IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.289/99
Judgment reserved on: 28.2.2008
Judgment delivered on:4.5.2009
Laxmi Narain ......Appellant
Through Mr. O.P. Goyal, Adv
Versus
Tirlochan Singh & Ors. ........ Respondents
Through: Mr. Kanwal Chaudhary, Adv
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 01.05.99 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs. 95,400/- 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 2.6.89 at about 2 p.m, appellant Laxmi Narain was driving a two FAO 289/99 Page 1 of 8 wheeler scooter bearing registration no. DHF 5092 and was going towards his house situated in Madipur, New Delhi. In the meantime bus bearing registration no. DBP 3356 came on the wrong side of the road and hit his scooter. As result of this, the petitioner fell down and received injuries.
4. A claim petition was filed on 13.10.89 and an award was passed on 01.05.99. Aggrieved with the said award enhancement is claimed by way of the present appeal.
5. Sh. O.P Goyal counsel for the appellant claimant claims enhancement through this appeal. The counsel 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. The appellant was earning Rs.1500/- to Rs. 2000/- per month and loss of income for three years should have been Rs.54,000/- instead of Rs.20,000/-. Based on this, it is further contended that the loss of income should also be enhanced, accordingly. The Counsel also expressed his discontent on the amount of compensation granted towards medical expenses. Enhancement is also claimed on the ground that a sum of just Rs. 10,000/- is awarded towards conveyance. Amount towards the special diet is also sought to be enhanced from Rs.5000/- to 20,000/-. The Tribunal awarded a sum of Rs.5000/- towards mental pain & suffering but the counsel shows his FAO 289/99 Page 2 of 8 discontent to that as well and averred that it should have been Rs. 5,00,000/-. In respect to a sum of RS. 54,000/- for total loss of earnings for a period of three years, learned counsent contended that the Tribunal ought to have awarded 40% loss of wages and future prospects should have been assessed. Loss of earning capacity of 40% for a period of 30 years should also have been awarded to the tune of Rs.3,60,000/-. Amount towards expenses incurred in repairing the damage to the vehicle is also pleaded through this appeal. Further the counsel pleaded that the tribunal has erred in awarding the interest on Rs. 20,000/- only and he claimed interest @ 18% p.a. w.e.f the date of filing of the petition.
6. I have heard the counsel for the appellant Sh.OP Goyal and Sh Kanwal Chaudhary Counsel for the 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: FAO 289/99 Page 3 of 8
"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."
8. In the instant case the tribunal has awarded Rs.5000/- for expenses towards medicines; Rs. 5000/- for special diet; Rs.10,000/- for conveyance expenses; Rs. 5,000/- for mental pain and sufferings; Rs. 50,400/- on account of permanent disability to the extent of 20% and Rs. 20,000/- on account of loss of earnings.
9. On perusal of the award, it is manifest that the appellant had placed on record various bills which are Ex.PW4/1 to Ex.PW4/67 which comes to worth Rs.3,000/-. As regards medical expenses, the tribunal took cognizance of the fact that the appellant sustained serious crush injury in his leg (compound fracture of tibia and fibula of left leg). FAO 289/99 Page 4 of 8 awarded Rs.5000/- even though the appellant could not prove that he had incurred Rs.5000/- towards medical expenses. The appellant has been treated in Government Hospitals as per available record. I do not find any infirmity in the order in this regard and the same is not interfered with.
10. As regards conveyance expenses, nothing has been brought on record. The appellant suffered compound fracture injuries. The tribunal after taking notice of this fact and in the absence of any cogent evidence awarded Rs.10,000/- for conveyance expenses. I do not find any infirmity in the order in this regard and the same is not interfered with.
11. 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 took notice of the fact that since the appellant sustained serious injuries and thus he must have also consumed protein-rich/special diet for his early recovery and awarded Rs. 5000/- for special diet expenses. I do not finding any informing in the order in this regard and same is not interference with.
12. As regards mental pain & suffering, the tribunal has awarded Rs. 5,000/- to the appellant. The appellant sustained compound fracture of tibia and fabula in left leg and his skin was peeled off. He was also operated and skin grafting was done. In such circumstance, I feel that the compensation towards mental pain & suffering should be enhanced to Rs. 50,000/-.
FAO 289/99 Page 5 of 8
13. As regards the compensation towards loss of earnings due to permanent disability, I feel that the tribunal has erred in calculating the same. The income of the appellant was not duly proved. However, the Tribunal has considered the income as Rs.1500/- p.m as mentioned in the petitioner. The petitioner suffered 40% disability for a particular limb. His disability therefore is taken as 20% for the whole body. In other words his earning capacity has been reduced by Rs.300/- p.m. Or 3600 p.a. The age of the appellant is mentioned as 30 years as on the date of accident. The appropriate multiplier at the age of 30 is of 18. Therefore the amount for permanent disability comes to Rs. 64,800/-.
14. 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.20,000/-.
15. 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. 1500/- pm and awarded FAO 289/99 Page 6 of 8 Rs.20,000/- towards loss of income, the period during which the appellant could not work. The appellant has stated that he could not work for 3 years. In such a circumstances and facts of the case the appellant is awarded a sum of Rs.25,000/- towards loss of income.
16. 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 18% p.a., I feel that the rate of interest awarded by the tribunal is just and fair and requires 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 interfered with.
17. In view of the foregoing, Rs.5,000/- is awarded for expenses towards treatment; Rs.5,000/- for special diet; Rs.10,000/- for conveyance expenses; Rs.25,000/- for loss of wages; Rs.20,000/- for loss of amenities and enjoyment of life & Rs.64,800-/- for permanent disability FAO 289/99 Page 7 of 8 and Rs.50,000/- for pain and sufferings.
18. In view of the above discussion, the total compensation is enhanced to Rs.1,79,800/- from Rs.95,800/- 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 should be paid to the appellant by the respondents as directed by the tribunal within 30 days of this order.
19. With the above direction, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J
FAO 289/99 Page 8 of 8