Delhi High Court

Smt.Ramwati vs Sh.Rajinder Singh & Ors. on 29 September, 2008

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

                     FAO. No.267/1999

%            Judgment reserved on: 16th September, 2008

             Judgment delivered on: 29th September, 2008


Smt. Ramwati W/o. Sh. Samai Singh
R/o. C-3/109, Yamuna Vihar, Delhi-53.
                                          ....Appellant

                   Through: Mr. J.S. Kanwar, Adv.

                            Versus

1. Sh. Rajinder Singh S/o. Sh. Vijay Singh (Driver)
   R/o. Village, Hajipur Behta, P.S. Loni Distt.
   Ghaziabad (U.P.)

2. Sh. Suresh Pradhan S/o. Sh. Vijay Singh (Owner)
   R/o. Village Hajipur Behta, P.S. Loni Distt.
   Ghaziabad (U.P.).

3. That New India Assurance Co. Ltd.
   E,O202, Connaught Place, Connaught House,
   New Delhi.                        .... Respondents.

                   Through: None.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported

FAO. No.267/1999                                Page 1 of 13
      in the Digest?                              Yes

V.B.Gupta, J.

Appellant, who is an injured, has filed present

appeal under Section 173 of Motor Vehicles Act, 1988

(for short as „Act‟) seeking enhancement of the award

amount passed in this case.

2. Brief facts of this case are that on 14th August,

1989, at about 10.45 p.m., appellant along with one

Smt. Savita and her husband Madan Lal were

returning from G.T.B. Hospital, Shahdara, to their

house by threewheelar scooter No. DBR-1876.

3. When they reached at 100 ft. road, Durga Puri,

Loni Road crossing, they were hit by a jeep No. DNA-

6677, which was being driven rashly and negligently at

a very high speed by respondent No.1.

4. The offending vehicle came from the side of Loni

Road, Rathi Mill and struck their threewheeler scooter

from left side. Due to the impact, the threewheeler

overturned and the appellant received injuries in this

accident.

5. The offending vehicle is owned by respondent

No.2 and insured with respondent No.3.

6. The appellant filed a claim petition claiming

compensation amounting Rs.3 lacs against the

respondents.

7. Respondents No.1 and 2 filed their written

statement in the trial court but later on they absented

and, thus, were proceeded ex-parte and the claim

petition was finally contested by respondent

No.3/Insurance Company.

8. Respondents No.1 and 2, in their written

statement have denied the factum of accident and the

manner in which the accident has taken place. Their

defence is that the driver of threewheeler scooter has

lost control over the vehicle and due to mistake and

rash and negligent driving of the threewheeler scooter,

appellant and her companion received injuries. The

offending vehicle driven by respondent No.1 never

touched the threewheeler scooter nor it struck against

it.

9. Respondent No.3/Insurance Company in its

written statement has admitted that the vehicle in

question No.DNA-6677 was insured with it at the time

of accident and unless and until it is proved that the

driver of the offending vehicle was holding a valid

driving licence, the Insurance Company is not liable to

pay any compensation.

10. Vide           judgment   dated    25th    February,      1999

passed      by       Sh.S. L. Bhayana, J. (the      then    Judge,

MACT),             an    award        in      the    sum           of

Rs.85,140/- along with interest @ 12% p.a. from 5th

February, 1990 to 27th September, 1993 and from 28th

July, 1988 till realization, was passed in favour of the

appellant and against the respondents.

11. Being aggrieved with the inadequacy of the award

amount, the appellant has filed the present appeal.

12. Notice of this appeal was issued to all the

respondents.

13. All the respondents were duly served for 18th

February, 2008 but there was no appearance on behalf

of respondents at that date. On that date, trial court

record was ordered to be requisitioned and the matter

was listed for 30th April, 2008. After receiving trial

court record, the matter was listed before this Court.

14. On 16th September, 2008 when the matter was

listed for hearing, none appeared on behalf of

respondents.

15. Since, none was appearing on behalf of

respondents for last so many dates, arguments

advance by learned counsel for the appellant have

been heard.

16. It has been contended by learned counsel for the

appellant that appellant has spent Rs.50,000/- for

purchase of medicines and treatment as well as special

diet, but no amount on this account has been awarded.

17. The next contention raised by learned counsel for

the appellant is that no amount on account of pain,

suffering and for loss of amenities, have been awarded

and the Tribunal has wrongly deducted interest for the

period 28th September, 1993 to 27th July, 1998, though

there is no delay on the part of the appellant.

18. 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 non-pecuniary damages.

