkSj vxj rF; xyr ik;s x;s rks mlds fo:) fof/kd dk;Zokgh Hkh dh tk;sxhA 4- fo|qr nq?kZVuk esa i'kq dh e`R;q gksus dh n'kk esaA
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- lEcfU/kr ftys ds rglhynkj ,oa ftykf/kdkjh ds }kjk {kfr dk vkadyu ,oa laLr`fr rFkk funs'kd] fo|qr lqj{kk funs'kky;] m0iz0 'kklu dh laLr`fr ds vk/kkj ij lEcfU/kr eq[; vfHk;Urk ¼fooj.k½ }kjk vuqxzg /kujkf'k dh Lohd`fr iznku dh tk,xhA Lohd`r /kujkf'k dk Hkqxrku [k.M Lrj ij fd;k tk;sxkA
- fo|qr nq?kZVuk eas ckgjh O;fDr;ksa@ i'kqvksa ds izdj.kksa ds fuLrkj.k esa fo|qr lqj{kk funs'kky; dh tkWp vk[;k ,oa laLr`fr izkIr gksus ds 10 fnuksa ds vUnj {kfriwfrZ dh /kujkf'k dk Hkqxrku dj fn;k tk;s rFkk lEiw.kZ izfØ;k 30 fnuksa esa iw.kZ dj yh tk;sA blds vfrfjDr Qly@ lEifRr;ksa dh gqbZ {kfr ds QyLo:i {kfriwfrZ ds izdj.kks dks fo|qr lqj{kk funs'kk;y dh laLr`fr o ftykf/kdkjh dh vk[;k izkIr gksus ds vk/kkj ij 07 dk;Z fnolksa ds Hkhrj Lohd`r ,oa fuLrkfjr fd;k tk;sA
- eq[; vfHk;Urk ¼forj.k½ fo|qr nq?kZVuk ds QyLo:i {kfriwfrZ ds izdj.kksa dk ekfld vk/kkj ij vuqJo.k djsaxs ,oa Hkqxrku ls lEcfU/kr leLr lwpuk;sa {ks=h; dk;kZy; esa lajf{kr j[ksaxs ,oa nq?kZVukvks dks jksdus gsrq fd;s x;s iz;klksa dh ekfld fjiksVZ izcU/k funs'kd] fMLdke dks HkstsaxsA lEcfU/kr fMLdke@ {ks=@ e.My@ [k.M dk nkf;Ro gksxk fd os vius dk;kZy; es fo|qr nq?kZVukvksa ds izdkj.kks dh lwph cukdj lqjf{kr j[ksaxs ,oa =`fViw.kZ vf/k"Bkiu dks Bhd fd;s tkus gsrq fd;s x;s iz;klks dks Hkh fyfic) djsaxsA GUIDE LINES FOR COMPENSATION ON ELECTROCUTION FAULT LIABILITY A-Fatal Accident
1. Notional Income (N.I.) of victim shall be taken in to consideration as Rs. 51,000 (Fifty One Thousand) per annum (about Rs. 140 per day).
2. Multiplier shall be adopted as per following chart Age of Victim Multiplier Applied (M.A.) Up to 15 years 15 Above 15 years but not exceeding 20 years 16 Above 20 years but not exceeding 25 years 17 Above 25 years but not exceeding 30 years 18 Above 30 years but not exceeding 35 years 17 Above 35 years but not exceeding 40 years 16 Above 40 years but not exceeding 45 years 15 Above 45 years but not exceeding 50 years 13 Above 50 years but not exceeding 55 years 11 Above 55 years but not exceeding 60 years 8 Above 60 years but not exceeding 65 years 6 Above 65 years 5
3. The amount of compensation so arrived at in the case of fatal accident claims shall be deducted towards Personal and living Expenses (P.E.) by
(i) 1/2nd if deceased was unmarried but if family of a bachelor is large and dependent on the income of the deceased, the deduction shall be 1/3rd (33.33%)
(ii) 1/3rd if deceased was married where dependent family members are 2 to 3 in number, 1/4th where dependent family members 4 to 6 in number and 1/5th where dependent family members are more than 6 in number.
(iii) For the purpose of calculation of number of family members in clause (ii), a minor dependent will be counted as half.
Spouse, parents and grand-parents having no income and minor children shall be deemed dependent family members. (Parivar Register and affidavit may be considered as proof of family members and dependency).
4. The following General Damages shall also be payable in addition to Compensation Outlined (C.O.) above:
(i) Compensation for Loss of Estate (L.E.) Rs. 5,000 (Five Thousand).
(ii) Compensation for Loss of Consortium (L.C.), if beneficiary is spouse Rs. 5.000 (Five Thousand).
(iii) Compensation for Loss of love and Affection (L.A.) Rs. 5,000 (Five Thousand).
(iv) Funeral Expenses costs of transportation of body (F.E.) Rs. 5,000 (Five Thousand) or actual expenses whichever is less.
(v)Medical Expenses (M.E.) -Actual expenses incurred before death supported by bills/vouchers but not exceeding Rs. 20,000 (Twenty Thousand).
