Bhagwat Parshad Kesri vs Nafe Singh And Ors.
1996 Latest Caselaw 188 Del

JUDGMENT

J.B. Goel, J.

1. This appeal under Section 110-D of the Motor Vehicles Act is directed against the judgment/award dated 25.10.1983 of Motor Accident Claims Tribunal, Delhi. The appellant is the claimant before the Tribunal. By the impugned judgment/award a sum of Rs. 19,000/- has been awarded to him with direction that if the awarded amount is not paid within 3 months of the making of the award the Insurance Company shall also be liable to pay interest at the rate of 9% per annum from the date of award till realisation.

2. The appellant had made a claim of Rs. 80,000/- for personal injuries. Respondents No. 1, 2 and 3 are the owner, Insurance Company and driver, respectively of Bus No. DEP-2414 whereas respondents No. 4 & 6 are the owner and Insurance Company in respect of another Bus No. DLP 6889 involved in the accident and respondent No. 5 is the Delhi Transport Corporation. Both the buses involved in the accident were under Delhi Transport Corporation operation represented by respondent No. 5. The appellant was travelling in Bus No. DLP-6889 when at about 7.30 p.m. on 5th May, 1980 his bus reached C-Hexagon Road, Bus No. DEP-2414 coming from opposite direction driven by respondent No. 3 Hari Ram driver struck against Bus No. DLP-6889 as a result of which the appellant was injured causing fracture on his right arm. He was removed to Safdarjang Hospital, New Delhi where he remained admitted till 8.5.1980. His arm also remained under plaster for sometime and in due course he filed petition under Section 110-A of the Act claiming compensation amounting to Rs. 80,000/- alleging that the accident was caused due to rash and reckless driving on the part of respondent No. 3-driver of Bus No. DEP-2414. He claimed this compensation alleging that he was aged about 22 years, had suffered permanent disability affecting his working capacity and future career and he had also suffered mental shock, agony and pain.

He has also alleged that he was graduate and was a student of L.L.B. and he could not take examination in Railway Service Commission for which he had got a call letter.

3. Respondents No. 1, 2, 4, 5 and 6 had filed written statements contesting the claim of the appellant stating that they were not liable.

4. In the petition, the petitioner/appellant had not given the details of the amount claimed. However, in replication he specified the claimed amount as under:

1. Rs. 10,000/- on treatment and diet money for restoration of health;

2. Rs. 10,000/- on account of mental agony;

3. Rs. 20,000/- on account of loss of matrimonial prospects;

4. Rs. 40,000/- on account of loss of earnings.

5. The learned Tribunal had framed the following issues:

Whether Shri Bhagwat Parsad Kesri sustained injuries due to rash and negligent driving of Bus No. DEP-2414 on the part of its Driver, namely, Shri Hari Ram-Respondent No. 3 ?

Whether respondent No. 5-Delhi Transport Corporation is not liable to pay any compensation in view of the preliminary objection taken in the written statement ?

To what amount of compensation, if any, is the petitioner entitled and if so, from whom ?

6. Relief.

7. Vide his detailed judgment/Award dated 25.10.1983 the Tribunal held that the accident had occurred due to rash and negligent driving by respondent No. 3, driver of bus No. DEP-2414. On the quantum of damages he assessed the amount of compensation as under:

  1.   Pain, agony and suffering              Rs. 8,000/-
2.   Permanent disability                   Nil.
3.   Loss of studies for 1 year
     in LL.B. (in second year)              Rs. 7,000/-
4.   Conveyance charges                     Rs. 1,200/-
5.   Purchase of Medicines and treatment    Rs. 1,000/-
6.   Special Diet                           Rs. 1,800/-
                                           --------------
                             Total:         Rs. 19,000/-
                                           --------------
 
 

Claim has been decreed against respondents No. 1, 2 & 3. Respondent No. 3 has not appeared and remained ex-parte before the learned Tribunal as well as in this Court.
 

8. No appeal has been filed by the respondents against the award.
 

9. During arguments finding on Issue No. 1 regarding liability on account of negligence on the part of the driver of Bus No. DEP/2414 has not been disputed.
 

