IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.136/92
Judgment reserved on: 2.4.2008
Judgment delivered on:4.5.2009
Rajeev Kumar ......Appellant
Through Mr.R.D.Sahalia, Adv
Versus
D.T.C. ........ Respondents
Through: Nemo
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 5/3/1992 for enhancement of compensation. The learned Tribunal awarded a total FAO No. 136/92 Page 1 of 10 amount of Rs. 1,16,000/- 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 7.9.79 at about 11.55 a.m the appellant was going on is scooter no. DLW 6476 from Rajouri Garden to his office. When he reached near Jagdamba wheel Industries at Najafgarh Road, a DTC Bus no. DLP 1578 (route no.812) being driven by Sh Nafe Singh came at a fast speed and without giving any horn hit his scooter while overtaking. The scooter of the appellant struck against a padestarian. He was dragged by the said bus upto 10/12 feet and he sustained injuries in his right leg which was got fractured and thereafter amputated from knee downwards.
4. A claim petition was filed by the petitioner and an award was passed on 5/3/1992. Aggrieved with the said award enhancement is claimed by way of the present appeal.
5. Sh. R.D. Shahlia, counsel for the appellant claimant urged that the tribunal erred in not awarding compensation for loss of leave and salary suffered by the appellant. The counsel maintained that the tribunal erred in awarding only 12% pa from the date of the award instead of awarding interest @ 18% pa from the date of filing of the FAO No. 136/92 Page 2 of 10 petition till realization. The counsel contended that the tribunal awarded meager amount towards mental pain and suffering, special diet, conveyance expenses, permanent disability, medical expenses and treatment and urged that the same should be enhanced. The counsel submitted that the tribunal erred in not noticing that the appellant has lost his working capacity and therefore, is entitled to future loss of earnings.
6. Nobody appeared for the respondents.
7. I have heard the counsel for the appellant and perused the award.
8. 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 FAO No. 136/92 Page 3 of 10 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 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."
9. In the instant case the tribunal awarded Rs. 1,000/- for conveyance expenses; Rs. 40,000/- for mental pain and sufferings; and Rs. 75,000/-on account of permanent disability to the extent of 40%.
10. On perusal of the award, it is manifest that the appellant had not placed on record any documentary evidence to prove the expenses incurred towards medical expenses. As regards medical expenses, the tribunal should have taken cognizance of the fact that due to the accident, the leg of the appellant was fractured and was amputated FAO No. 136/92 Page 4 of 10 from the knee downwards. He received severe head injuries and also received multiple injuries on his chest and other parts of the body due to being dragged by the bus and should have awarded at least Rs. 5,000/- towards medical expenses. Thus, the award is modified to this extent.
11. As regards conveyance expenses, nothing has been brought on record. Due to the accident, the leg of the appellant was fractured and was amputated from the knee downwards. He received severe head injuries due to which he was unable to give statement for about 2 months and also received multiple injuries on his chest and other parts of the body due to being dragged by the bus. Also, the appellant was directed by the doctor to attend OPD for sometime as is made out from the medical record. The tribunal after taking notice of this fact and in the absence of any cogent evidence awarded Rs. 1,000/- for conveyance expenses. I do not find any infirmity in the order in this regard and the same is not interfered with.
12. As regards special diet expenses, although nothing was brought on record by the appellant to prove the expenses incurred by him towards special diet but still the tribunal should have taken notice of the fact that since due to the accident, the leg of the appellant was FAO No. 136/92 Page 5 of 10 fractured and was amputated from the knee downwards. He received severe head injuries due to which he was unable to give statement for about 2 months and also received multiple injuries on his chest and other parts of the body due to being dragged by the bus, thus, he must have also have consumed protein-rich/special diet for his early recovery and should have awarded Rs. 5,000/- for special diet expenses.
13. As regards mental pain & suffering, the tribunal has awarded Rs. 40,000/- to the appellant. The leg of the appellant was fractured and was amputated from the knee downwards. He received severe head injuries due to which he was unable to give statement for about 2 months and also received multiple injuries on his chest and other parts of the body due to being dragged by the bus. In such circumstance, I feel that the compensation towards mental pain & suffering should be enhanced to Rs. 50,000/-.
14. As regards the compensation towards loss of earnings due to permanent disability, I feel that the tribunal has erred in not awarding the same as per the settled principle of law. Dr. Arun Goyal and Dr. B.P. Yadav opined in the disability certificate, Ex. PW64/1 that the case of the appellant is a case of amputation of right leg with knee FAO No. 136/92 Page 6 of 10 deformity and the disability is permanent and is 40%. It has also come on record that the age of the appellant at the time of the accident was 30 yrs, thus, considering that the accident took place in the year 1979, multiplier of 15 shall be applicable. Nothing has come on record as regards the work done by the appellant and his earnings. It has merely come on record that he was working at some office. In the absence of any evidence regarding the income of the appellant, the thumb rule is that in the absence of clear and cogent evidence pertaining to income of the appellant learned Tribunal should determine income of the appellant on the basis of the minimum wages notified under the Minimum Wages Act. The tribunal ought to have assessed the income of the appellant in accordance with the minimum wages of a skilled workman, notified under The Minimum Wages Act on the date of the accident, which was Rs. 320/- per month. But since no dispute is raised by the respondent in this regard, no interference is made in the award on this count. Therefore, the compensation towards permanent disability is awarded at Rs. 75,000/-.
15. As regards loss of amenities due to permanent disability, 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 FAO No. 136/92 Page 7 of 10 talents, recreational interests, hobbies or avocations. Considering that the appellant suffered amputation of his toe, I feel that the tribunal erred in not awarding compensation under this head and in the circumstances of the case same is allowed to the extent of Rs. 25,000/- .
16. As regards loss of earnings, no proof regarding income of the appellant was brought on record. The tribunal should have assessed income of the appellant at Rs. 320 pm on the basis of the minimum wages notified under the Minimum Wages Act. Further, it has come on record that the appellant met with the accident on 7/9/1979 and remained in hospital till 21/11/1979. Due to the accident, the leg of the appellant was fractured and was amputated from the knee downwards. He received severe head injuries due to which he was unable to give statement for about 2 months and also received multiple injuries on his chest and other parts of the body due to being dragged by the bus. Considering this, Rs. 1,920/- (320 x6 ) is awarded under this head for loss of income for 6 months.
17. As regards the issue of interest that the tribunal erred in awarding an interest for the period from the date of award, I feel that the tribunal ought to have given reasons for disallowing the FAO No. 136/92 Page 8 of 10 compensation for the said period. 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 by virtue of S. 171 MV Act. Tribunal cannot deny interest to the appellant without giving any reasons. Therefore, the interest is allowed from the date of filing of the petition till realization @ 12% pa as awarded by the tribunal.
18. In view of the foregoing, Rs. 5,000/- is awarded for expenses towards medicines; Rs. 5,000/- for special diet; Rs. 1,000/- for conveyance expenses; Rs. 50,000/- for mental pain and sufferings; Rs. 25,000/- towards loss of amenities; Rs. 75,000/- on account of permanent disability to the extent of 40% and Rs. 1,920/- on account of loss of earnings.
19. In view of the above discussion, the total compensation is enhanced to Rs. 1,62,920/- from Rs. 1,16,000/- along with interest on the differential amount @ 7.5% per annum from the date of institution of the petition till realisation of the award and the same shall be paid to the appellant by the respondent DTC within 30 days of this order. FAO No. 136/92 Page 9 of 10
20. With the above directions, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J
FAO No. 136/92 Page 10 of 10