Formula: N.I.*M.A.=C.O. C.O.:P.E.=Amount C.O.-Amount+L.E.+L.C.+L.A.+F.E.+M.E.=Total Compensation.
Example for spot death of a person aged 14 years leaving behind mother and father:
Rs.51000*15 (Multiplier) =765000 Rs.765000/3 =255000 Rs.765000-255000+5000+5000+5000 =525000 B-Non-Fatal General Damages in case of Injuries and Disabilities: (i) Pain and Suffering Grievous injuries (ii) Grievous injuries (G.I.) -- Rs. 10,000/- (iii) Simple injuries (S.I.) --Rs. 5,000/-
(ii) Medical Expenses (M.E.) :- Actual expenses incurred, supported by bills/vouchers but not exceeding Rs. 20,000 for grievous injury and - Rs. 10,000 for simple injury (on medical report) Disability in non-fatal accidents:
The following compensation shall be payable in cases of disabilities to the victim arising out of non-fatal accidents:
C- Temporary Disability Loss of income, if any, for actual period of disablement not exceeding fifty two weeks.
D- Permanent Disability
(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation, which would have been payable in the case of permanent total disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923, Disability Certificate from Medical Board mentioning percentage of disablement shall be final and shall be taken in to consideration.
Notional Income of victim shall be taken in to consideration as Rs. 51,000 (Fifty One Thousand) per annum.
Example for 100% permanent disability of person aged 14 years with medical bills for amount. Rs. 20.000 (Twenty Thousand):
51000*15 =765000 765000*100/100 =765000 765000+10000+20000 =795000 No Fault Liability
1. In death - Rs. 1.000,00 (One Lac)
2. In permanent disability - Rs. 1,25,000 (One Lac and Twenty Five Thousand)
3. Grievous injury - Rs. 3000 (Three Thousand)
4. Simple injury - Rs. 2000 (Two Thousand) No compensation shall be paid if victim was involved in illegal activities like theft of electricity or riots etc. Third party insurance system may also be introduced to meet out compensation.
6- fo|qr nq?kZVuk esa i'kqvksa dh e`R;q@ ?kk;y gksus ij orZeku esa izHkkoh {kfriwfrZ vuqxzg jkf'k%& nq/kk: i'kq
- HkSl] xk;] ÅWV] ;kd vkfn dh e`R;q gksus ij :0 30]000@& ¼rhl gtkj½ vuqeU; fd;k tk;sxkA
- HksM+ cdjh] lqvj] vkfn dh e`R;q gksus ij :0 3]000@& ¼rhu gtkj½ vuqeU; fd;k tk;sxkA nq/kk: i'kqvksa ds vfrfjDr i'kq
- ÅWV] ?kksM+k] cSy vkfn dh e`R;q gksus ij :0 25]000@& ¼iPphl gtkj½ vuqeU; fd;k tk;sxkA
- cNM+k] x/kk] [kPpj vkfn dh e`R;q gksus ij :0 16]000@& ¼lksyg gtkj½ vuqeU; fd;k tk;sxkA 7- vuq'kklukRed ,oa olwyh dh dk;Zokgh%& fo|qr nq?kZVuk ds fy, nks"kh dkfeZd@ dkfeZdks dk mRrjnkf;Ro fu/kkZfjr djrs gq, fMLdkWe ds izcU/k funs'kd ds Lrj ls ,d ekg ds Hkhrj dk;Zokgh lqfuf'pr dh tk;sxhA Ø0la0 fooj.k eq[; nkf;Ro i;kZoj.kh; nkf;Ro iz'kkldh; nkf;Ro 1 ,y0Vh0 ykbu ykbueSu@ voj vfHk;Urk mi[k.M vf/kdkjh vf/k'kklh vfHk;Urk ¼forj.k½ 2 11@04 ifjorZd ;k blls vf/kd ,oa 11 ds0oh0 ykbusa ykbueSu@ voj vfHk;Urk mi[k.M vf/kdkjh vf/k'kklh vfHk;Urk ¼forj.k½ 3 33 ds0oh0 midsUnz Vh0th0&2 ¼,l0,l0vks0½@ voj vfHk;Urk mi[k.M vf/kdkjh vuqj{k.k& vf/k'kklh vfHk;Urk ¼fo0½] ijh{k.k& voj vfHk;Urk@ lgk;d] vfHk;Urk&ehVj 4 33 ds0oh0 ykbu voj vfHk;Urk@ mi[k.M vf/kdkjh vf/k'kklh vfHk;Urk ¼fo0½ v/kh{k.k vfHk;Urk ¼forj.k½ 8- izdj.k ds fuLrkj.k gsrq vko';d vfHkys[k%& Ø0la0 o|qr nq?kZVuk dk izdkj ihfM+r i{kdkj }kjk miyC/k djk;s tkus okys vfHkys[k 1 ckgjh O;fDr;ks ds fo|qr nq?kZVuk esa e`R;q gksus dh n'kk esa 1- fo|qr lqj{kk dh tkap vk[;k 2- e`R;q izek.ki= 3- l{ke vf/kdkjh }kjk okfjlku izek.ki= 4- iksLVekVZe fjiksVZ 5- ,Q0vkbZ0vkj0 dh izfr 6- foHkkxh; tkap 2 ckgjh O;fDr;ks ds fo|qr nq?kZVuk esa ?kk;y gksus dh n'kk esaA 1- fo|qr lqj{kk