Bhirbhan vs Shiv Narain & Ors.
2009 Latest Caselaw 1166 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        FAO No. 827/2003

                         Judgment reserved on: 19.03.2008
%                        Judgment delivered on: 6.4.2009


Bhirbhan                                         ...... Appellant
                         Through: Mr. J. S. Kanwar, Advocate.

                   versus

Shiv Narain & Ors.
                                             ..... Respondents
                         Through: Mr. S. S. Panwar, Advocate for
                                  Respondent No.4.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

2.    To be referred to Reporter or not?                                No

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


KAILASH GAMBHIR, J.

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

passed by the Learned Motor Accident Claim Tribunal on 01.9.2003 for

enhancement of compensation. The learned Tribunal awarded

compensation of Rs.26,000/- (50% of Rs.52,000/- deducted on account

of contributory negligence on the part of appellant) alongwith an

interest @ 6% PA for the injuries caused to the claimant appellant in

the motor accident.

2. The brief conspectus of facts is as under:

3. On 14.5.1996, at about 5:30PM, appellant was sitting on the

driver seat in the bus bearing registration no. DL-1P-8665 by keeping

his leg outside the window of driver seat and was talking to some

driver. The appellant's bus was standing on the bus stop and bus

bearing registration no. DL-1P-6605 came in a rash and negligent

manner from side of Novelty Cinema and hit the bus in which appellant

was sitting near the front driver door side of the bus, as a result of

which, the right leg of the appellant was crushed and he fell down.

4. A claim petition was filed on 10.4.97 and an award was made on

1.9.2003. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Sh. J.S. Kanwar, counsel for the appellant claimant 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 holding that there was 50% contributory negligence on the

part of the appellant. It is also submitted that Ld. Tribunal erred in

awarding only Rs.5000/- towards pain and suffering. The counsel

further stated that Ld. Tribunal erred in not awarding any

compensation towards loss of amenities and other non-pecuniary

losses. The counsel submitted that appellant was a driver by

profession and he was earning Rs.3660/-per month . Due to the

accident, he suffered 10% disability because of which he was unable to

drive vehicle and was removed from his service also. The counsel

pleaded that in this case, the loss of earning capacity should have

been taken as 100% considering the nature of job, the appellant was

doing at the time of accident. It is also submitted that Ld. Tribunal has

not considered the future prospects and advancement in life of

appellant. Further the counsel pleaded that the counsel erred in

awarding an interest of 6% p.a instead of 9% p.a.

6. Per contra Sh. S.S. Panwar counsel for the respondent no. 4

contended that the award passed by the Ld. Tribunal is just and fair

and does not require interference by this court.

7. I have heard counsel for the parties and perused the record.

8. 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

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."

9. In the instant case the tribunal awarded Rs. 32,500/- for expenses

towards medicines; Rs.500/- for conveyance expenses; Rs.5000/- for

mental pain and sufferings; Rs.10,000/- on account of permanent

partial disability and Rs. 4000/- on account of loss of earnings.

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

5,000/- to the appellant after considering Schedule II to the MV Act. On

perusal of the award, it is manifest that the as per the MLC the

appellant sustained fracture of femur and remained in LNJP Hospital for

one month. Medical record of Dua Nursing Home dated 25/7/1996 to

30/11/1996, 27/11/2000 and 24/6/2003 proves that the appellant took

treatment there for plating of right femur as an outdoor patient and

stayed there only for three days. Considering the kind of injuries

sustained by the appellant and also considering that no revision in the

Second Schedule has taken place after the same was introduced in the

year 1994 although under Section 163(3), the Central Government is

required to amend the Second Schedule keeping in view the cost of

living by appropriate notification in the Official Gazette from time to

time. I feel that the compensation in this regard should be enhanced to

Rs. 15,000/-.

11. As regards the compensation towards permanent disability, I feel

that the tribunal has erred in not awarding the same according to the

settled principles of law. The income of the appellant was duly proved

at Rs. 3,600/- pm as per the salary certificate issued by appellant's

employer, Ex. PW3/46. Nothing has come on record to prove the future

prospects of the appellant and therefore, the future prospects of the

appellant cannot be considered. The age of the appellant at the time of

the accident was 35 years and the 10% disability of the appellant was

duly proved on record as Ex. Pw3/4. As per second schedule the

multiplier prescribed at the age of 35 is 17, therefore, after

considering all these factors, the compensation towards disability is

awarded at Rs. 73,440/- (3,600 x 12x 10/100 x 17) to the appellant.