19. Pecuniary damages are those which the victim

has actually incurred and which is capable of being

calculated in terms of money. Pecuniary damages are

easy to determine as a Tribunal would have some

empirical data before it.

20. Pecuniary damages includes the following:

(i) Special damages or pre-trial pecuniary loss.

(ii) Prospective loss of earnings and profits.

(iii) Medicinal expenses.

(iv) Cost of future care and other expenses.

21. As regards to the contention of medical expenses

and special diet, the appellant as PW1 deposed that

she sustained fracture on her both hips joints and was

advised for operation. She had to go on crutches for

about three months. She sustained permanent injuries

and still cannot walk and work properly.

22. In this regard, she produced the photocopy of the

permanent disability certificate Ex. PW1/A.

23. The disability certificate Ex. PW1/A shows that,

the appellant received permanent partial disability to

the tune of 60% in relation to both lower limbs.

24. In her cross examination, she has stated that she

does not have any bills towards expenses which she

had incurred as she has not preserved them.

25. The Tribunal in this regard held that;

"I have gone through the evidence of PW1 Smt. Ram Wati and she has stated before the court that she received fracture on both hip joints. She received permanent disability to the tune of 60% in relation to both lower limbs as is clear from the disability certificate Ex.PW1/A. She has further stated before the court that she spent about Rs.50,000/- on

her treatment, conveyance etc. but she has failed to place on record any medical bill to substantiate her claim. Further she has admitted that she received the medical treatment from GTB Hospital and Wellington hospital. Both these hospitals are government hospitals and they did not charge anything from the patient for getting treatment from the hospital so the contention of the Ld. Counsel for the petitioner that she has spent about Rs.50,000/- on the treatment is without any basis."

26. It is not expected that an injured should

meticulously retain all the bills pertaining to his

medical treatment, special diet and conveyance etc.

Since, the injured suffered crush injury and permanent

disability and also remained admitted in Hospital,

there is strong presumption that she must have taken

special diet such as fruits, juices, milk etc. and must

have spent some amount on her conveyance for visiting

Hospital or Doctors.

27. Thus, keeping in view of the nature of injuries

suffered by appellant, a sum of Rs.25,000/- for medical

treatment, conveyance and special diet etc. is awarded

to the appellant.

28. Now, coming to the question with regard to

compensation on account of pain and suffering etc.,

like pecuniary damages, non-pecuniary damages are

incapable of being assessed by arithmetical

calculations.

29. Non-pecuniary damages includes the following:

(i) Pain and suffering.

(ii) Damages for mental and physical shock.

(iii) Loss of amenities of life which may include a variety of matters i.e. on account of injury the injured may not be able to walk, run or sit etc.

(iv) Loss of expectation of life i.e. on account of injury normal longevity of the life of the person concerned is shortened.

(v) Disfigurement.

(vi) Discomfort or inconvenience, hardship, disappointment, frustration and mental stress in life.

30. Compensation payable on account of pain and

sufferings compensates victim for the physical and

mental discomfort caused by the injuries. Pain is

physical; suffering is emotional. While pain is the

physiological response to certain stimuli, suffering is

psychological or emotional response to pain.

31. The Apex Court in R.O. Hattangadi v. Pest

Control (India) Pvt. Ltd., AIR 1995 SC 755, has

laid down the broad principles as under;

"Broadly speaking, while fixing the 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."

32. Thus, keeping in view of the above principles of

law, the appellant is awarded compensation of

Rs.25,000/- on account of pain and sufferings etc.

33. As regards to non-granting of interest for certain

period, the Tribunal in the impugned Judgment has

held that;

"The issues in this case were framed on 28.9.93 while the petitioner examined herself only on 3.6.98 and her examination-in-chief was deferred as she had not brought the original documents and her examination and cross-examination was concluded on 27.7.98. She took large number of dates to examine herself and no other witness was examined except the petitioner herself. All the adjournments are unjustified and the petitioner will not get any interest from 28.9.93 to 27.7.98. However, the

petitioner will get interest from the date of filing of the petition i.e. from 5.2.90 to 27.9.93 and from 28.7.98 till realization."

34. It is clear from the facts of the case that, the

appellant took five years to examine only one witness.

Thus, the Tribunal rightly did not award any interest

from 28.9.93 to 27.7.98.

35. In view of the above discussion, the award given

by the Tribunal is modified to the extent that appellant

is entitled to enhanced compensation as under:

1. Compensation for medical expenses and special diet etc. Rs. 25,000/-

2. Compensation on account of pain and Sufferings etc. Rs.25,000/-