dh tkap vk[;k 2- eq[; fpfdRlk vf/kdkjh }kjk fuxZr fodykxrk izek.k i= 3- ,Q0vkbZ0vkj0 dh izfr 4- foHkkxh; tkap 3 fo|qr nq?kZVuk es i'kqvksa dh e`R;q gksus dh n'kk esaA 1- fo|qr lqj{kk dh tkap vk[;k 2- i'kq dh Ø; jlhn 3- i'kq dh e`R;q esa l{ke i'kq fpfdRlk vf/kdkjh }kjk tkjh e`R;q izek.k i= 4- iksLVekVZe fjiksVZ 5- ,Q0vkbZ0vkj0 dh izfr 6- foHkkxh; tkap 4 Qly ds uqdlku gksus dh n'kk esaA 1- fo|qr lqj{kk dh tkap vk[;k 2- Qly ds uqdlku esa Qly ekfyd ds uke [ksr gksus ds lEcU/k esa [krkSuh gksus ds lEcU/k esa iz/kku }kjk lR;kfir fooj.k i= 3- ftykf/kdkjh@ miftykf/kdkjh }kjk Qly ds vkadyu ,oa {kfriwfrZ dh laLrqfr 4- ,Q0vkbZ0vkj0 dh izfr 5- foHkkxh; tkap 5 lEifRr ds uqdlku gksus dh n'kk esaA 1- fo|qr lqj{kk dh tkap vk[;k 2- lEifRr ds uqdlku esa lEifRr ekfyd ds uke gksus ds lEcU/k esa lR;kfir fooj.k i= 3- ftykf/kdkjh@ miftykf/kdkjh }kjk lEifRr ds vkadyu ,oa {kfriwfrZ dh laLrqfr 4- ,Q0vkbZ0vkj0 dh izfr 5- foHkkxh; tkap dkjiksjs'ku eq[;ky; dks fMLdke ds ek/;e ls /kujkf'k voeqDr gsrq izR;sd ekg ekWx i= fuEu lwpuk ds lkFk izsf"kr fd;k tk;s%&
1. fo|qr nq?kZVuk dh izdj.kokj vk[;k@ =`fViw.kZ vf/k"Bku ds nwj fd;s tkus ds lEcU/k esa dh xbZ dk;ZokghA
2. ihfM+r O;fDr@ ifjokj dks fo|qr nq?kZVuk ds QyLo:i iznku dh xbZ {kfriwfrZ dk fooj.kA
3. fo|qr nq?kZVuk ds fy, nks"kh vf/kdkjh@ deZpkjh ds fo:) dh xbZ vuq'kklukRed ,oa olwyh dh dk;Zokgh dk fooj.k layXu izk:i esa miyC/k djk;k tk;sA
4. fo|qr lqj{kk funs'kky; ls izkIr vk[;k esa nks"kh dkfeZdks ds fo:) dkjiksjs'ku ds fu;ekuqlkj tkWp dk;Zokgh dh tk;sxh rFkk lEcfU/kr dkfeZdksa dks vius cpko dk iwjk volj nsrs gq, vko';d dk;Zokgh lqfuf'pr dh tk;sxhA ,sls izdj.k ftuesa nq?kZVuk dh frfFk iz'uxr vkns'k ds fuxZeu dh frfFk ls iwoZ dh gS] esa rRdkyhu fo|eku fu;eksa@ vkns'kks ds vuqlkj gh {kfriwfrZ dk fu/kkZfj.k fd;k tk;sxk lkFk gh fdlh Hkh n'kk esa dksbZ iqjkuk izdj.k iqu:Zn?kkfVr ugha fd;k tk;sxkA mi;qZDr leLr O;oLFkk;sa rRdky izHkko ls ykxw dh tkrh gSA funs'kd e.My dh vkKk ls*
12. In the aforesaid guidelines for compensation of electrocution, it has been provided that compensation is to be determined on the basis of income of the victim with minimum compensation of Rs. 5 lakhs. However, in the absence of actual income so as to avoid litigation and to grant compensation quickly to the dependant of the deceased, a notional income of Rs. 140/- per day has been provided in the aforesaid policy.
13. In the instant case, there is no definite proof for the income of the petitioner. In a catena of judgements, it has been time and again held, that compensation to the victims of accidents has to be just and reasonable and should be adequate to bring the victim on the same position as such accident would not have taken place.
14. In Kirti v. Oriental Insurance Co. Ltd., (2021) 2 SCC 166 (Para-10), Hon'ble Supreme Court has laid down the law that any compensation awarded by a court ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity and good conscience.
15. In the case of Kajal v. Jagdish Chand, (2020) 4 SCC 413 (para-33), Hon'ble Supreme Court has held that it is well settled law that in the motor accident claim petitions, the court must award the just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor. In the case of Kajal (Supra), Hon'ble Supreme Court quoted with approval certain foreign judgments and its own judgment and held in Paras-8, 9, 10, 11, 12, 13 and 14 as under:
"8. In Phillips v. London & South Western Railway Co., (1879) [L.R.] 5 Q.B.D. 78 (CA), Field, J., while emphasising that damages must be full and adequate, held thus : (QBD p. 79) "... You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered."
