IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.109/97
Judgment reserved on: 1.4.2008
Judgment delivered on:4.5.2009
Chandan Singh ......Appellant
Through Mr.OP Goyal, Adv
Versus
D.T.C & Anr. ........ Respondents
Through: Mr.JN Agarwal, 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 23.08.97 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs. 77,000/- with an interest @ 12% PA for the injuries caused to the claimant appellant in the motor accident.
The brief conspectus of facts is as under:
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2. On 6.12.86 at about 9.30 a.m when the appellant was going on his bicycle on Vikas Marg vehicle bearing registration no. DHP 2911 being driven by Respondent no.2 hit the bicycle from behind as a result of which the appellant sustained injuries. The accident took place because of the rash and negligent driving of respondent no.2.
3. A claim petition was filed on 09.04.87 and an award was passed on 23.8.96. Aggrieved with the said award enhancement is claimed by way of the present appeal.
4. Sh. OP Goyal 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 and submitted that the tribunal erred in assessing the income of the claimant appellant at Rs. 400/- PM and stated that the same should have been Rs.750/-as per minimum wages Act. Based on this, it is further contended that the loss of income should also be enhanced, accordingly. It is further submitted that Tribunal ought to have awarded atleast 60% loss of wages to the appellant. The Counsel also expressed his discontent on the amount of compensation granted towards medical expenses. He claimed an amount of Rs.5000 to Rs.6000/- 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 treated for FAO No. 109/97 Page 2 of 7 multiple injuries and compound fracture in his right leg which was subsequently amputated below knee, the learned Tribunal should have considered awarding that amount. He claimed Rs.6,75,800/- towards loss of permanent earning capacity. It is further submitted that the Tribunal ought to have awarded cost of limb and cost of replacement of artificial limb. The Tribunal awarded a sum of Rs.15,000/- towards mental pain & suffering but the counsel shows his discontent to that as well and averred that it should have been Rs.1,00,000/-. For permanent disablement also he sought a sum of Rs.2,00,000/-.
5. Per contra, Mr. J.N. Aggarwal contended that the award passed by the Tribunal is just and fair and does not require interference by this Court.
6. I have heard counsel for the parties and perused the recod.
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 FAO No. 109/97 Page 3 of 7 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 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. 2000/- for expenses towards medicines, special diet and conveyance expenses; Rs.15,000/- for mental pain and sufferings; Rs.20,000/- towards loss of amenities; Rs.10,000/- for loss of expectation of life; and Rs.30,000/- for loss of earnings.
9. On perusal of the award, it becomes manifest that the appellant had not placed on record any medical bill. As regards expenses towards medical, special diet and conveyance, the tribunal took cognizance of the FAO No. 109/97 Page 4 of 7 fact that the appellant sustained serious injuries and his right leg was amputated and awarded Rs.2000/- under these heads. The accident has taken place in the year 1986. I feel inclined to enhance the same to Rs.15000/-.
10. As regards mental pain & suffering, the tribunal has awarded Rs. 15,000/- to the appellant. The appellant sustained fracture in his right leg and his leg was amputated. In such circumstance, I feel that the compensation towards mental pain & suffering should be enhanced to Rs. 25,000/-.
11. 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. The right leg of the appellant was amputated and he has to live without his leg for entire life. 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.50,000/-.
12. The Tribunal has rightly awarded Rs.10,000/- for loss of expectation of life and I do not find any infirmity in the order in this regard. FAO No. 109/97 Page 5 of 7
13. As regards loss of earnings, due to permanent disability the appellant has placed on record photocopy of one certificate issued from his employer showing monthly salary as Rs.450/- p.m. Therefore contention of Ld. counsel to consider minimum wages cannot be considered. The accident took place in the year 1986. The appellant suffered 60% disability as per the certificate available on file. Considering the age of the appellant multiplier of 16 shall be appropriate. The amount towards loss of earning is thus enhanced to Rs.51,840/- (450 x 12 x 16 x 60%).
14. In view of the foregoing, Rs.15,000/- is awarded for expenses towards treatment, conveyance and special diet; Rs.25,000/- for pain and sufferings, Rs.50,000/- for loss of amenities and loss of enjoyment of life due to disability; Rs.10,000/- for expectancy of life; and Rs.51840/- for future loss of income.
15. In view of the above discussion, the total compensation is enhanced to Rs. 1,51,840/- from Rs.77,000/- 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 no.1 DTC within a period of 30 days from the date of this order.
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16. With the above directions, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J
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