Sh. Rakesh Jain vs Sh. Jawahar Lal Sharma & Ors.
2009 Latest Caselaw 1150 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               FAO No. 368/2001

                         Judgment reserved on: 21.02.2009

%                        Judgment delivered on: 6.4.2009


Sh. Rakesh Jain                         ...... Appellant
                         Through: Mr. Nitinjaya Chaudhary, Adv.

                  versus


Sh. Jawahar Lal Sharma & Ors.      ..... Respondent
                    Through: Mr. Kanwal Chaudhary, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.        Whether the Reporters of local papers may                   No
          be allowed to see the judgment?

2.        To be referred to Reporter or not?                          No

3.        Whether the judgment should be reported                     No
          in the Digest?


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award of compensation

passed by the Learned Motor Accident Claim Tribunal on 25th January

2001 for enhancement of compensation. The learned Tribunal awarded

a total amount of Rs. 2,89,000/- with an interest @ 9% PA for the

injuries caused to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

On 1 April 1995, the injured appellant Mr. Rakesh Kumar was going

from Faridabad to Sadar Bazar on his two wheeler scooter bearing

registration No. HR 29D 9680 via Ashoka Road. At about 1:40 P.M.

when the appellant reached on the round about of Jantar Mantar Road,

a bus bearing registration No. UP 65 E 5966 being driven at a very high

speed came and hit the scooter from the rear. The right leg of the

appellant came under the wheel of the offending bus and

consequently, the appellant suffered multiple fractures in his left leg.

He was removed to a hospital and was admitted there for 2 months. A

claim petition was filed on 3rd July 1995 and an award was made on

25th January 2001. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

3. Sh. Nitinjaya Chaudhary counsel for the appellant claimant claims

enhancement through this appeal. The counsel 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

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

awarding a sum of Rs. 39,000/- towards loss of income and it is urged

that the same should have been assessed at Rs. 50,000/-. The Tribunal

awarded a sum of Rs. 50,000/- towards mental pain & suffering but the

appellant showed his discontentment to that as well and averred that it

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

sought compensation as per the criteria provided under IInd Schedule.

Amount towards loss of amenities for life is also claimed by the

appellant's counsel stating that Rs. 1,00,000 would be just and

reasonable compensation under this head. Further the counsel pleaded

that the counsel erred in awarding an interest of 15% pa instead of 9%

pa.

4. Per contra, Sh. Kanwal Chaudhry counsel for the Respondent

insurance company urged that there is no error committed by the

learned Tribunal in passing the award and the appeal is devoid of any

merits as no ground is made out for enhancement under any of the

heads. In furtherance of his argument, the counsel for the respondent

Insurance Company has urged that the Appellant miserably failed to

prove on record as to how and in what manner on account of

permanent disability to an extent of 25% there was reduction in his

earning capacity. Further he stated that the amount awarded towards

the head of loss of earning and Pain and suffering, which was

1,25,000/- and 50,000/- respectively is adequate and requires no

interfearance. The award of interest at 9% PA on the total

compensation is also stated to be justified on the basis of the judgment

of Kaushnuma Begum and Ors. Vs. New India Assurance Co. Ltd. 2001

(1) A.D. (SC) 5.

5. I have heard the counsel for the parties and perused the award.

6. In 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 had 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. 60,000/- for

expenses towards medicines; Rs. 10,000/- for conveyance expenses;

Rs. 5,000/- for keeping medical attendants; Rs. 50,000/- for mental

pain and sufferings, loss of amenities and inconvenience, frustration

etc.; Rs. 1,25,000/- on account of permanent disability to the extent of

25% and loss of earning capacity and Rs. 39,000/- on account of loss of

earnings.

8. As regards the compensation towards permanent disability and

future loss of income, I feel that the tribunal erred in awarding the

same at Rs. 1,25,000/-. The tribunal after considering Ex PW3/C held

that the appellant suffered 25% permanent disability and awarded

compensation confined towards permanent disability and future loss of

income and thus the same requires interference. It has come on record

that the appellant was of 23 years of age. The appellant also deposed

that on the date of his deposition he was earning an amount of Rs.

7,000/- p.m. I feel that Rs, 3,57,000/- (7000 x 17 x 12 x 25/100) would

be the appropriate amount towards permanent disablement of the

appellant and towards future loss of income and earning capacity.

9. As regards loss of amenities and mental pain & suffering, the

tribunal has awarded Rs. 50,000/- to the appellant. The appellant

sustained multiple fractures in his left leg, his right ankle was crushed

under the wheels of the offending vehicle and he also sustained

abrasions on his left elbow, forehead and on the other parts of the

body. It has also been proved on record that the appellant remained

admitted in the hospital from 1/4/1995 to 31/5/1995, meaning thereby

that he was hospitalized for 2 months. Further, Ex PW3/C shows that

the appellant suffered 25% permanent disability. Compensation for

loss of amenities of life compensates victim for the limitation, which

result from the defendant's negligence, on the injured person's ability

to participate in and derive pleasure from the normal activities of daily

life, and the individual's inability to pursue his talents, recreational

interests, hobbies or avocations. The appellant stated that because of

injury there is stiffness in his right leg and he cannot do individual

practice due to loss of confidence and disability. The appellant also

deposed that he failed to appear in his LLB IInd year examination due

to the accident and could complete his LLB exam in the year 1997. He

further deposed that due to injuries he could not walk or stand for

more than 35 to 40 minutes and even could not drive two wheeler

scooter or any other vehicle. Due to these infirmities he lost

confidence to join legal profession. I feel that the tribunal erred in

awarding Rs. 50,000/- towards loss of amenities and mental pain &

suffering. I feel that the same should be enhanced to Rs. 75,000/-.

10. As regards loss of earnings, the appellant had produced on record

the income tax acknowledgment slip of the year 1993-1994 according

to which the income of the appellant was Rs. 16,667/-; in the year

1994-1995 it was Rs. 36,644 and in the year 1994-1995 it was Rs.

40,701/-. The tribunal assessed notional income of the appellant at Rs.

3250 pm and awarded Rs. 39,000/- towards loss of income for one

year, the period during which the appellant could not work. The

appellant could only prove that he was hospitalised for 2 months.

Although, nothing had come on record to prove that the appellant

could not work for a year but still the tribunal assessed loss of income

for the entire year. Since, the tribunal has already been quite

generous, I feel that no interference is required in the award in this

regard.

11. 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 15% 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.

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

enhanced to Rs. 5,46,000/- from Rs. 2,89,000/- along with interest @

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

institution of the petition in this Court till realisation of the

compensation amount and the same should be paid to the appellant by

the respondents.

13. With the above directions, the present appeal is disposed of.

6.4.2009                                 KAILASH GAMBHIR, J.