Sh. Naveen Kumar Gupta vs Sh. Nand Gopal Rai & Ors.
2009 Latest Caselaw 1148 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No.133/2002

                      Judgment reserved on: 07.01.2008

%                     Judgment delivered on:06.04.2009


Sh. Naveen Kumar Gupta                      ...... Appellant
                   Through: Mr. Y.R. Sharma, Adv.

                versus


Sh. Nand Gopal Rai & Ors.                        ..... Respondent
                    Through: Nemo

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

2.   To be referred to Reporter or not?                             Yes

3.   Whether the judgment should be reported                        Yes
     in the Digest?


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award passed by the

Learned Motor Accident Claim Tribunal. The learned Tribunal awarded

a total amount of Rs. 1,26,000/- with an interest @ 9% PA for the

injuries caused to the claimant appellant in the motor accident. Feeling

not satisfied with the quantum of compensation the appellant

preferred this appeal.

2. The brief conspectus of facts is as under:

Appellant claimant Sh. Naveen Kumar Gupta, aged about 20 yrs

at the time of the accident was working on service cum commission

basis with M/s Singal's Dairy & M/s Madho Pershad Sanjay Aggarwal.

On 7th September 1990, the appellant claimant along with his friend

Sh. Hemant Kumar was coming from Kotla Mubarakpur near South

Extension and was proceeding to Sarojini Nagar Market in his Maruti

Car bearing license plate No. DDC-2570. On reaching Laxmi Bai Nagar,

on Brigadier Hoshiar Singh Marg, a car bearing license plate No. 77CD-

23, driven by Nand Gopal Raj came towards the appellant's car at a

very fast speed from opposite side. The accident took place when the

offending vehicle was trying to overtake a truck moving ahead and

crossed the yellow traffic light signal causing head on collision with the

car of the appellant. The maruti car was thrown on the footpath by

such a forceful impact. The impact was so grave that the appellant

sustained multiple fracture of right lower leg, two upper teeth of the

appellant were broken and he also sustained subluxation of survical

bones. He also sustained various cuts and lacerated wounds on whole

of the body. He was removed to AIIMS from the place of accident

where he remained admitted for two months. He further continued to

take follow-up treatment for around 8 months.

3. The appellant claimant claims enhancement through this appeal.

The counsel for the appellant urged that the award passed by the

learned Tribunal is inadequate and insufficient looking at the

circumstances of the case. He assailed the said judgment of the

Learned Tribunal firstly, on the ground that the tribunal erred in

assessing the income of the appellant at Rs. 2,000/- PM and he raised

the said contention on the basis of the oral evidence of the appellant

himself and PW6, stating that the same should have been Rs. 5,000/-.

Based on this, it is further contended that the loss of income should

also be enhanced, accordingly. The Counsel also expressed his

discontent ment on the amount of compensation granted towards

medical expenses. He contended that an amount of Rs. 1,00,000

towards the medical treatment and expenses should have been

awarded by the tribunal. The claimant appellant is not able to produce

medical bills to claim the stated amount, but he contended that looking

at the facts and circumstance of the case and considering that the

claimant was treated by three surgeons separately, the learned

Tribunal should have considered while awarding that amount.

Enhancement is also claimed on the ground that only a sum of Rs.

7,000/- is awarded towards conveyance instead of the claim of Rs.

24,000/- to 25,000/-. Amount towards the special diet is also sought to

be enhanced from Rs. 5,000 to 24,000/-. The Tribunal awarded a sum

of Rs. 30,000/- towards mental pain & suffering but the counsel

showed his discontent to that as well and averred that it should have

been Rs. 1,00,000/-. For permanent disablement also he sought

enhancement from Rs. 20,000/- to Rs. 1,00,000. Amount towards

expenses incurred in repairing the damage to the car is also pleaded

through this appeal. Further the counsel submitted that the counsel

erred in awarding an interest of 9% instead of 18% pm.

4. Nobody has been appearing for the respondents.

5. I have heard the counsel for the appellant and perused the

award.

6. 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 and

fatal accidents 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 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."

7. In the instant case the tribunal has awarded Rs. 20,000/- for

expenses towards medicines; Rs. 5,000/- for special diet; Rs. 7,000/-

for conveyance expenses; Rs. 24,000/- for keeping medical attendants;

Rs. 30,000/- for mental pain and sufferings; Rs. 20,000/- towards

permanent disability and loss of amenities and Rs. 20,000/- on account

of loss of earnings.

8. On perusal of the award, it is manifest that the appellant had

placed on record various bills for purchase of medicines, x-ray charges,

consultation charges, Ex PW10/1 to Ex. PW10/29, which comes to a

total of Rs. 9098/-. The appellant had also placed on record medical

bills, Ex. PW10/31 to Ex. PW10/34, issued by R.D. Memorial Therapy

Clinic for a sum of Rs. 7225/-. As regards medical expenses, the

tribunal took cognizance of the fact that the appellant sustained

serious injuries in his spine and his right femur and thus awarded Rs.

20,000/- even though the appellant could not prove that he had

incurred Rs.20,000/- towards medical expenses. I do not find any

infirmity in the order in this regard and the same is not interfered with.

