IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4202 of 2006 (O&M) Date of decision:25.02.2011 Priyanka Bhutani ....Appellant versus Sukh Pal Singh and others ..Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Ashit Malik, Advocate, for the appellant. Mr. Parminder Singh, Advocate, for respondents 1 and 2. None for respondent No.3. Mr. Jagtar Kureel, Advocate, for Mr. D.P.Gupta, Advocate, for respondent No.4. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. The appeal is against the assessment of compensation for injuries suffered in an accident by a child (girl), aged 7 years. The child had head injury and it had a resultant impact in all other faculties. From how the child was in her initial stage to how she had come by a saga of misery, the Tribunal has considered the issue fairly elaborately and assessed a compensation of Rs.6,32,000/-. 2. The evidence of the parents and the doctors would require to FAO No.4202 of 2006 (O&M) - 2 - be examined in some detail to ascertain the social and economic status of the child and the possible expectations of the parents from such a child. The father was a business consultant and an income tax assessee. At the time of the accident, the child was studying in Bhatnagar International School, Paschim Bihar, New Delhi, which was said to be a popular school and the school had given a certificate (Ex.47) to state that the child was having a good academic record and she was actively participating in sports as well as dramatic activities conducted by the school. She had been conferred the award of Info-Hi-Wizard for her outstanding performance in computer for the year 2003-04 for class 2nd and that she was a part of dancing group in the annual function held on 9th May, 2004. The school had certified the girl child to be a sincere and hard working student. An immediate reference to what had come through the years to the child could be seen through yet another assessment made by the Sarvodaya Childcare at Delhi some time in the year 2010 reads as follows: “Poor academic performance, concentration fluctuation, slow in activities and poor social skills.” 3. An application has been filed in CM No.30615 of 2010 setting out the present condition of the child, medical treatment that is in progress and the certification of some doctors relating to her present condition. 4. The issue of disability has been spoken to by the doctor who examined her and the additional documents that have been filed before this Court shall be treated as relevant only in so far as they advert to the FAO No.4202 of 2006 (O&M) - 3 - fact of the continuity in treatment which has been indicated even in the earlier version of the doctors, who have given evidence to the effect that a full-fledged recovery was unlikely and that she might require treatment for the rest of her life. 5. The mother of the child has been examined as PW5, whose evidence is relevant for the following: The child had been taken to Parveen Hospital at Karnal soon after the accident and since her condition was critical, she was shifted to Sir Ganga Ram Hospital at New Delhi. She remained admitted as indoor patient for 23 days and the treatment is still in progress as outdoor patient. The child had fractures of her right tempo-parietal bone as result of which, she was bleeding in many parts of her brain. She was hale and hearty and was enjoying good health prior to the accident and she had now become totally handicapped, crippled and disabled. She had become totally dependent on others. She is unable to pursue her daily avocations. Due to the injuries in her head and particularly to the brain stump, she had lost her memory, her intelligence and her studies had been affected. The brain injuries had caused deformity in various parts of the body/limbs and she had abnormality in mental and intellectual functions. The face of the child was also disfigured. The functioning of the tongue and the ear have been affected as a result of which she could not speak and hear. She requires total care for the rest of her life. The prospects of her marriage have diminished. The mother has given evidence to the effect that she was being provided with medicines and physiotherapy, which cost about Rs.200/- per day and that it was likely to continue for years together. FAO No.4202 of 2006 (O&M) - 4 - She has been advised surgery for the left eye squint and the cost of the operation would be Rs.80,000/-. She had to undergone surgery for the right ear and the cost of the said operation shall be about Rs.20,000/-. She had to get rehabilitation treatment from the Rehabilitation Centre to remove her from the trauma that she had suffered on account of the accident. She was a lovely child and an apple of everyone's reckoning and her mental faculties have been so badly impaired that her future has become dark. 6. PW4-Dr.Rajesh Acharya, who had treated her immediately at Sir Ganga Ram Hospital, New Delhi, had been examined to speak about the fact that her present condition was only on account of the accident. The doctor had noted that the child had difficulty in balancing, squint in left eye, right ear deafness, poor control of bladder sphincter, causing incontinence. She has also slurring of speech and impairment of memory. All the deficits suffered by the patient are related to the brain injury. The doctor also stated that the patient had fits in the hospital and she was advised to be on anti-convulsants. The doctor had opined that deafness may or may not improve. The doctor had also given evidence to the effect that she passes urine in bed, has impaired memory and she would require an attendant at all times and that she would also require physiotherapy and rehabilitation as a part of treatment regimen. 