Besides, the Tribunals should always remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure".
9. In Mediana, In re, 1900 AC 113 (HL), Lord Halsbury held : (AC pp. 116-17) "... Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case : how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such things. What manly mind cares about pain and suffering that is past? But nevertheless the law recognises that as a topic upon which damages may be given."
10. The following observations of Lord Morris in his speech in H. West & Son Ltd. v. Shephard, 1964 AC 326 : (1963) 2 WLR 1359 (HL), are very pertinent : (AC p. 346) "... Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards."
In the same case, Lord Devlin observed (at p. 357) that the proper approach to the problem was to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to "hold up his head among his neighbours and say with their approval that he has done the fair thing?", which should be kept in mind by the court in determining compensation in personal injury cases.
11. Lord Denning while speaking for the Court of Appeal in Ward v. James, (1966) 1 QB 273 : (1965) 2 WLR 455 : (1965) 1 All ER 563 (CA), laid down the following three basic principles to be followed in such like cases : (QB pp. 299-300) "First, assessibility : In cases of grave injury, where the body is wrecked or the brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity : There should be some measure of uniformity in awards so that similar decisions are given in similar cases; otherwise there will be great dissatisfaction in the community, and much criticism of the administration of justice. Thirdly, predictability : Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good."
12. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guesswork and conjecture. An assessment, as best as can, in the circumstances, should be made.
13. McGregor's Treatise on Damages, 14th Edition, Para 1157, referring to heads of damages in personal injury actions states:
"The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items viz. the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have sub-divided the non-pecuniary losses into three categories viz. pain and suffering, loss of amenities of life and loss of expectation of life."
14. In Concord of India Insurance Co. Ltd. v. Nirmala Devi, (1979) 4 SCC 365 : 1979 SCC (Cri) 996 : 1980 ACJ 55, this Court held : (SCC p. 366, para 2) "2. ... the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales."
16. Therefore, it is well established that it is the duty of Courts to award just compensation to the victims of accident and it has also been held that right to Just Compensation to Victims emanates from their right to life guaranteed under Article 21 of the Constitution of India.
17. Now, the question that arises for consideration is that how to determine the Just Compensation where no direct proof of income is available on record?. It is now well established that in such cases, the notional income of the victim has to be determined. So far as the concept of notional income is concerned, it has been held that the notional income cannot be a fixed term, it has to be dependant on the variety of circumstances such as the age of the victim, occupation, living status, future prospects of the victims, their contribution in the family on the basis of service rendered by them and the quality of life being led by the victim and her family. Notional income of the victim is also to be determined on the basis of the earning capacity and sometimes in accordance with the provisions of the Minimum Wages Act etc., for example, the reference may be made to para 17, 18 and 19 of judgement in the case of Kirti (supra) and Lata Wadhwa v. State of Bihar (2001) 8 SCC 197 (Para-10).
18. When the notional or actual income is determined, the computation of the loss of income is to be calculated applying the multiplier method. However, for the loss of future prospects of the victim, the compensation has been directed to be awarded separately by the Constitution Bench Judgment in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 (Para-57) and also Sarla Verma Vs. DTC (2009) 6 SCC 121 (paras 17, 18, 19, 30, 31 and 32). In the Constitution Bench Judgment of Pranay Sethi (supra), Hon'ble Supreme Court held that the benefit of future prospects to be given to all the victims to the extent of an additional 40 per cent of the established income of the deceased towards future prospects if the deceased is below 40 years and an addition to the extent of 25 percent to be granted where the victim was between age of 40 to 50 years.
19. In the case of Lata Wadhwa (supra), Hon'ble Supreme Court has entertained the writ petition under Article 32 of the Constitution of India for grant of compensation to the victims of fire accidents. The same principal has further been recognised by Hon'ble Supreme Court in the case of Raman Vs. Uttar Haryana Bijli Vitran Nigam Ltd., (2014) 15 SCC 1 and also by this Court in its judgment dated 09.11.2022 passed in Writ C No. 25065 of 2022 (Kaneez Fatima Vs State of U.P. 3 Ors.).
20. In the case of death or injury caused due to the negligence, the principle of ''strict liability' has been approved by the Hon'ble Supreme Court in various cases such as Maharaja Agrasen Hospital v. Rishabh Sharma (2020) 6 SCC 501 (Para-12.5.4), Raman v. Uttar Haryana Bijli Vitran Nigam Ltd., (2014) 15 SCC 1 (Paras-16, 17, 18, 19, 20 and 21) and M.P. Electricity Board v. Shail Kumari (2002) 2 SCC 162 (Paras 9, 10, 11, 12 and 13). In the case of Raman (supra), the Hon'ble Supreme Court has affirmed the judgement of Punjab and Haryana High Court passed in Civil Misc. Writ Petition No.14046 of 2012 and L.P.A. No.1631 of 2013, whereby the High Court granted Rs. 60 lakhs as compensation for 100 % permanent disability suffered by five years old boy due to electrocution.
