Sh. Jagram @ N.D. Tiwari vs Sh. Ramesh Chander & Anr.
2009 Latest Caselaw 1167 Del

           * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            FAO No. 210/1999

%                       Judgment reserved on: 27.03.2008
                        Judgment delivered on: 6.4.2009


Sh. Jagram @ N.D. Tiwari                       ...... Appellant
                    Through: Mr. Ashok Popli, Adv.

versus


Sh. Ramesh Chander & Anr.               ..... Respondents
                   Through: Mr. J.N. Aggarwal

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 11.1.1999 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 17,000/- with an interest @ 12% PA for the injuries

caused to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

On 5.7.1986 at about 1:35 pm the petitioner along with his

two sisters was going on a cycle rickshaw. When he reached near

Durgapuri Chowk, Loni Road, a bus bearing registration no. DHP 3511,

which was being driven in a rash or negligent manner by respondent

no. 1, hit the rickshaw. As a result, the petitioner and his two sisters

fell on the road and sustained injuries. The petitioner received serious

multiple fractures on his person.

3. A claim petition was filed on 5.1.1987 and an award was

made on 11.1.1999. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

4. 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 Learned

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

meager sum towards medical expenses. He claimed an amount of Rs.

20,000/- towards the medical treatment and expenses. Enhancement

is also claimed on the ground that a meager amount is awarded

towards conveyance and the tribunal erred in not considering that the

appellant visited hospital for quiet some time as an out-patient. The

Tribunal awarded a sum of Rs. 2,000/- towards mental pain & suffering

but the counsel shows his discontent to that as well and averred that it

should have been Rs. 50,000/-. For permanent disablement also he

sought enhancement from Rs. 10,000/- on the ground that he suffered

multiple injuries and compound fracture. Further the counsel urged

that the counsel erred in awarding an interest of 12% pa for a period

from 5/1/1987 to 15/1/1987 and from 25/5/1996 till final realization

and no compensation has been awarded for the intervening period.

5. Per contra Mr. J.N. Aggarwal counsel for the respondent

refuted the contentions of counsel for the appellant and submitted that

the tribunal has already been quite generous and awarded

compensation even in the absence of any documentary proof

regarding the medical expenses; extent of disability etc. therefore, the

award should not be interfered by this court.

6. I have heard the counsel for the parties and perused the

award.

7. 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 and fatal accidents 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."

8. In the instant case the tribunal awarded Rs. 5,000/- for

expenses towards medicines and for conveyance expenses; Rs. 2,000/-

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

permanent disability.

9. On perusal of the award, it is manifest that the appellant did

not place any medical bill on record to prove the expenses incurred by

him towards the treatment. Dr. Mathew Varghese deposed as PW4 and

stated that the treatment at the hospital was free. As regards medical

expenses, the tribunal took cognizance of the fact that the treatment

at the hospital was free and thus denied compensation towards

medical treatment. But considering the fact that the appellant's arm

was fractured and was plastered for about three months and must

have spent some amount on medicines and also considering the fact

that the appellant must have visited hospital for some time for proper

recovery. I feel that award of Rs. 5000/- in this count is on the lower

side and should be enhanced from Rs. 5,000/- to Rs. 10,000/-.

10 . As regards special diet expenses, Dr. Mathew Varghese

deposed as PW4 that special diet was not recommended to the

appellant. Also, the appellant admitted that special diet was not

recommended to him by the doctor. Considering this, the tribunal did

not award any compensation 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. 2,000/- to the appellant. The appellant's arm was

fractured and was plastered for about three months and Dr. Mathew

Varghese deposed as PW4 that the appellant received partial

impairment in his right elbow. In such circumstance, I feel that the

compensation towards mental pain & suffering should be enhanced to

Rs. 15,000/-.

12 . As regards the compensation towards permanent disability,

the tribunal has awarded Rs. 10,000/- to the appellant. Although,

nothing has come on record to prove the extent of disability but

considering that Dr. Mathew Varghese deposed as PW4 that the

appellant received partial impairment in his right elbow. The doctor

although could not tell the percentage of disability but he did state that

the appellant would find some difficulty in working with the right arm

due to partial impairment. I feel that the compensation in this regard

should be enhanced to Rs. 20,000/-.

13 . As regards compensation for loss of amenities of life,

resulting from the defendant's negligence, on the injured person's

ability to participate in and derive pleasure from the normal activities

of daily life, or the individual's inability to pursue his talents,

recreational interests, hobbies or avocations. In essence,

compensation for loss of expectation of life compensates an individual

for loss of life and loss of the pleasures of living. Considering that Dr.

Mathew Varghese stated that the appellant would find some difficulty

in working with the right arm due to partial impairment, I feel that the

tribunal erred in not awarding the Compensation for loss of amenities

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

Rs. 15,000/-.

14 . As regards the issue of interest that the tribunal erred in

awarding rate of interest to the appellants from 5/1/1987 to 15/1/1987

and from 25/5/1996 till final realisation instead of awarding the same

from the date of institution of the petition till realisation, I feel that it

does not require any interference. The tribunal observed that the

appellant did file the petition on 5/1/1987; the issues were framed on

16/7/1987 and the evidence was closed on 24/5/1996, therefore, it is

manifest that the appellant took a long time, about 9 years, to

conclude his evidence. Nobody canbe allowed to take benefit of it's

own wrong. The Tribunal is fully justified in granting the interest in

above said manner and, therefore, no interference is warranted.

15. Therefore, Rs. 10,000/- is awarded towards medical

expenses and conveyance expenses; Rs. 15,000/- towards mental pain

& suffering; Rs. 20,000/- towards permanent disability and Rs. 15,000/-

towards loss of amenities of life.

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

enhanced to Rs. 60,000/- from Rs. 17,000/- along with interest @ 7.5%

per annum on the enhanced compensation 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 respondents.

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

6.4.2009                                     KAILASH GAMBHIR, J.