Jammu & Kashmir High CourtUnion Of India And Ors. vs Devi Dass on 9 December, 2016Author:Ramalingam SudhakarBench:Ramalingam SudhakarHIGH COURT OF JAMMU AND KASHMIR
                                  AT JAMMU
C.I.M.A No. 389/2009
MP Nos. 144/2011 & 504/2010
                                          Date of order:-09/12/2016


Union of India and ors.           V.                 Devi Dass.

Coram:

        Hon'ble Mr. Justice Ramalingam Sudhakar, Judge

Appearing counsel:

For the Appellant(s ):      Mr. N.A.Choudharyt, Advocate.
For the respondent(s) :     Mr. Suneel Bakshi, Advocate.i) Whether approved for reporting in      Yes.
           NET.ii)  Whether approved for reporting in      No.
           Digest/Journal.____________________________________________________________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,2Government 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
                     18.8.066. 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 appellant's 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 was3earning   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 Rs. 1,00,000/-life
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 amount4has 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
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