* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 372/1999
Judgment reserved on: 20.2.2008
% Judgment delivered on: 4.5.2009
Sh. Sadruddin ...... Appellant
Through: Mr. Y.R. Sharma, Advocate
versus
Sh. Prem Singh & Ors. ..... Respondents
Through: Mr. Manoj Ranjan Sinha, Advocate
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 NO
in the Digest?
KAILASH GAMBHIR, J.
1. The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 10.5.99 for enhancement of compensation. The learned Tribunal awarded a total FAO NO. 372/99 Page 1 of 11 amount of Rs.98,354/- 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 08.12.88, at about 11AM, the claimant Sh. Sadruddin while driving his two wheeler scooter bearing registration no. DBO-9218 was passing from Tek chand Railway crossing, New Delhi at a slow speed on his proper left hand side. At that very time, a bus bearing registration no. DBP-781 driven by R1 rashly and negligently and at a fast speed came from Faridabad side and hit the petitioner appellant from behind without blowing any horn or giving any signal. As a result, Sadruddin suffered serious injuries.
4. A claim petition was filed on 29.05.89 and an award was passed on 10.05.1999. Aggrieved with the said award enhancement is claimed by way of the present appeal.
5. Sh. Y. R. Sharma, counsel for the appellant claimant urged that the tribunal erred in assessing the loss of income of the claimant appellant at Rs. 1500/- and stated that the same should have been at Rs.36,000/-. The Counsel also expressed his discontent on the amount of compensation granted towards medical expenses. He claimed an FAO NO. 372/99 Page 2 of 11 amount of Rs.20,000/- towards the medical treatment and expenses. The claimant appellant did not produce medical bills to claim the stated amount, but he contended that looking at the facts and circumstance of the case and the fact that the claimant was under prolonged treatment, the learned Tribunal should have considered awarding that amount. Enhancement is also claimed on the ground that a sum of just Rs.10,000/- is awarded towards conveyance instead of the claim of Rs.50,000/- . Amount towards the special diet is also sought to be enhanced from Rs.5,000/- to Rs.1,50,000/-. The Tribunal awarded a sum of Rs.60,000/- towards non-pecuniary damages/pain and suffering but the counsel showed his discontent to that as well and averred that it should have been Rs.2,00,000/-. Further, petitioner claimed Rs.2,00,000/- for permanent disablement suffered by him. Claimant appellant also claimed Rs.14,400/- towards the amount paid to the attendant for rendering his services. Further, the counsel maintained that the tribunal erred in awarding an interest of 12% pa instead of 18% pa.
6. Per contra, Mr. Manoj Ranjan Sinha counsel for the respondent insurance company contended that the award passed by the Ld. FAO NO. 372/99 Page 3 of 11 Tribunal in the facts of the present case is just and fair and does not warrant interference of this court.
7. I have heard the counsel for the parties 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 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. 372/99 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."
9. In the instant case the tribunal has awarded Rs.11,874/- for expenses towards medicines; Rs.5,000/- for special diet; Rs. 10,000/- for conveyance expenses; Rs.60,000/- for non-pecuniary damages; and Rs.1500/- on account of loss of income.
10. On perusal of the award, it is manifest that the appellant had placed on record various bills bearing bill no. 85390 dated 22/12/1998 Ex PW2/4, which comes to a total of Rs3068/-, bills Ex. PW7/1 to Ex. PW7/62 totalling for a sum of Rs.7869.65/- and bills Ex. PW3/2 to Ex. PW3/21 totalling for a sum of Rs.936.35/-. As regards medical expenses, the tribunal took cognizance of the fact that the appellant FAO NO. 372/99 Page 5 of 11 sustained serious head injuries and awarded Rs.11,874/- towards medical expenses on the basis of the aforesaid documents. I do not find any infirmity in the order in this regard and the same is not interfered with.
11. As regards conveyance expenses, no documentary evidence was produced on record. The appellant suffered head 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.
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 took notice of the fact that since the appellant sustained serious head injuries, thus he must have also consumed protein-rich/special diet for his early recovery and awarded Rs.5,000/- for special diet expenses. I do not find any infirmity in the order in this regard and the same is not interfered with.
13. As regards compensation towards non pecuniary damages/mental pain & suffering, permanent disability and loss of FAO NO. 372/99 Page 6 of 11 amenities of life, the tribunal awarded Rs. 60,000/- to the appellant. The Tribunal after considering the fact that due to the accident, the entire life of the appellant was paralysed and same also affected the life of the family members awarded the said amount. Considering that the appellant sustained head injury and bruises & abrasions all over the body, I feel that the compensation under these heads should have been separately awarded by the tribunal. In this regard, Rs. 50,000/- is awarded towards mental pain and sufferings.
14. As regards loss of earnings due to permanent disability of 50%, considering that Tribunal assessed notional income of the appellant at Rs. 3,000/- p.m. and considering that he was of 38 years of age at the time of the accident and accident took place in 1988, the multiplier of 14 shall be appropriate, then loss of earnings due to disability shall come to Rs. 2,52,000/- (3000 x 12 x 14 x 50%).
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 talents, recreational interests, hobbies or avocations. Considering that FAO NO. 372/99 Page 7 of 11 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 medical attendant, claimant deposed that he engaged an attendant at a salary of Rs.1200/-per month to look after him for a period of about one year. The same fact has also come in the deposition of PW-7 brother of the claimant. The appellant has claimed compensation towards attendant charges incurred by the appellant for one year @ Rs. 1200/-pm. But, no documentary proof was given in this regard. Considering the fact that appellant suffered head injury which would not have restricted his movements and also considering that he had a large family comprising of five children and wife and also considering the fact that he was earning about Rs.2,500/- pm, I feel that he could not have afforded an attendant. Therefore, I am not inclined to award any amount under this head as claimed by the appellant.
17. As regards loss of earnings, no documentary proof regarding income of the appellant was brought on record. The tribunal assessed FAO NO. 372/99 Page 8 of 11 notional income of the appellant at Rs. 3,000/- pm and awarded Rs. 1,500/- towards loss of income for 17 days, the period during which the appellant could not work. It is no more res integra that mere bald assertions regarding the income of the deceased are of no help to the claimants in the absence of any reliable evidence being brought on record. The thumb rule is that in the absence of clear and cogent evidence pertaining to income of the deceased learned Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act. But considering that no dispute in this regard is raised by the appellants, in the interest of justice, no interference is made in the award.
18. 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 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 FAO NO. 372/99 Page 9 of 11 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.
19. In view of the foregoing, Rs.11,874/- is awarded for expenses towards medicines; Rs.5,000/- for special diet; Rs. 10,000/- for conveyance expenses; Rs.50,000/- for mental pain and sufferings; Rs. 25,000/- for loss of amenities of life due to permanent disability; Rs. 2,52,000/- towards loss of earnings due to permanent disability and Rs.1500/- on account of loss of income.
20. In view of the above discussion, the total compensation is enhanced to Rs. 3,55,374/- from Rs. 98,354/- with interest on the differential amount @ 7.5% per annum from the date of filing of the petition till realisation and the same shall be paid to the appellant by the respondent insurance company within a period of 30 days from the date of this order.
FAO NO. 372/99 Page 10 of 11
21. With the above directions, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J.
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