Learned Counsel for appellant has contended that the petitioner was a graduate and was a student of LL.B., that due to accident he could not complete his LL.B. studies and also could not appear in a competitive examination to be held by Railway Service Commission on 22.6.1980 as a result of which his prospects of career were badly affected and diminished, that the amount of compensation awarded is inadequate taking into consideration that he had suffered fracture and remained under plaster and confined to bed for about 6 months. He has also contended that the learned Tribunal has not awarded interest from the date of application for no valid reasons whereas normally interest is awarded atleast at the rate of 12% from the date of application to which the appellant is also entitled. He has inter-alia relied on Minu B. Mehta and Anr. v. Bal Krishan Ram Chandra Nayan and Anr. 1977 ACJ 118, Gurdip Singh v. Chauhan Bhupendra Kumar Ujde singh and Anr. 1980 ACJ 184, Mohinder Singh Sohil and Anr. v. Ramesh Kumar and Ors. 1981 ACJ 326, Chameli Wati and Anr. v. Delhi Municipal Corporation and Ors. 1985 ACJ 645 : II (1985) ACC 373, Jyotsna Dey and Ors. v. State of Assam and Ors. 1987 ACJ 172 : I (1987) ACC 173 (SC), Ramesh Chandra v. Randhir Singh and Ors. Sharma v. Balbir Singh and Ors. and R.D. Hottanguddo v. Pest Control India Pvt. Ltd. and Ors.

Whereas learned Counsel for respondents has contended that the case law relied on is not applicable as it is not proved that the petitioner has suffered permanent disability; that the nature of injuries was not such which had disabled him from pursuing his LL.B. course or his employment chances would have been diminished, that there is no evidence that he had incurred any expenditure on medicines or needed special diet. It is contended that the amount awarded cannot be said to be inadequate requiring enhancement and no ground exists to interfere in the award of the Tribunal.

10. Regarding the factors to be taken into consideration for assessing damages/compensation in such cases, the Supreme Court in the case of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd.

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.

In the same case regarding non-pecuniary loss reference has been made to the following passage from Halsbury's Laws of England, 4th Edition, Vol. 12 at page 446, which reads as under:

Non-pecuniary loss the pattern-damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the Courts in the light of previous decisions. Thus, there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.

11. Learned Counsel for appellant has contended that the appellant had suffered permanent disability which has affected his future career. But the Tribunal has held that the appellant has not suffered any permanent disability

12. PW.1 Dr. R.K. Matta, who had examined the appellant when he was taken to Safdarjang Hospital on the evening of 5.5.1980 vide MLC No. 37676 had noticed the following injuries:

(i) Blunt injury right elbow upper arm with pain, tenderness, deformity mobility restricted.

(ii) Multiple abrasions right elbow and forearm.

He has also deposed that the X-ray revealed fracture of shaft and humorous right arm. He has not stated that this injury has caused permanent disability.

13. Appellant appeared as PW.5 and deposed that he remained admitted in Safdarjang Hospital from 5.5.1980 to 8.5.1980; plaster was put on his right arm which remained plastered for a period of six months, he could not write with his right hand and also felt extreme pain in his right hand and also suffered permanent disability, that he spent a sum of Rs. 5,000/- on purchase of medicines and treatment.

14. Except Case Sheet and OPD Slip he has not produced any other evidence about any other treatment or expenditure if any incurred on medicines or otherwise. Even the doctor who had treated him in Safdarjang Hospital has not been examined as a witness. The medical record produced from Safdarjang Hospital shows that after discharge from that Hospital he had visited that hospital 4/5 times and he last visited that Hospital on 29.9.1980. Obviously he did not need any further treatment.

15. Learned Tribunal has given a finding that the appellant has not suffered any permanent disability. There is also no material pointed out to show that he had suffered any disability which may mar his future career.

16. It cannot also be said from the material on record that on account of this accident the appellant is incapacitated for marital life So no compensation could be awarded on that count.

17. The purpose of awarding compensation is not punitive but to compensate for the loss suffered by the victim, the appellant has not brought on record any material to show that for this injury he had to be confined to bed for several months or needed any special medicine or treatment except the plastering of the fractured arm and its follow up which he had got in Safdarjang Hospital and for that he had not alleged or proved that he had incurred any expenditure. Apparently, the fracture got healed up in due course. No doubt that for that purpose his arm had to be kept in plaster causing inconvenience to him. In the absence of any medical evidence or other material like purchase of medicines/bills it cannot also be said that the appellant had to incur any other/extra expenditure for his treatment. The appellant was entitled to recover expenses actually and reasonably incurred as a result of the accident. The learned Tribunal has a warded Rs. 8,000/- on account of pain and suffering; Rs. 1,200/- on account of conveyance for his visits from Allahabad to Safdarjang Hospital, another sum of Rs. 1,800/- for special diet and Rs. 1,000/- towards medicines and treatment.