21. In the case of Shiv Ranshu Chhuneja v. State Of U.P. And Others (WRIT - C No. - 10191 of 2009, decided on 10.04.2018), a coordinate Bench of this Court has granted compensation to the tune of Rs. 86,20,000/- to a victim who suffered hundred percent disability on account of electrocution. Further, another Bench of this Court in the case of Kaneez Fatima Vs State of U.P. 3 Ors. (Writ C No.25065 of 2022) decided on 09.11.2022 has awarded compensation of Rs. 66,85,000/- with simple interest while holding in para 36 as under:
"36. The discussions, findings and directions made above are briefly summarized as under:-
(A) Compensation awarded ought to be just, reasonable and consequently must undoubtedly be guided by principles of fairness, equity and good conscience and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.
(B) The respondents are bound to award just compensation to the petitioner for fatal accident on account of their own negligence which caused the death of the husband of the petitioner on 10.04.2022. (E) "Consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
(F) To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice to the claimant. The (E) "Consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
(F) To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice to the claimant. The compensation which is required to be determined must be just. Grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
(G) The order for compensation has been passed by the authority in exercise of statutory power under Section 161 of the Electricity Act, 2003 and the policy decision to award just compensation. If just compensation is not awarded, it would affect fundamental rights of the sufferer guaranteed under Articles 14 and 21 of the Constitution of India. Therefore, order so passed would be amenable to writ jurisdiction under Article 226 of the Constitution of India.
(H) Decision of the respondents dated 25.09.2021 to compute and pay compensation only on the basis of notional income, is not only arbitrary and violative of fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India but is also in conflict of the law laid down by Hon'ble Supreme Court in judgments aforementioned directing for payment of just compensation. Therefore, we issue a general mandamus to the respondents to compute and pay just compensation on the basis of actual income of the injured person/ victim/ deceased wherever actual income is ascertainable or may be proved by claimant with future prospect as per law settled by Hon'ble Supreme Court in the various judgments aforenoted and apply the multiplier as provided in the policy decision dated 25.09.2021. If actual income of injured/ victim/ deceased is either not ascertainable or is not proved by claimant, then notional income as given in the policy decision dated 25.09.2021, shall be applied for computation and payment of compensation. The amount of compensation for loss of estate, loss of consortium and funeral expenses shall be determined and paid by the respondents in accordance with the law settled by Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi (supra), which is binding under Articles 141 of the Constitution of India.
(I) The amount of compensation determined above shall be distributed amongst the dependents of the deceased as under:-
(a) The respondents shall pay to the dependents of the deceased the above mentioned amount of compensation of Rs.66,85,000/- with simple interest @ 6% per annum from the date of filing of the claim application till realisation, after adjusting the amount earlier paid by them to the petitioner."compensation which is required to be determined must be just. Grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
(G) The order for compensation has been passed by the authority in exercise of statutory power under Section 161 of the Electricity Act, 2003 and the policy decision to award just compensation. If just compensation is not awarded, it would affect fundamental rights of the sufferer guaranteed under Articles 14 and 21 of the Constitution of India. Therefore, order so passed would be amenable to writ jurisdiction under Article 226 of the Constitution of India.
(H) Decision of the respondents dated 25.09.2021 to compute and pay compensation only on the basis of notional income, is not only arbitrary and violative of fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India but is also in conflict of the law laid down by Hon'ble Supreme Court in judgments aforementioned directing for payment of just compensation. Therefore, we issue a general mandamus to the respondents to compute and pay just compensation on the basis of actual income of the injured person/ victim/ deceased wherever actual income is ascertainable or may be proved by claimant with future prospect as per law settled by Hon'ble Supreme Court in the various judgments aforenoted and apply the multiplier as provided in the policy decision dated 25.09.2021. If actual income of injured/ victim/ deceased is either not ascertainable or is not proved by claimant, then notional income as given in the policy decision dated 25.09.2021, shall be applied for computation and payment of compensation. The amount of compensation for loss of estate, loss of consortium and funeral expenses shall be determined and paid by the respondents in accordance with the law settled by Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi (supra), which is binding under Articles 141 of the Constitution of India.
(I) The amount of compensation determined above shall be distributed amongst the dependents of the deceased as under:-
(a) The respondents shall pay to the dependents of the deceased the above mentioned amount of compensation of Rs.66,85,000/- with simple interest @ 6% per annum from the date of filing of the claim application till realisation, after adjusting the amount earlier paid by them to the petitioner."However, despite there being admitted proof of actual income of the deceased to be Rs.3,50,000/- per annum, the respondents have computed compensation on the basis of assumed notional income of the deceased as Rs.51,000/- per annum, which is arbitrary and illegal.
(C) There are two distinct categories of situations wherein the court usually determines notional income of a victim. The first category of cases relates to those wherein the victim was employed, but the claimants are not able to prove victim's actual income, before the court. In such a situation, the court "guesses" the income of the victim on the basis of the evidence on record, like the quality of life being led by the victim and her family, the general earning of an individual employed in that field, the qualifications of the victim, and other considerations. The second category of cases relates to those situations wherein the Court is called upon to determine the income of a non-earning victim, such as a child, a student or a homemaker. Different principles are adopted by courts for determining the compensation towards a non-earning victim in order to arrive at the just compensation.