12. As regards loss of amenities, resulting from the defendant's

negligence, which affects 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. I feel that the tribunal erred in not awarding the

same and in the circumstances of the case same is allowed to the

extent of Rs. 10,000/-.

13. As regards loss of earnings, the income of the appellant was duly

proved at Rs. 3,600/- pm as per the salary certificate issued by

appellant's employer, Ex. PW3/46. On perusal of the award, it is

manifest that the as per the MLC the appellant sustained fracture of

femur and remained in LNJP Hospital for one month. Medical record of

Dua Nursing Home dated 25/7/1996 to 30/11/1996, 27/11/2000 and

24/6/2003 proves that the appellant took treatment there for plating of

right femur as an outdoor patient and stayed there for three days. The

tribunal assessed income of the appellant at Rs. 4,000/- pm by taking a

round figure and awarded Rs. 4,000/- towards loss of income for 1

month, the period during which the appellant could not work. I do not

feel that the tribunal committed any error in this regard and hence, the

award is not interfered with in this regard and compensation towards

loss of income is taken at Rs. 4,000/-.

14. As regards the issue of interest that the rate of interest of 6% p.a.

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

enhanced to 9% p.a., I feel that the rate of interest awarded by the

tribunal is on the lower side and fair and requires 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, 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 @ 6% pa by the tribunal and the same is

not interfered with.

15. In view of the discussion made here in above, Rs. 32,500/- is

awarded for expenses towards medicines; Rs.500/- for conveyance

expenses; Rs.15000/- for mental pain and sufferings; Rs.10,000/- for

loss of amenities of life; Rs. 73,440/- on account of permanent partial

disability and Rs. 4000/- on account of loss of earnings. Thus the total

compensation comes to Rs.1,35,440/-

16. As regards the issue of contributory negligence of the deceased, I

feel that the tribunal committed no error. The omission to do what the

law obligates or even the failure to do anything in a manner, mode or

method envisaged by law would equally and per se constitute

negligence on the part of such person. If the answer is in the

affirmative, it is a negligent act. Where an accident is due to

negligence of both parties, substantially there would be contributory

negligence and both would be blamed. In a case of contributory

negligence, the crucial question on which liability depends would be

whether either party could, by exercise of reasonable care, have

avoided the consequence of the other's negligence. Whichever party

could have avoided the consequence of the other's negligence would

be liable for the accident. If a person's negligent act or omission was

the proximate and immediate cause of death, the fact that the person

suffering injury was himself negligent and also contributed to the

accident or other circumstances by which the injury was caused would

not afford a defence to the other. Contributory negligence is applicable

solely to the conduct of a plaintiff. It means that there has been an act

or omission on the part of the plaintiff which has materially contributed

to the damage, the act or omission being of such a nature that it may

properly be described as negligence, although negligence is not given

its usual meaning. It is now well settled that in the case of contributory

negligence, courts have the power to apportion the loss between the

parties as seems just and equitable. Apportionment in that context

means that damage is reduced to such an extent as the court thinks

just and equitable having regard to the claim shared in the

responsibility for the damage. It is the case of the appellant himself

that he was sitting on the driver seat in the bus bearing registration no.

DL-1P-8665 by keeping his leg outside the window of driver seat and

was talking to some driver. The appellant's bus was standing on the

bus stop and bus bearing registration no. DL-1P-6605 came in a rash

and negligent manner from side of Novelty Cinema and hit the bus in

which appellant was sitting near the front driver door side of the bus,

as a result of which, the right leg of the appellant was crushed and he

fell down. Clearly, in the first place the appellant should not have sat in

such a manner so as to invite problem for himself. He should have

been cautious as it is written inside of all the buses and it is taught

even to each and every child by their parents that one should keep

their body inside the bus, not even a finger should be put outside a

window as the same may cause some accident. The appellant himself

being a driver did not abide by the said rule and moral teaching of the

elders and resultantly, met with an accident.

17. From the above discussion, it is manifest that no doubt mainly

the bus driver of the bus bearing registration no. DL-1P-6605 was

negligent but the appellant also contributed to the said accident which

led to the injuries sustained by him in the accident. Thus, clearly the

appellant was 50% liable for negligence and I do not find any infirmity

as regards the tribunal imputing liability on the injured. Therefore, no

interference is made in the award on this count. Hence, after making

50% deduction towards contributory negligence of the appellant, the

total compensation comes to Rs. 67,720/-

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

enhanced to Rs. 67,720/-from Rs. 26,000/- along with interest @ 7.5%

per annum from the date of institution of the present petition till

realisation of the award and the same should be paid to the appellant

by the respondent no. 4.

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

6.4.2009                                    KAILASH GAMBHIR, J