* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 189/1998
Judgment reserved on: 03.03.2008
% Judgment delivered on: 6.4.2009
Jaswant Lal Nagpal
...... Appellant
Through: Mr. O. P. Mainee, Advocate.
versus
Anand Singh & Ors.
..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
KAILASH GAMBHIR, J.
1. The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 2.2.1998 for enhancement of compensation. The learned Tribunal awarded a total FAO No. 189/1998 Page 1 of 11 amount of Rs. 65,100/- with an interest @ 12% PA for the injuries caused to the claimant appellant in the motor accident.
2. The brief conspectus of facts is as under:
3. On 21.11.1992, at about 8:50AM on G.T. Karnal Road, near Har Milap Ashram, Delhi within the jurisdiction of P.S Model Town, Delhi, the appellant sustained injuries on account of rash and negligent driving of the bus bearing registration no. DL-1P-2515, when he was driving delivery van bearing registration no. DL-1A-2074 in the direction of Rana Pratap Bagh accompanied by his son, Sanjay Nagpal. A claim petition was filed on 30.3.1993 and an award was made on 2.2.1998. Aggrieved with the said award enhancement is claimed by way of the present appeal.
4. Sh. O.P. Mannie, counsel for the appellant claimant urged that the award passed by the learned Tribunal is inadequate and insufficient looking at the circumstances of the case. He assailed the said judgment of Learned Tribunal firstly, on the ground that the tribunal erred in assessing the income of the claimant appellant at Rs.1,009/- PM whereas he was actually earning Rs.3,500/-per month. It is further argued that Ld. Tribunal erred in taking into consideration the provisions of II schedule to the Motor Vehicles Act for assessing the FAO No. 189/1998 Page 2 of 11 loss of earning for 52 weeks only whereas the claim of the appellant was filed u/s 166 & 140 of M.V Act and as such, the Ld. Tribunal ought to have awarded the loss of income @ Rs.3500/-per month for 2 years and 7 months as appellant remained under active treatment upto the middle of 1995. The Counsel also expressed his discontent to the awarded compensation of Rs.33,000/- towards expenses on treatment, special diet and conveyance and claimed more than Rs.90,000/- under these heads. It was submitted that Ld. Tribunal erred in awarding the general damages to the tune of Rs.20,000/- and same should have been Rs.2,00,000/-. It is also submitted that no compensation for the permanent disability suffered by the appellant has been awarded by the Tribunal. It was further pleaded that Ld. Tribunal erred in not awarding any compensation for loss of earning capacity, loss of expectation of life, loss of amenities of life and for hardship, discomfort, disappointment, frustration & mental stress faced by the appellant. Further, the counsel pleaded that the tribunal erred in awarding an interest of 12% p.a instead of 24% p.a. It is further urged that Ld. Tribunal erred in passing the directions that 80% of the award with entire upto date interest shall be put in fixed deposit in any scheduled bank for a period of five years and tribunal ought to have FAO No. 189/1998 Page 3 of 11 released at least 75% of the award with proportionate interest to the appellant.
5. Nobody has been appearing for the respondents.
6. I have heard the counsel for the parties and perused the award.
7. In a plethora of cases the Hon'ble Apex Court and various High Courts have held that the emphasis of the courts in personal injury cases should be on awarding substantial, just and fair damages and not mere token amount. In cases of personal injuries the general principle is that such sum of compensation should be awarded which puts the injured in the same position as he would have been had accident not taken place. In examining the question of damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be taken in to account. In this regard the Supreme Court in Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197, has classified pecuniary and non- pecuniary damages as under:
"16. This Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd. 9 laying the principles posited: (SCC p. 556, para 9) " 9 . Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary FAO No. 189/1998 Page 4 of 11 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 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 the 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."
8. In the instant case the tribunal awarded Rs. 30,000/- for expenses towards medicines; Rs. 3,000/- for special diet & conveyance expenses; Rs. 20,000/- for general damages and Rs. 12,108/- on account of loss of earnings.
9. Ld. Tribunal awarded Rs.30,000/- for expenses towards medical treatment, on the basis of the treatment record and also documents in this regard being Ex. Pw8/1 to 61. Ex. PW5/56 and also Ex. PW2/1 proving the indoor treatment at Ganga Ram Hospital. Ex. PW5/65 and Ex. PW8/3 to 6 are other bills pertaining to medical expenses. The total of all these bills comes to Rs.27, 293.25/- and after considering the said amount and the nature of injuries suffered and the period of FAO No. 189/1998 Page 5 of 11 treatment undergone by the appellant, the tribunal awarded Rs. 30,000/- under the said head. I do not feel that there is any scope for interference in this regard.
10. As regards conveyance expenses and special diet, nothing has been brought on record. The tribunal after considering that the appellant suffered grievous head injuries; injuries on the back and ears and abrasion and bruises on other parts of the body and also considering the nature of injuries suffered and the period of treatment undergone by the appellant awarded Rs. 3,000/- in this regard. I do not find any infirmity in the order in this regard and the same is not interfered with.
