MAC .APP.78/2008 Page 1 of 5 6 *IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC.APP. 78/2008 Date of Decision: 22nd April, 2009 % MASTER AJAY @ JURE ..... Appellant Through : Mr. Yashpal Shankar, Adv. versus ICICI LOMBARD GENERAL INSURANCE CO.LTD. & ORS ..... Respondents Through : Ms. Suman Bagga, Adv. for R-1. Ms. Ashu Rani, Adv. for Mr. Anil Kumar Verma, Adv. for R-2 and 3. CORAM :- THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? JUDGMENT (Oral) 1. The appellant has challenged the award of the learned Tribunal whereby compensation of Rs.1,58,500/- has been awarded to the appellant. The appellant seeks the enhancement of the award amount. 2. On 10th July, 2005, the appellant was crossing the road opposite Camp No.4, New Rohtak Road, Delhi when offending vehicle bearing No.DL3C AF 5069 hit him resulting in grievous injuries. MAC .APP.78/2008 Page 2 of 5 3. At the time of the accident, the appellant was 10 years old. The appellant suffered fracture of both bones of right leg, head injury and haemorraegic contusion in right occipital region. He was admitted in LNJP Hospital from 10th July, 2005 to 25th July, 2005 and two crossed ‘K’ wires were inserted in right ankle to stabilize it and external fixator was applied for fracture of both bones. He was again admitted in LNJP Hospital from 30th September, 2005 to 4th October, 2005 for skin grafting. 4. The disability of the appellant is permanent and has been assessed at 34% as per the disability certificate-Ex.PW- 2/1. 5. The learned Tribunal awarded Rs.5,000/- towards medical expenses, Rs.50,000/- towards pain and suffering, Rs.76,500/- towards loss of earning capacity, Rs.2,000/- towards conveyance and special diet and Rs.25,000/- towards loss of marriage prospects. The total compensation awarded is Rs.1,58,500/-. 6. The appellant seeks enhancement on the following grounds:- (i) The compensation for loss of earning capacity be enhanced by taking the notional income of the appellant as per minimum wages. (ii) The compensation for conveyance and special diet be enhanced. (iii) The compensation for loss of amenities be awarded. MAC .APP.78/2008 Page 3 of 5 7. With respect to the loss of earning capacity, the learned Tribunal has taken the notional income to be Rs.15,000/- per year according to the Second Schedule of the Motor Vehicles Act. It is noted that Second Schedule of the Motor Vehicles Act was incorporated in the year 1994 and the accident relates to the year 2005. During the last 11 years, there has been considerable increase in minimum wages due to inflation and price index. It is, therefore, appropriate to take the notional income to be Rs.22,500/-. The loss of earning capacity accordingly comes to Rs.1,14,750/- (Rs.22,500 x 15 x 34/100). 8. With respect to the compensation for conveyance and special diet, the learned Tribunal has awarded Rs.2,000/- which is considerable low considering the injuries suffered by the appellant. The appellant was hospitalized initially from 10th July, 2005 to 25th July, 2005 when to two crossed ‘K’ wires were inserted in right ankle to stabilize it and external fixator was applied for fracture of both bones. He was again admitted in LNJP Hospital from 30th September, 2005 to 4th October, 2005 for skin grafting. Following Section 114 of the Indian Evidence Act, it can be presumed that the appellant remained immobile for a long period and, therefore, expenditure was incurred on his conveyance and special diet. During the period of his hospitalization even the parents would have incurred expenditure on conveyance. It is, therefore, just, fair and reasonable to award Rs.5,000/- MAC .APP.78/2008 Page 4 of 5 towards conveyance and Rs.5,000/- towards special diet. 9. With respect to the loss of amenities of life, the learned Tribunal has not awarded any compensation. Considering the injuries suffered by the appellant and the permanent disability of 34% with which the appellant shall have to live for rest of his life and also noting that he was only 10 years at the time of the accident and has a long life ahead, Rs.25,000/- is awarded towards the loss of amenities of life. 10. The learned Tribunal has awarded interest @6% per annum. Following the judgment of the Apex Court in the case of Dharampal & Ors. vs. U.P. State Road Transport Corporation, III 2008 ACC (1) SC, the rate of interest is enhanced from 6% per annum to 7.5% per annum. 11. The appellant is entitled to a total compensation of Rs.2,29,750/- (Rs.5,000 + Rs.50,000 + Rs.1,14,750 + Rs.5,000 + Rs.5,000 + Rs.25,000 + Rs.25,000). 12. The appeal is allowed and the award amount is enhanced from Rs.1,58,500/- to Rs. 2,29,750/- along with interest @7.5% per annum from the date of filing of the petition till realization. 13. Respondent No.3 is directed to deposit the enhanced amount with the learned Tribunal within 30 days. Upon such deposit being made, the learned Tribunal is directed to put the same in the fixed deposit with a nationalized bank for a period of seven years or till the appellant attains majority, MAC .APP.78/2008 Page 5 of 5 whichever is later, on which periodical interest be paid to the appellant but no advance, loan or withdrawal be permitted without the permission of the learned Tribunal. 14. Copy of this order be given ‘Dasti’ to learned counsel for both the parties under signatures of Court Master. J.R. MIDHA, J APRIL 22, 2009 aj