9. As regards conveyance expenses, the appellant had examined

Sh. Rajinder Kumar, PW-7, who stated that he was a TSR driver of TSR

bearing registration no. DER 8489, which was engaged by the

appellant since 8/9/1990 @ Rs. 100/- per day for two months and

thereafter he took petitioner to the hospital as per meter charges. He

also deposed that he also used to take the family of the appellant to

and fro the hospital when the appellant was admitted in the hospital.

He further stated in his deposition that after two months he took

appellant to and fro the hospital at least 7-8 times @ Rs. 50/-. The

tribunal after taking notice of this fact and in the absence of any

cogent evidence awarded Rs. 7,000/- for conveyance expenses. I do

not find any infirmity in the order in this regard as well and the same is

not interfered with.

10. 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 injuries in his spine and his right

femur thus he must have 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.

11. As regards mental pain & suffering, the tribunal has awarded Rs.

30,000/- to the appellant. The appellant sustained multiple fracture of

right lower leg, his two upper front teeth were broken, he suffered

subluxation of survical bone apart from various cuts and larcerated

wounds on the body. In such circumstance, I feel that the

compensation towards mental pain & suffering should be enhanced to

Rs. 50,000/-.

12. As regards permanent disablement and loss of amenities of life,

the tribunal has awarded Rs. 20,000/-. No disability certificate was

brought on record by the appellant. In the facts of the present case the

same appears to be on the lower side. The appellant sustained multiple

fracture of right lower leg, his two upper front teeth were broken, he

suffered subluxation of survical bone apart from various cuts and

larcerated wounds on the body. His leg has shortened by ½ an inch

and his face is disfigured by scars. I feel that Rs. 50,000/- would serve

the interest of justice and the same is allowed to the appellant as

regards permanent disablement and loss of amenities of life.

13. As regards expenses incurred in repairing the car, the appellant

placed on record report of surveyor, Sh. Bahadur Singh dated

25/11/1991 to the effect that he inspected the maruti car bearing

registration no. DDC 2570 on 21/11/1991 and it was 1987 model and

was transferred on 16/11/1989 and had found the parts of the car

replaced. The appellant had also brought on record the bills Ex.

PW10/38 and PW10/38 issued by Amar Motors worth Rs. 16,377/-; bills

Ex. PW10/40 and PW10/41 issued by Vikas Motors worth Rs. 3,281/- bill

Ex. PW10/44 worth Rs. 504/- and bill Ex. PW10/43 issued by Jindal

Motors worth Rs. 606/-. He also placed the insurance passbook

according to which, the said vehicle was comprehensively insured. The

appellant examined himself as PW10 and deposed that he had spent

Rs. 22,000/- in getting the car road worthy but nothing was brought on

record to show whether the appellant had claimed and received the

amount for making the car roadworthy from the insurer of the

aforesaid maruti car bearing registration no. DDC 2570. Thus, the

tribunal rightly did not allow any compensation in this regard. It is no

more res integra that for arriving at a particular figure on each of the

heads of damages, the claimant is duty-bound to produce relevant

materials, on the basis of which, a determination could be made, as to

what would be the best compensation. In the absence of any cogent

or reliable material on record, I do not wish to award any compensation

in this regard.

14. As regards loss of earnings the appellant had submitted that he

was in the employment of M/s Singhal's Dairy and M/s Madho Pershad

thereby earning Rs. 3900/-pm and Rs. 2500/- pm as salary and Rs.

7100/- as commission at the time of the accident. Proprietor of M/s

Singhal's Dairy PW5 appeared and deposed that the petitioner was

working as a supplier of milk products with them. PW6 Sh. Madho

Pershad deposed that the appellant was working for them on

commission basis from 7:00 am to 11:00 am and was earning Rs.

2,000/- to 2,500/- pm. In the absence of any cogent evidence, the

tribunal assessed the income of the appellant at Rs. 2000 pm and

assessed loss of earnings for 10 months at Rs. 20,000/-. 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

or cogent 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. In the facts of the present case, the tribunal ought to have

assessed the income of the appellant in accordance with the minimum

wages of a semi-skilled workman. The minimum wages on the date of

the accident, were Rs. 891/- per month and thus loss of income would

come to Rs. 8910/- for ten months. On applying the said principle at

this stage, the compensation under this head will dwindle down and

considering the fact that the award has not been challenged by the

respondent. Therefore, in the interest of justice, the award is not

interfered with in this regard and compensation towards loss of income

is taken at Rs. 20,000/- as awarded by the tribunal.

15. As regards the issue of interest that the rate of interest of 9% p.a.

awarded by the tribunal is on the lower side and the same should be

enhanced to 12% 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

be just and fair depending upon the facts and circumstances of the

case and taking in to consideration relevant factors including inflation,

change of economy, 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 @ 9% pa by the tribunal and the same is

not interfered with.

16. Therefore, Rs.20,000/- is awarded towards medical expenses;

Rs.7,000/- towards conveyance expenses; Rs.5,000/- towards special

diet expenses, Rs.50,000/- towards mental pain & sufferings;

Rs.50,000/- towards permanent disability & loss of amenities of life &

Rs.20,000/- towards loss of income.

17. In view of the above discussion, the total compensation is

enhanced to Rs. 1,52,000/- from Rs. 1,26,000/- along with interest @

7.5% per annum on the enhanced compensation from the date of

institution of the petition till realisation of the award and the same

should be paid to the appellant by the respondent insurance company.

18. With the above direction, the present appeal is disposed of.

06.04.2009                                  KAILASH GAMBHIR, J.