7. The Neuro Surgeon Dr. Col. Vipin Walia, had been examined to state about the nature of disability that she had on account of severe head injury. The doctor stated that “she has severe deficit in form of cognitive impairment, memory loss, loss of coordination, FAO No.4202 of 2006 (O&M) - 5 - unsteadiness of gait, left side weakness, left squint, right deafness. In addition, her control over urine is poor. She is already on medication for treatment of epilepsy following the accident. In our view, to improve her condition, she would require a prolong and comprehensive rehabilitation involving surgery and doctors of various specialties.” The doctor had cautioned that he had counselled the parents that the child requires constant emotional support to ensure that while attending school, care should be taken by the teaching staff that in view of disabilities the child is not made fun of or humiliated. PW8 was a member of the medical board, who had assessed the whole body disability at 68%. She was a specialist neuro surgeon and the disability qua hemiparesis was 50% and 50% of the whole body and on a neuro physiological grading of disability, she was assessed at 40% and the whole disability was about 68%. The doctor affirmed that he had brought the copy of the manual on the basis of the assessment had been made. 8. An extensive reference to the oral evidence has been given only to make a proper basis for appreciating whether the assessment of compensation made already was just and whether the projections of long drawn treatment and the continuity of disability which the appellant has made in the appeal through her guardian finds adequate support. I have no doubt in my mind that the injury suffered by the child was prodigious and the compensation must ensure that she has adequate resources to take care of her physical and emotional needs through treatment and rehabilitation. Against the medical bills produced to the extent of FAO No.4202 of 2006 (O&M) - 6 - Rs.2,07,608/-, the Tribunal provided for a compensation of Rs.2,50,000/- and the medical bills filed in the appellate forum as additional evidence totalled around Rs.30,000/- and a provision for Rs.2,50,000/-, according to the learned counsel for the respondent, was appropriate. There is evidence on record, which is also supported by the evidence of doctors, that she might require further surgeries in future and require attention through several specialists of various organs. It was in evidence further that she would require an eye correction through surgery and also a surgical correction for her hearing impairment considering that she would require a treatment right through her life for various impairments. I would make an estimation towards the future medical expenses at another Rs.2,50,000/-. There is evidence of the mother as well as the doctors that she had suffered serious impairment of memory and she was wetting her bed that she would require two attendants for her. The evidence was that the attendant charges were about Rs.6,000/- per month. I will take the average expenditure for an attendant at Rs.5,000/- per month and take the annual expenditure at Rs.60,000/- and adopt a multiplier of 18 to return an amount that will take care of the attendant charges for the rest of her life. 9. There are certain subjective elements involved in the manner of assessment of compensation for pain and suffering or for loss of amenities or for reduction in life expectancy, but I have considered the various judicial approaches arising out of such serious conditions and I provide for amounts keeping in view of the decisions of the Hon'ble Supreme Court relating to compensation for injuries and provision for FAO No.4202 of 2006 (O&M) - 7 - appropriate compensation on such heads which require some approximations as held in Civil Appeal No.4119 of 1999 in Nizam Institute of Medical Sciences Versus Prasanth S. Dhananka and others. The child was in a good public school in New Delhi and I would believe that with the support of the parents, she would have been educated well and would have grown up in her life in social and economic standing. On the issue of how a parental expectation would itself be a justification for making appropriate compensation for children was brought through decisions of the Hon'ble Supreme Court in Lata Wadhwa Versus State of Bihar-2001(8) SCC 197 and M.S.Grewal Versus Deep Chand Sood-2002(1) RCR (Civil) 214. A still recent judgment in Priya Vasant Kalgutkar Versus Murad Shaikh and others- 2010 AIR (SC) 40 was a case of 9 years old girl, who had been injured, but with relatively a lesser disability at 10%. In all these decisions, the Courts have taken note of the basis of their own social and economic status as a basis for determining compensation. In Lata Wadhwa and M.S.Grewal, the Hon'ble Supreme Court was dealing with the cases of death, but death has a natural ability of annihilating the body. In serious injuries survive a person but dead for the rest of the life. I would think a more poignant situation is required to be addressed with greater sense of sensitivity and I have, therefore, provided for a compensation relating to the loss of earning capacity, although the injured person is only a child by what the child could have ultimately become. I will make a modest estimation on what she could have earned at Rs.10,000/- per month. The overall compensation is determined and is tabulated as follows:- FAO No.4202 of 2006 (O&M) - 8 - Sr.No. Heads of claim Tribunal High Court Amount (Rs.) Amount (Rs.) 1. Medical expenses: 2,50,000 5,00,000 2. Attendant charges - 10,80,000 (5000x12x18) 3. Special diet 2,000 5,000 4. Transport 10,000 20,000 5. Pain & Suffering- 20,000 1,00,000 6. Disability 68% 68% 7. Loss of earning capacity - 21,60,000 income x % of loss of (10,000x12x18) earning power x multiplier 8. Reduction in life 3,50,000 5,00,000 expectancy/loss of amenities 9. Loss of prospect 1,00,000 of marriage _______ ________ Total 6,32,000 44,65,000 10. The amount in excess over what has been determined by the Tribunal already shall attract interest at 6% from the date of petition till date of payment. 11. Since I am providing for a compensation for fairly a long period of life, I do not see a need for releasing the entire amount in lumpsum. I direct 25% of the amount to be released immediately to the parents and the rest 75% of the amount shall be invested spread over a period of 15 years in a nationalized bank or any government securities as the guardian of the child may suggest and the interest shall be payable to FAO No.4202 of 2006 (O&M) - 9 - the guardian-parent once in three months for expenses. For any particular contingencies urgent need, the party shall be at liberty to apply to the Court for withdrawal. The Court shall be circumspect against indiscreet application of money and ensure that the amounts in corpus are retained for we are factoring a compensation for injuries that have been sustained to a child at a fairly young age and that she may have to live through the travails for the rest of her life. In the manner of deposit, it shall have a greater play of discretion for the Tribunal as well as the parties, for ensuring that there is an appropriate return for the amount which is determined as compensation. 12 The appeal is allowed to the above extent. (K.KANNAN) JUDGE 25.02.2011 sanjeev