11. As regards mental pain & suffering, the tribunal has not awarded compensation separately. The tribunal awarded a lump sum amount of Rs. 20,000/- to the appellant towards general damages, which are also called non-pecuniary damages and include ( i ) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in 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 the loss of expectation of life i.e. on account of injury the FAO No. 189/1998 Page 6 of 11 normal longevity of the person concerned is shortened; ( iv ) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life as discussed above in the judgment of Mahadeva Shetty (supra). I feel that the tribunal erred in awarding lump sum amount in this regard and ought to have awarded compensation under the separate heads. Therefore, keeping in mind that the appellant suffered grievous head injuries; injuries on the back and ears and abrasion and bruises on other parts of the body and also considering the nature of injuries suffered and the period of treatment undergone by the appellant, I feel that the compensation towards mental pain & suffering should be awarded at Rs. 20,000/-. As regards loss of amenities, resulting from the defendant's negligence, which affects the injured person's ability to participate in and derive pleasure from the normal activities of daily life, and the individual's inability to pursue his talents, recreational interests, hobbies or avocations, the compensation for the same should be separately awarded at Rs. 20,000/-.
12. As regards loss of earnings, no proof regarding income of the appellant was brought on record. It is no more res integra that mere bald assertions regarding the income of the victim are of no help to him in the absence of any reliable evidence being brought on record. FAO No. 189/1998 Page 7 of 11 The thumb rule is that in the absence of clear and cogent evidence pertaining to income of the victim learned Tribunal should determine income of the victim on the basis of the minimum wages notified under the Minimum Wages Act. Therefore, the tribunal assessed the income in accordance with the rates of minimum wages applicable under the MW Act @ Rs. 1009/-pm. The tribunal in para 10 of the award observed that the appellant continued to be treated for his injuries from the date of the accident on 21/11/1992 till middle of 1995, which means more than 2 years. It is no more res integra that in the absence of any reliable proof as regards the income of the victim the tribunal takes assistance of the II Schedule to the MV Act. The MV Act is a beneficial piece of legislation and should be interpreted in such a manner that it benefits the victims of the accident. In view of the above discussion, I am of the view that the tribunal ought to have assessed the loss of income for two and half year when the same was proved by the appellant vide Ex. PW8/1 to 61. Therefore, the award in this regard is modified to award compensation to the tune of Rs. 3,0270/- for 2 and a half year.
13. As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 24% p.a., I feel that the rate of interest awarded by the FAO No. 189/1998 Page 8 of 11 tribunal is just and fair and requires no interference. No rate of interest is fixed under Section 171 of the Motor Vehicles Act, 1988. The Interest is compensation for forbearance or detention of money and that interest is awarded to a party only for being kept out of the money, which ought to have been paid to him. Time and again the Hon'ble Supreme Court has held that the rate of interest to be awarded should be just and fair depending upon the facts and circumstances of the case and taking in to consideration relevant factors including inflation, policy being adopted by Reserve Bank of India from time to time and other economic factors. In the facts and circumstances of the case, I do not find any infirmity in the award regarding award of interest @ 12% PA by the tribunal and the same is not interfered with.
14. As regards the issue that the tribunal deposited 80% of the award amount in the nationalized bank, I feel that the same also does not suffer from any infirmity. In Lilaben Udesing Gohel vs. Oriental Insurance Co. Ltd. - 1996 ACJ 673 (SC) the Hon'ble Apex Court laid down broad guidelines which the Claims Tribunal should follow while disposing of the claim applications arising under the Motor Vehicles Act, 1989 to scotch complaints of misapplication of compensation money and that as per those guidelines the compensation money should be invested in a nationalised bank as a fixed deposit and the FAO No. 189/1998 Page 9 of 11 interest thereon should be paid directly to the claimant or his guardian, as the case may be. Therein, the Apex Court also held that in personal injury cases if treatment is necessary the Claims Tribunal on being satisfied about the same may after recording reasons for such satisfaction direct the Insurance Company to pay such amount to the claimant as is necessary for incurring the expenses for such treatment. This permission should be granted strictly after verifying the necessity of medical expenses. Therefore, the appellant can always seek withdrawal of the said deposited amount upon proof of any exigency. Therefore, no interference is made in the award on this count.
15. In view of the foregoing, Rs. 30,000/- is awarded for expenses towards medicines; Rs. 3,000/- for special diet & conveyance expenses; Rs. 20,000/- for mental pain and sufferings; Rs. 20,000/- for loss of amenities of life and Rs. 30,270/- on account of loss of earnings.
16. In view of the above discussion, the total compensation is enhanced to Rs.1,27,489/- from Rs. 65,100/- along with interest @ 7.5% per annum from the date of institution of the present petition till realisation of the award and the same should be paid to the appellant by the respondent insurance company.
FAO No. 189/1998 Page 10 of 11
17. With the above direction, the present appeal is disposed of.
6.4.2009 KAILASH GAMBHIR, J
FAO No. 189/1998 Page 11 of 11