18. The Supreme Court in the case of R.D. Hattangadi has observed that when compensation is to be awarded for pain and suffering and loss of amenities of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration.

19. From the material on record these amounts cannot be said to be unreasonably low requiring any interference in appeal.

20. Tribunal has further awarded Rs. 7,000/- on account of loss of studies and consequently for loss of one year in his studies and career. On behalf of appellant it was contended that the appellant could not appear in the competitive examination for which he had received call letter for 22.6.1980 from Railway Service Commission. In competitive examinations one is not sure that he will necessarily get through and would have got employment on the basis of that competition. This is a too remote contingency. As held in C.K. Subramania Iyer v. T. Kunhikuttan Nair 1970 ACJ 110 (SC), in assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy. It also cannot be said that the nature of injury is such which has incapacitated him in pursuing of his future career or that he could not complete his LL.B. course. He was not earning any thing at the time of accident. To that extent he has not suffered any loss of income. The compensation of Rs. 7,000/- on this account also cannot be said to be inadequate or low requiring interference.

21. It has been held in Sunil Kumar v. Roshan Lal etc. FAO No. 24-D of 1966 decided by P.N. Khanna, J. on 9.10.1972 that the assessment of general damages for personal suffering, loss of enjoyment of life and the loss of future earnings is never an easy task. Calculation has to be based on some rough and ready assessments. In the matter of assessment of damages, the Appellate Court does not normally interfere with the award made by the Tribunal, unless the said award can be said to be unreasonable on the high or the low side.

A Division Bench of Madras High Court has also held in Gopala Krishnan v. Sankara Narayanan 1969 ACJ 34, that the Appellate Court will be loath to interfere with the quantum of damages awarded by the Tribunal unless there is an error in principle in awarding damages or the amount awarded is so unreasonable as to call for interference.

22. Again a Division Bench of High Court of Punjab in State of Punjab v. Guranwanti AIR 1960 Punjab 490, has also made similar observations as under:

It is essential for the Trial Court to determine the amount of damages and the Appellate Courts generally do not interfere with the amount so awarded unless in determination of this amount the Trial Court has failed to follow any principle on which the said amount is to be fixed.

23. Learned Counsel for the appellant, however, relied on some cases where on their own facts and circumstances compensation has been awarded. Mostly in these cases the injuries caused/suffered are either fatal or of grave nature causing permanent disability and necessitating hospitalisation and treatment for long period and incapacitating from pursuing their career which is not the case here and those cases are not relevant.

24. Lastly, learned Counsel has contended that the interest should have been awarded atleast at the rate of 12% p.a. from the date of filing of the claim petition. No serious contest has been made on behalf of the respondent on this contention except contending that this part of award also calls for no interference.

The learned Tribunal has awarded Rs. 19,000/- and has directed that awarded amount of compensation with costs be paid by respondent No. 2, i.e., the insurer, within 3 months from the date of the award failing which the said Insurance Company shall also be liable to pay interest at the rate of 9% from the date of the award till realisation. Obviously, if award is satisfied within 3 months, he will not be entitled to any interest and if not so satisfied interest will be payable from the date of the award. In my view the learned Tribunal has erred on this aspect. No reasons have been given for depriving the appellant interest from the date of institution of claim.

25. In Chameli Wati and Anr. v. Delhi Municipal Corporation and Ors. 1985 ACJ 645 : II (1985) ACC 373 (SC), Jyotsna Dey and Ors. v. State of Assam and Ors. 1987 ACJ 172 : I (1987) ACC 173 (SC); Jagbir Singh and Ors. v. General Manager, Punjab Roadways and Ors. 1987 ACJ 15 (SC) and Hardev Kaur and Ors. v. Rajasthan State Road Transport Corporation and Anr. Supreme Court has awarded interest at the rate of 12% per annum from the date of institution of claim petition. When the claim of the appellant has been allowed there is no valid reason to deny the benefit of interest from the date of application for compensation was made. The appellant is entitled to interest @ 12% per annum on the amount awarded from the date claim was made before the Tribunal till realisation.

26. In the result, this appeal is partly allowed. Besides amount of Rs. 19,000/- and costs awarded by the Tribunal the appellant-petitioner shall also be entitled to recover interest at the rate of 12% per annum from the date of filing of the claim petition till realisation. In the circumstances, parties are left to bear their own costs.