(D) In the absence of proof of actual income, notional income is applied to compute compensation.
(E) "Consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
(F) To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice to the claimant. The compensation which is required to be determined must be just. Grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
(G) The order for compensation has been passed by the authority in exercise of statutory power under Section 161 of the Electricity Act, 2003 and the policy decision to award just compensation. If just compensation is not awarded, it would affect fundamental rights of the sufferer guaranteed under Articles 14 and 21 of the Constitution of India. Therefore, order so passed would be amenable to writ jurisdiction under Article 226 of the Constitution of India.
(H) Decision of the respondents dated 25.09.2021 to compute and pay compensation only on the basis of notional income, is not only arbitrary and violative of fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India but is also in conflict of the law laid down by Hon'ble Supreme Court in judgments aforementioned directing for payment of just compensation. Therefore, we issue a general mandamus to the respondents to compute and pay just compensation on the basis of actual income of the injured person/ victim/ deceased wherever actual income is ascertainable or may be proved by claimant with future prospect as per law settled by Hon'ble Supreme Court in the various judgments aforenoted and apply the multiplier as provided in the policy decision dated 25.09.2021. If actual income of injured/ victim/ deceased is either not ascertainable or is not proved by claimant, then notional income as given in the policy decision dated 25.09.2021, shall be applied for computation and payment of compensation. The amount of compensation for loss of estate, loss of consortium and funeral expenses shall be determined and paid by the respondents in accordance with the law settled by Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi (supra), which is binding under Articles 141 of the Constitution of India.
(I) The amount of compensation determined above shall be distributed amongst the dependents of the deceased as under:-
(a) The respondents shall pay to the dependents of the deceased the above mentioned amount of compensation of Rs.66,85,000/- with simple interest @ 6% per annum from the date of filing of the claim application till realisation, after adjusting the amount earlier paid by them to the petitioner."
22. In case of the victims, who suffered permanent disability the compensation for physical pain and sufferings, emotional distress, loss of enjoyment of life and for the loss of prospects of marriage etc., a separate compensation has been held to be awarded to the victims in addition to the compensation for pecuniary losses.
23. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. And Others (1995) 1 SCC 551 dealing with the different heads of compensation in injury cases, Hon'ble Supreme Court held in para 9 as under:-
"9. Broadly speaking while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non- pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
24. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, Hon'ble Supreme Court in para 6 laid down the heads under which compensation is to be awarded for personal injuries, as under:
"6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, 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 of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages) (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 injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
25. In the case of K. Suresh v. New India Assurance Company Limited And Another, (2012) 12 SCC 274 Hon'ble Supreme Court in para 2 held as follows:
"2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quintessentiality lies in the pragmatic computation of the loss sustained which has to be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance.
26. In the case of Kajal v. Oriental Insurance Co. Ltd., (2021) 2 SCC 166, the Hon'ble Supreme Court mandated to adopt minimum wages instead of notional income to compute loss of earning. Paragraph 20 of the judgment in the case of Kajal (supra) is reproduced below:-
"Loss of earnings
20. Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs 15,000 p.a. can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs 15,000 p.a. Each case has to be decided on its own evidence but taking notional income to be Rs 15,000 p.a. is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs 4846 per month. In our opinion, this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs 6784.40 per month i.e. 81,412.80 p.a. Applying the multiplier of 18, it works out to Rs 14,65,430.40, which is rounded off to Rs 14,66,000."
27. In view of the aforesaid settled prepositions of law the compensation in case of permanent disability is calculated for both pecuniary loss as well as non-pecuniary losses under different heads, as under:
a) Loss of Earning due to Disability-
For calculating loss of earning capacity due to disability, it has been held that the multiplier method must be applied for calculation of the loss of the earning due to disability. In the case of Kajal (supra), it is clearly held that when there is no proof of income available, then the provisions of minimum wages payable to such victims may be taken recourse to. In the instant case since the petitioner was unskilled person, the minimum wages applicable to unskilled workers can safely be taken as Notional Income of the petitioner. The Notional Income provided under the scheme of the U.P. Power Corporation prima facie appears to be inadequate. The Government of India vide Notification dated 28.09.2022 has determined the minimum wages for the unskilled employees working in agriculture as Rs. 409/- per day. The notification dated 28.09.2022 reads as under:
"File No. 116(r)/2O22-LS-II Government of India Ministry of Labour & Employment Office of the Chief Labour Commissioner(C) New Delhi Dated:28/09/2022 O R D E R In exercise of the powers conferred by Central Government vide Notification No. S.O.186(E) dated 19th January, 2Ol7 of the Ministry of Labour and Employment, the undersigned hereby revise the rates of Variable Dearness Allowance for the employees employed in Agriculture w.e.f. 01.10.2022 on the basis of the average Consumer Price Index for Industrial workers reaching 365.76 from 357.65 as on 30.06.2022 (Base 2016-100) and thereby resulting in an increase of 8.11 points. The revised Variable Dearness Allowance as under shall be payable from 01.10.2022:-
Category of Worker Rates of V.D.A. Area wise per day (in Rupees) 'A' 'B' 'C' Unskilled 121 111 109 Semi-Skilled/Unskilled Supervisory 131 121 112 Skilled/Clerical 144 131 121 Highly Skilled 158 147 131 Therefore, the minimum rates of wages including the basic rates and Variable Dearness Allowance payable w.e.f. 01.10.2022 to the employees working in Agriculture shall be as under:-
Category of Worker Rates of wages including V.D.A. Area wise per day (in Rupees) A B C Unskilled 333+ 121=454 303+ 111=414 300+ 109=409 Semi-Skilled/Unskilled Supervisory 364+ 131=495 335+ 121=456 307+112=419 Skilled/ Clerical 395+ 144=539 364+ 131=495 334+121=455 High1y Skilled 438+ 158=596 4O7+147=554 364+131=495 The VDA has been rounded off to the next higher rupee as per the decision of the Minimum Wages Advisory Board.
