Santosh Gupta vs Swaran Singh And Ors.
1989 Latest Caselaw 375 Del

JUDGMENT

Malik Sharief Ud-Din, J.

1. The appellant has made a grievance in respect of an award dated 11th of January 1980. Passed by the Motor Accident claims Tribunal, Delhi, allowing compensation to the tune of Rs. 5600/- with costs. The order further states that the amount shall be deposited within sixty days failing which the appellant shall be entitled to interest on the awarded amount at the rate of 6% per annum. The grievance of the appellant is that considering the nature of the injury, discomfort and pain suffered and also the pecuniary loss the Tribunal has erred in not allowing her compensation of Rs. 50,000/- for which she had asked.

2. The action before the Tribunal was brought as a result of an accident by the offending scooter No. DLR 9039 which the respondent No. 1 in the claim petition was driving rashly and negligently on 12th of October 1973 at about 12.05 noon as a result of which the appellant got involved in an accident and suffered a fracture in her left foot. The vehicle was insured with respondent No. 3 while respondents No. 2 and 4 are supposed to be the owners of the offending vehicle.

3. I have heard the learned Counsel for the parties. The point for consideration in this appeal falls within a very narrow compass inasmuch as the other tide has made no grievance about the finding of the Tribunal that the accident was the result of rash and negligent driving of the offending vehicle by the driver. The liability of the insurance company to the extent of Rs. 50,000/- as determined by the Tribunal is also not in dispute. The only grievance as noticed earlier made by the appellant is that the learned Tribunal was in error in fixing the amount of compensation at Rs. 5600/-.

4. Now the admitted position as also evidenced by M.L.C. No. 110967 of the Willing don hospital as also by P.W. 4 Dr. K.N. Jain is that the appellant had suffered a fracture of third and fourth meta-tarsal bone of the left foot and she received treatment in the hospital as well as at the hands of Dr. K.N. Jain. Dr. K.N. Jain has not stated that the services were rendered by him against payment of any fee and that obviously his services were placed at the disposal of the appellant gratuitous. This, in fact, in the short medical history and relying on the testimony of the appellant herself she suffered pain and discomfort and went on regular treatment for a period of six months. There is no evidence that this injury resulted in any permanent disability. Obviously, it was a case of grievous hurt. The appellant herself had stated that she had to spend between Rs. 2,000/- and Rs. 2,500 on her medical treatment, Rs. 1500 as conveyance charges for visiting the hospital and since due to the injuries she could not engage in the household activities she had to procure the services of a domestic servant for a period of six months at the rate of Rs. 100/-. These expenses were asked for by the appellant apart from the general damages, which she had also claimed. The Tribunal allowed Rs. 200/- each on the aforesaid three counts and assessed the general damages at Rs. 5,000/- in the light of the judgment of this Court in Municipal Corporation of Delhi and Ors. v. Shanti Devi Dutt and Anr. 1975 ACJ 508.

5. Mr. Goyal submits that the general damages assessed are ridiculously low, while Mr. Thadani Maintains that on the facts and circumstances of this case the decision in Gurdip Singh v. Chauhan Bhupendra Kumar Udesingh and Anr. 1980 A.C.J. 184 as referred to by Mr. Goel is not applicable to the facts of the present case. I fully agree with the learned Counsel for the respondent No. 3 that the case supra is not applicable inasmuch as in that case a permanent disability, which was irreversible, was suffered by the person involved in the accident. In the present case, facts are very simple in as much as this Court has not to compensate the appellant for any permanent disability. The disability in this case was temporary and it naturally must have interfered with the normal routine of the appellant for six months during which she was undergoing treatment. The learned Tribunal assessed Rs. 200/- each on account of medical treatment, conveyance charges and salary of domestic servant fictionally as is was of the view that no evidence has been led in respect of the said claim. I am not in agreement with the finding of the Tribunal. It cannot be said that it is a case of no evidence for the reason that there is in existence the testimony of the appellant herself, which has not been rebutted. True, that there is no documentary evidence but this may not be available in each case. All that the court has to see, therefore, is to determine whether the claim made is in any way inflated or exaggerated. It is likely to happen in the cases that the claimant may unnecessarily inflate the claims. Considering the fact that she had to undergo treatment for six months a sum of Rs. 2,000/- claimed by her on account of medical expenses, in my view, is neither exaggerated nor inflated. She further claims a sum of Rs. 1,500/- on account of conveyance charges, as, according to her, she had to go hospital very often for treatment. In a case of fracture it is only occasionally that the patient has to go to the doctor. In my view, therefore, she had inflated the conveyance allowance but Rs. 200/- allowed by the Tribunal also does not seem to be appropriate. I would, therefore, allow Rs. 500/- on this account. Having agreed with the appellant that she had to engage a domestic servant for six months at the rate of Rs. 100/- per month there is no reason not to allow her a sum of Rs. 600/- on this account. I order accordingly.

6. The Tribunal while allowing general damages has relied on a case of a simple injury where the Tribunal allowed general damages to the tune of Rs. 4,750/- in the case of a simple injury, which was also approved by this Court. The Tribunal thereafter keeping in view the fact that in this case a grievous injury had been inflicted allowed general damages of Rs. 5,000/-. In my view, the case which has been referred to by the Tribunal for determining the general damages in this case could not be said to be on all fours with the facts of the present case inasmuch as the injuries suffered in the present case are grievous hurt. Indeed, the only guide to determine the damages in such cases are the judicial pronouncements and there is no rule of universal application but the considerations by and large have been indicated in various pronouncements of courts. Ultimately, the determination of general damages depends upon the notions, though fettered by the judicial pronouncements. The ultimate guide for the court in such cases, therefore, essentially and naturally would be the interest of justice and the compensation awarded must always be fair, just and reasonable. Considering the fact that in the case referred to by the Tribunal Rs. 4,750/- were allowed as general damages for a simple injury 1 would enhance the amount of general damages in this case from Rs. 5,000/- to Rs. 10,000/- as this is a case where the claimant suffered a grievous injury which temporarily disabled her for a period of six months. In other words, she had to remand in pain and agony and had to forget about the joys of life for a period of six months. In this way, the total amount to which she would be entitled would be Rs. 13,100/-. The Tribunal, in my view, has further erred in not allowing interest to the claimant from the date of claim till the date of its final realisation. The Tribunal has discretion under the Motor Vehicles Act to grant interest even from the date of application. This discretion is like any other judicial discretion and must be judicially exercised. In other words, while exercising the discretion the facts of each case will assume importance. In exercising the discretion it is necessary to keep in view the amount of resistance put to the claim by the other side. In the present case, I am sure, had the other Bide negotiated with the claimant they could have easily found an agreed solution and the matter would have ended. In this case, therefore, I feel that the appellant is also entitled to interest. It is directed that the appellant shall be entitled to claim interest at the rate of 9% per annum from the date of the application till the final realisation. The appeal is accordingly allowed and the impugned award shall stand modified to the extent indicated above.