IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.10/1999
Judgment reserved on: 04.02.2008
Judgment delivered on: 04.05.2009
Smt.Vidya ......Appellant
Through Mr.J.S.Kanwar, Adv
Versus
Sh.Sat Prakash & Others ........ Respondents
Through: Kishore Rawat 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 16.01.1998 for enhancement of compensation. The learned Tribunal awarded a FAO NO.10/99 Page 1 of 8 total amount of Rs.41,600/- 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 31.12.87 at about 3.30 p.m Vidya Devi, was going in a rickshaw When her rickshaw was on Loni Road, opposite Rathi Mills a bus bearing no. URP 7502 being driven rashly and negligently by respondent no.1 Sat Prakash came from behind and hit the rickshaw. Appellants's right hand was crushed as a result of which her right hand from just near elbow had to be amputated. She remained admitted in the hospital for about 7 days.
4. A claim petition was filed on 3.6.1988 and an award was passed on 16.1.98. Aggrieved with the said award enhancement is claimed by way of the present appeal.
5. Sh. JS Kanwar counsel for the appellant 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 holding the contribution of the appellant at the rate of Rs.300/- p.m and in adopting a multiplier of 12. It is further submitted that no evidence was produced by the respondent to disprove the appellant's case that she used to help her husband in his job and as FAO NO.10/99 Page 2 of 8 such used to earn Rs.1000/- p.m. It is further averred that the appellant had been forced to take the services of domestic servant @ Rs.300/- per month. The Tribunal also erred in awarding lesser amount of compensation toward future earnings, mental pain and agony, the counsel contended.
6. I have heard Sh.JS Kanwar counsel for the appellant and Sh Kishore Rawat Adv for Respondent and have 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 FAO NO.10/99 Page 3 of 8 damages have to be assessed separately as pecuniary 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 has awarded Rs. 2000/- for expenses towards medicines; Rs.2000/- for special diet & conveyance expenses; Rs.16,000/- for mental pain and sufferings and loss of earning; & Rs.21,600/- for loss of future earnings.
9. With regard to the grand of medical expenses, on perusal of the award, it becomes manifest that the appellant had placed on record various bills total of which comes to Rs. Rs.822.55. The tribunal took cognizance of the fact that the appellant sustained imputation of her hand and awarded Rs.2000/- even though the appellant could not prove that she had incurred Rs.2000/- towards medical expenses. However, considering the fact that one has to FAO NO.10/99 Page 4 of 8 spend huge amount on purchase of medicines from open market even while being treated in Govt.hospital, I am inclined to enhance the compensation to Rs.10,000/- towards medicines.
9. As regards conveyance expenses, nothing has been brought on record. The appellant suffered grievous injury and her right hand was amputated. The tribunal after taking notice of this fact and in the absence of any cogent evidence awarded Rs.2000/- for conveyance & special diet expenses. I enhance the compensation to Rs.10,000/-towards conveyance and special diet.
10. As regards mental pain & suffering & loss of earning, the tribunal has awarded Rs.16,000/- to the appellant. The appellant suffered amputation of her right hand. In such circumstance, I feel that the compensation towards mental pain & suffering should be enhanced to Rs. 25,000/-.
11. As regards the compensation towards permanent disability/future earning, the income of the appellant was taken by the tribunal to be Rs.300/- p.m as stated by the appellant. The appellant met with the accident in the year 1987. The age of the appellant at the time of the accident was 30 years and 50% disability of the appellant was duly proved on record as Ex.PW1/28. The monthly loss to the appellant comes to Rs.150/-p.m Or Rs.1800/- p.a. The age of the injured is stated to be 30 years as per FAO NO.10/99 Page 5 of 8 the petition. At the age of 30 the appropriate multiplier is of 18 years. Therefore, after considering all these factors, the compensation towards loss of future earnings comes to Rs.32,400/-.
12. As regards loss of amenities due to permanent disability, Compensation for loss of amenities of life compensates victim for the limitation, resulting from the defendant's negligence, on the injured person's ability to participate in and derive pleasure from the normal activities of daily life, or the individual's inability to pursue his talents, recreational interests, hobbies or avocations. In essence, compensation for loss of expectation of life compensates an individual for loss of life and loss of the pleasures of living. I feel that the tribunal erred in not awarding the same and in the circumstances of the case same is allowed to the extent of Rs. 10,000/-.
13. As regards loss of earnings during treatment, no proof regarding income of the appellant was brought on record. The tribunal assessed notional income of the appellant at Rs.300/-p.m.. Taking it into consideration, I award a sum of Rs.5000/- to the appellant for loss of earnings during treatment period.
14. As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side. I feel that the rate of interest awarded by the tribunal is just and fair and requires FAO NO.10/99 Page 6 of 8 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, change of economy, 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.
15. In view of the foregoing, Rs. 10,000/- is awarded for expenses towards treatment; Rs.10,000/- for special diet & conveyance expenses; Rs.5000/- for loss of wages/earning during treatment; Rs.10,000/- for loss of amenities and enjoyment of life due to permanent disability & Rs32,400/- for loss of future earnings due to permanent disability and Rs. 25,000/- for pain and sufferings.
16. In view of the above discussion, the total compensation is enhanced to Rs. 92,400/- from Rs.41,600/- along with interest on the differential amount @ 7.5% per annum from the date of FAO NO.10/99 Page 7 of 8 institution of the petition till realisation of the award and the same shall be paid to the appellant by the respondents as directed by the tribunal within 30 days of this order.
17. With the above directions, the present appeal is disposed of.
04th May,2009 KAILASH GAMBHIR, J
FAO NO.10/99 Page 8 of 8