F.A.O.No. 691 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1) F.A.O.No. 691 of 1989 Bal Kishan ....Appellant Versus Mohinder Kumar and others ...Respondents 2) F.A.O.No. 692 of 1989 Smt. Krishna Devi (dead) through L.Rs. and others ....Appellants Versus Sultan Singh and others ...Respondents Date of Decision : 16.10.2008 CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Jagdish Manchanda, Advocate for the appellant (s) in both the appeals. None for the respondents. ..... MAHESH GROVER, J. This order will dispose of the aforesaid two appeals filed by the claimant(s) for grant of enhanced compensation. An accident occurred on 3.11.1986 in which one Raj Kumar lost his life and Bal Kishan received injuries. In the claim petition filed by appellant/claimant Bal F.A.O.No. 691 of 1989 -2- Kishan the Tribunal, after considering the evidence, awarded a compensation of Rs.40,240/- under the following heads :- i) Medical expenses inclusive Rs.11,300/- of convenience charges. ii) Special diet during the period Rs.2,400/- of confinement. iii) Loss of earnings on account of Rs.5,600/- confinement. iv) For pain, shock and suffering Rs.7,500/- due to injuries. v) Permanent disfigurement and Rs.13,440/- loss of enjoyment and future earnings. Learned counsel for the appellant/claimant Bal Kishan referred to the testimony of PW1 Dr.K.L.Sachdeva, who testified as follows :- “.....I attended on Bal Kishan son of Ram Sarup who was admitted in Ward No.2 of the Civil Hospital 1, Karnal, who was admitted through emergency department of the hospital. On the same day after assessment of the case he was operated upon and a plaster was applied. Again on 28.11.86 second operation was done. Again on 9.12.86 third operation was done. On 9.12.86 the operation done was skin grafting as the wound was healthy. Again on 1.1.87 bone grafting and fixation of fracture was done by double pins. Then on 20.1.87 full thickness skin grafting in the form of turnover flag was done and also at the same sitting bone grafting again was done. Then on 28.3.87, upper end of fibula was fixed to the tibia to F.A.O.No. 691 of 1989 -3- stabilise the fracture. Then on 28.4.87 the lower part of the fibula was fixed with screw to the lower part of the tibia so that a gap grafting of the missing tibia bone was done. Patient was discharged from the hospital on 19.5.87 still advised to come for follow-up as the bone union had not occurred. Bal Kishan had a badly compound, comminuted with bone gap in the tibia in his right leg. Discharge slip of Civil Hospital, Karnal is Ex.P1. On reference from CMO Karnal on 14.5.87 I issued a disability certificate in respect of Bal Kishan showing 45% disability, which was temporary in nature....” It was contended by him that even if all other factors regarding the grant of disability certificate are considered, the appellant had to undergo 7 operations and was hospitalised for a period of 8 months and, thus, for the pain and sufferings, which he had to undergo, has not been compensated adequately. He further contended that even though there is initial opinion of the doctor that 45% disability was temporary in nature, yet during the course of proceedings, evidence has come on record to show that 20% was the permanent disability which could also be erased subject to another operation. In this view of the matter, it was pleaded that the compensation awarded is grossly inadequate. No one appears for the respondents. I have heard the learned counsel for the appellant and have perused the award. F.A.O.No. 691 of 1989 -4- The testimony of PW1 Dr.K.L.Sachdeva is unimpeachable. The appellant concededly had to undergo 7 operations and was hospitalised for a long period of time. The disability, even though given out as 45% at the initial stage and described as temporary in nature, was re-assessed by PW10 Dr.N.S.Chadha, who opined that the permanent disability was 20%, which could also be eliminated, provided another operation was undertaken. Implying thereby that appellant Bal Kishan would have had to undergo another operation if his disability could be erased completely. There is no evidence to suggest that he had accepted the operation as a part of the treatment. So, it would be safe to assess his permanent disability from the accident as 20%. The Tribunal has awarded a sum of Rs.11,300/- on account of the medical expenses. The evidence on record suggests almost a similar amount which was claimed by the appellant. Therefore, there is no reason to disturb the amount awarded under this head. Under the head 'special diet', only a sum of Rs.2,400/- has been awarded, which is inadequate considering the number of operations and the period of confinement. It would be safe to grant a sum of Rs.25,000/- on account of special diet. The appellant was hospitalised for a period of 8 months on account of the injuries and, therefore, would have required an attendant. An amount of Rs.10,000/- is awarded under this head. There is no evidence to suggest what loss of earning he had suffered and, therefore, the amount awarded under this head also F.A.O.No. 691 of 1989 -5- does not warrant any interference. For the pain and suffering, the appellant is held entitled to a sum of Rs.50,000/- considering the number of operations he had to undergo. As far as the permanent disability is concerned, taking it as 20% and applying the principle of Rs.2,000/- per percent of disability, the amount of compensation under this head is enhanced to Rs.40,000/-. In this manner, appellant Bal Kishan is held entitled to a total compensation of Rs.1,41,900/-. In so far as FAO No.692 of 1989 is concerned, the claim petition was preferred by the legal heirs of deceased Raj Kumar, aged 29 years and the Tribunal took the income of the deceased as Rs.700/- to Rs.750/- per month and dependency as Rs.500/-. By applying a multiplier of 16, an amount of Rs.96,000/- was assessed as compensation to be awarded to the appellants/claimants. The widow of the deceased died during the pendency of the appeal. It was contended by the learned counsel for the appellants in F.A.O.No.692 of 1989 that the deceased was working as a mechanic and, therefore, his income assessed at Rs.750/- by the Tribunal is grossly inadequate. Even if he was working as a labourer at the time when accident took place, his income ought to have been assessed between Rs.800/- to Rs.900/- per month. It was next contended that the principle of deducting 1/3rd of the income could have been dispensed with in the given set of circumstances when the income was meager and the dependents were more. I have heard the learned counsel for the appellants in F.A.O.No. 691 of 1989 -6- F.A.O.No.692 of 1989 and have perused the award. The deceased was said to be a mechanic. However, there is no cogent evidence to show that he was working as such. But at the same time the court cannot be oblivious to the fact that the mechanics who are often found working as such are not the products of any legitimately sponsored educational degrees or diplomas. They work in unorganised sector to eke out the livelihood and even get their training by working initially as helping hands. Accordingly, considering the fact that he was a semi-skilled person, it would be safe to assess his income at Rs.1,000/- per month. He was survived by his widow, two minor children and mother at the time of his death and therefore deduction of 1/4th should be just and adequate. In this manner, the dependency works out to Rs.750/- per month. Given his age, the multiplier of 18 as prescribed by the schedule of the Motor Vehicles Act should be just and adequate. So computed the amount of compensation comes to Rs.1,62,000/-. As nothing has been awarded on account of funeral expenses, therefore, it would be safe to award an amount of Rs.15,000/- on account of funeral expenses and loss of estate etc. Thus, the total amount of compensation works out to Rs. 1,77,000/- which the appellants are held entitled in F.A.O.No.692 of 1989. The enhanced amount of compensation in both the appeals shall be paid along with interest @ Rs.9% per annum from the date of filing of the respective petitions till the date of realisation. F.A.O.No. 691 of 1989 -7- The liability to satisfy the award shall be the same as has been determined by the Tribunal. With the aforesaid modification in the impugned award, both the appeals stand allowed. 16.10.2008 (MAHESH GROVER) JUDGE dss F.A.O.No. 691 of 1989 -8-