The classification of workers under different categories will be same as in Part-l of the notification, whereas classification of cities will be same as in the Part-ll of the notification dated 19th January, 2Ol7. The present classification of cities into areas A, B & C is enclosed at Annexure I for ready reference.
(Remis Tiru) Chief Labour Commissioner(C)"
Since, the petitioner was doing the work of grazing of goats, which is an activity connected to agriculture, the minimum wages payable to a workman involved in agricultural field, can safely be considered for determining the Notional Income of the petitioner. If such employee works about 26 days in a month, then the monthly income would be Rs. 10,634/- (Rs. 409/- x 26 days) and consequently, the annual income would be Rs. 1,27,608/-. Therefore, considering the aforesaid minimum wages, the annual Notional Income of the petitioner can safely be calculated to Rs. 1,27,608/- and if we add 40 % of the same towards the loss of future prospects, total annual loss of earning capacity would be safely calculated as Rs. 1,27,608/- + Rs. 51,043/- (Total Rs. 1,78,651/- per annum) and since the age of the deceased was between 15 to 20 years, as per the Scheme of U.P. Power Corporation, the multiplier of 16 can be applied. Thus, the total loss of earning due to disability would be Rs. 28,58,416/- to which the petitioner is entitled in our considered opinion.
b) Compensation for Medical Expenses-
It is admitted case of the parties that the petitioner was not only treated at Nirmala Devi Charitable Society Hospital, Paschin Sarai, District- Kaushambi but subsequently, she was referred to District Hospital, Manjhanpur, District-Kaushambi, where she was treated from 02.08.2020 and was discharged on 19.09.2022. The right hand and left thumb of the petitioner have been amputated. The petitioner has stated in paragraph 5 of the writ petition that more than Rs. 2,00,000/- have been spent by the relatives for her treatment which has not been disputed by the respondent no. 2 in their counter affidavit. This being the admitted position, we award Rs. 2,00,000/- towards medical expenses incurred by petitioner for her treatment.
c) Future Medical Expenses-
The Hon'ble Supreme Court in the case of Sidram v. Divisional Manager, United India Insurance Co. Ltd. and Another, 2022 SCC OnLine SC 1597 held as under:
"67. At the outset, we may state that the "Future Medical Expenses" and "Attendant Charges" would fall within the ambit of Pecuniary Expenses. In Abhimanyu Partap Singh v. Namita Sekhon and Another, (2022) 8 SCC 489, this Court held:
"19. In view of the said legal position, the compensation can be assessed in pecuniary heads i.e. the loss of future earning, medical expenses including future medical expenses, attendant charges and also in the head of transportation including future transportation. In the non-pecuniary heads, the compensation can be computed for the mental and physical pain and sufferings in the present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life, etc."
Considering the age of the petitioner at the time of accident and even if the bare minimum expenses of Rs. 1,000/- per month is taken into consideration which the petitioner is likely to spent on her medical treatment throughout her life, then the compensation for future medical expenses can be calculated as Rs. 1,000 x 12 x 16. Therefore, the compensation of Rs. 1,92,000/- is awarded towards future medical expenses.
d) Attendant Charges-
Since the petitioner had suffered hundred percent permanent disability and she will not be able to work in the same manner as she used to do prior to the accident, therefore, she will require an attendant throughout the day for her daily chores.
Replying upon Paragraph 73 of the judgement in the case of Sidram (supra), we fix charges for medical attendant, which the petitioner may require, at the rate of Rs. 2,000/- per month. As a result of which we award Rs.3,84,000/- (Calculated as Rs. 2000/- X 12 X 16= Rs.3,84,000/-) towards attendant charges.
e) Loss of Conveyance and Special Diet-
Since the petitioner was admitted in the Hospital for about 49 days, the relatives must had spent on conveyance and the petitioner must have required the special diet during her treatment in the Hospital and, thereafter for sometime. Hence, relying upon Paragraph 89 of the judgement in Sidram (supra), we award Rs. 50, 000/- towards conveyance and special diet.
f) Pain and Suffering-
Hon'ble Supreme Court in Divisional Controller, KSRTC v. Mahadeva Shetty and Another (2003) 7 SCC 197 held in para 18 as under:
"18. A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident throughout his life 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. While fixing compensation for pain and suffering as also for loss of amenities of life, features like his age, marital status and unusual deprivation he has undertaken in his life have to be reckoned."
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka and Others, (2009) 6 SCC 1, Hon'ble Supreme Court granted an amount of Rs. 10,00,000/- on account of pain and suffering of the victim. However, that was a case related to an engineering student aged about 20 years.
In Sidram (supra), the Hon'ble Supreme Court in para 93 held as under:
"93. Pain and suffering would be categorized as a non-pecuniary loss as it is incapable of being arithmetically calculated. Therefore, when compensation is to be awarded for pain and suffering, special circumstances of the claimant have to be taken into account including the victim's age, the unusual deprivation the victim has suffered, the effect thereof on his or her future life..........."
While holding thus, the Hon'ble Supreme Court has awarded an amount of Rs. 1,00,000/- toward pain and suffering in the case of Sidram (supra). Likewise in the case of Subulaxmi v. Managing Director, Tamil Nadu State Tansport Corporation and Another (2012) 10 SCC 177, the Hon'ble Supreme Court awarded compensation of Rs. 1,00,000/- towards pain and suffering.
In the case of Jagdish v. Mohan and others (2018) 4 SCC 571, the Hon'ble Supreme Court has awarded Rs. 2,00,000/- as compensation on account of pain and suffering in the case of permanent disability. Thus, in our considered opinion, it will be appropriate to award compensation of Rs. 2,00,000/- towards pain and suffering, which the petitioner shall undergo throughout her life.
g) Marriage Prospects-
In Paragraph 19 of the judgement in the case of Ibrahim v. Raju and Others, (2011) 10 SCC 634, Hon'ble Supreme Court in para 19 has held as under:
"19. On account of the injuries suffered by him, the prospects of the appellant's marriage have considerably reduced. Rather, they are extremely bleak. In any case, on account of the fracture of pelvis, he will not be able to enjoy the matrimonial life. Therefore, the award of Rs 50,000 under this head must be treated as wholly inadequate. In the facts and circumstances of the case, we feel that a sum of Rs 2 lakhs should be awarded to the appellant for loss of marriage prospects and enjoyment of life."
In Master Ayush v. Branch Manager, Reliance General Insurance Company Ltd. and Another (2022) 7 SCC 738, the Hon'ble Supreme Court awarded Rs. 3,00,000/- for loss of marriage prospects. In Sidram (Supra), the Hon'ble Supreme Court awarded a sum of Rs. 3,00,000/- towards marriage prospects.
In the instant case, since the petitioner is an unmarried girl of eighteen years old and had lost her hand and thumb, her prospects of marriage have reduced. Therefore, we award a sum of Rs. 3,00,000/- towards loss of marriage prospects.
h) Loss of Amenities and Enjoyment of Life-
In Paragraph 18 of Govind Yadav v. New India Insurance Company Limited, (2011) 10 SCC 683, Hon'ble Supreme Court in para 18 held as under:
"18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254 and Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident."
In the case of Afnish v. Oriental Insurance Company Ltd. (2018) 13 SCC 119, the Hon'ble Supreme Court had awarded a sum of Rs. 5,00,000/- for the loss of amenities and enjoyment of life. Thus, having regard to the totality of circumstances of the petitioner herein we award a sum of Rs. 2,00,000/- towards loss of amenities and enjoyment of life.
28. Thus, the total compensation awarded under different heads are as under:
S. No. Compensation Amount (In Rupees) a Loss of Earning due to Disability Rs. 28,58,416/-
b Compensation for Medical Expenses Rs. 2,00,000/-
c Future Medical Expenses Rs. 1,92,000/-
d Attendant Charges Rs. 3,84,000/-
e Loss of Conveyance and Special Diet Rs. 50,000/-
f Pain and Suffering Rs. 2,00,000/-
g Marriage Prospects Rs. 3,00,000/-
h Loss of Amenities and Enjoyment Rs. 2,00,000/-
Total Rs. 43,84,416/-
29. Thus, the petitioner is entitled for a total compensation of Rs. 43,84,416/- with simple interest @ 6% per annum from the date of filing of claim application till realisation of the same, adjusting the amount earlier paid to the petitioner by the respondents. Out of the aforesaid amount of Rs. 43,84,416/- an amount of Rs. 5,81,000/- has already been paid by the respondent no. 2 to the petitioner. Out of the aforesaid total amount of compensation, a sum of Rs. 25,00,000/- shall be kept in the highest interest bearing Fixed Deposit Account in a Nationalised Bank in the name of the petitioner, with interest payable on monthly basis to enable the petitioner to meet her day-to-day expenses and maintenance. In case of some emergent requirements, the petitioner may be permitted to withdraw 25 percent of the said amount. The interest and the balance amount of compensation after adjusting the amount already paid, shall be paid to the petitioner directly within two months from the date of production of a certified copy of this order.
30. With the aforesaid direction the writ petition is allowed to the extent indicated above.
Order Date :- 15.2.2023 Kirti/Shubham Arya