Amrit Pal Singh vs Baldev Singh & Ors.
2009 Latest Caselaw 1168 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No. 498/99

                           Judgment reserved on: 1.4.2008
%                          Judgment delivered on: 06.04.2009

Amrit Pal Singh                                 ...... Appellant
                           Through: Mr. O. P. Goyal, Advocate.

                      versus


Baldev Singh & Ors.                            ..... Respondents
                           Through: Mr. J.N. Aggarwal for DTC.
                                    Mr. Pradeep Gaur for Respondent
                                    No.7


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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
       in the Digest?                                              Yes


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award of

compensation passed by the Learned Motor Accident Claim Tribunal

on 6.8.99 for enhancement of compensation. The learned Tribunal

awarded a total amount of Rs.77,000/-(50% of Rs.1,54,000/-

deducted on account of contributory negligence on the part of

appellant) 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 16.9.88, appellant Amrit Pal Singh was travelling in a bus

bearing registration no. DEP-7080 being driven by R1, Baldev Singh,

on which R2, Rohtas Singh was helper/conductor. When the bus

reached the stop at Ramesh Nagar number of passengers got down

but when appellant reached near the front gate, the bus started

moving. The appellant informed the Conductor/R-2 that he was to

get down at Ramesh Nagar. Conductor asked the driver to stop the

bus to enable the appellant to get down. When appellant was in the

process of getting down the bus, Respondent no.1 accelerated the

speed of the bus all of a sudden and the bus moved with a jerk. As

a result, appellant as well as helper/conductor Rohtas Singh fell out

of the bus. Even thereafter, R1 did not stop the bus and appellant

was dragged to some distance and the rear wheel of the bus ran

over the thigh of the appellant.

3. A claim petition was filed on 16.3.89 and an award was

passed on 6.8.99. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

4. Sh. O.P. Goyal, 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 the appellant as well as driver of the

offending bus equally negligent. The appellant showed his

discontent to the amount of compensation awarded towards pain

and suffering. He claimed Rs.5,00,000/- for tremendous pain &

suffering and mental agony. It was submitted that appellant

suffered 100% disability for reproduction and sexual life and Ld.

Tribunal ought to have awarded Rs.10,00,000/- on this count.

Further, it is contended that separate compensation ought to have

been awarded for loss of enjoyment of life & for loss of amenities of

life. It is further contended that the loss of income should also be

enhanced to Rs.76,800/- as appellant was earning Rs.1600/-per

month at the time of accident and could not earn for a period of 4-5

years. It is also stated that Ld. Tribunal erred in not awarding any

compensation for future loss of earnings. The counsel also

submitted that Ld. Tribunal has not considered the fall in the value

of money between the date of accident and the date of judgment.

Further the counsel pleaded that the counsel erred in awarding an

interest of 12% pa instead of 15% pa in view of the Supreme Court

judgment reported as 1991 ACJ 3.

5. Per contra Mr. J. N. Aggarwal counsel for respondent no. 6

urged that the respondent no. 6 is not at all liable to pay the

compensation amount and even the appellant petitioner did not

press the claim against respondent no. 6 which is manifest from

para 24 of the award.

5. I have heard counsel for the parties 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 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 awarded Rs.10,000/- for

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

Rs.50,000/- for mental pain and sufferings; Rs.75,000/- towards

disability and loss of enjoyment of life; Rs.9000/- on account of loss

of wages.

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

Rs. 50,000/- to the appellant. It has come on record that the rear

tyre of the bus ran over the lower part of the body of the appellant

as a result of which the appellant sustained fracture of pelvic bone

and also sustained wounds on the other body parts. Considering

that the pelvic area or the pelvic cavity is a body cavity that is

bounded by the bones of the pelvis and which primarily contains

reproductive organs, which is a sensitive part of the body, the

tribunal awarded Rs. 50,000/- in this regard. This is a non-pecuniary

head of damage and the same is awarded considering the facts and

circumstances of the case. In the facts and circumstances of the

case, I feel that the compensation towards mental pain & suffering

as awarded by the tribunal should not be interfered with.

9. As regards the compensation towards permanent disability,

the tribunal awarded Rs. 75,000/-. It has come on record that the

appellant lost his both testicles. Dr. S.P. Bajaj of the Safdarjung

Hospital certified vide Ex. PW4/B that the petitioner cannot

procreate and his sexual life has become disabled to the extent of

100%. The tribunal considering this awarded Rs. 75,000/- under this

head. In the facts and circumstances of the case and considering

that this is a non-pecuniary head of damage and the same is

awarded considering the facts and circumstances of the case, no

interference is made in the award in this regard.

10. 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. It has come on record that the rear tyre of

the bus ran over the lower part of the body of the appellant as a

result of which the appellant sustained fracture of pelvic bone and

also sustained wounds on the other body parts. It has come on

record that the appellant lost his both testicles. Dr. S.P. Bajaj of the

Safdarjung Hospital certified vide Ex. PW4/B that the petitioner

cannot procreate and his sexual life has become disabled to the

extent of 100%. 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.75,000/-.

11. As regards loss of earnings, no proof regarding income of the

appellant was brought on record. As per the claim petition, the

petitioner submitted that he was employed with M/s. Rainbow Video

Cassettes at Rs. 850/- pm and also used to earn Rs. 700/- pm by

working as an electrician in spare time. The petitioner as PW 2

deposed that he used to earn Rs. 800/-pm but after adding his

overtime payment his total wages came to Rs. 1600/- pm. He

further deposed that due to the accident he could not work for 4-5

years and thereafter he started doing the job of an electrician from

his residence and used to earn Rs. 1600/- to 2000/- pm. But nothing

was brought on record in relation to the income of the appellant

and therefore, the tribunal assessed the income as per the

minimum wages notified in the year 1988, the minimum wages for

a skilled worker were Rs. 749/- pm rounded of to Rs. 750/- pm. The

tribunal considered that it came on record that the petitioner

remained hospitalized for about three months and thereafter

attended physio-therapy sessions upto January 1989. Taking into

consideration the facts and circumstances of the case the tribunal

took the view that the petitioner must have not been able to work

for one year and assessed the loss of income at Rs. 9,000/- pm.

Considering that the appellant could not prove the period during

which the appellant did not work and suffered loss of income.

Therefore, no interference is made in this regard in the award.

12. As regards loss of future income, nothing has come on record

to prove the same and therefore, the tribunal committed no error in

not awarding compensation under the said head of damages. Thus,

no interference is made in the award.

13. As regards the issue of interest that the rate of interest of

12% 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, 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 @

12% pa by the tribunal and the same is not interfered with.

14. In view of the foregoing, Rs.10,000/- is awarded towards

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

50,000/- for mental pain and sufferings; Rs.75,000/- towards

disability and loss of enjoyment of life; Rs. 75,000/- for loss of

amenities of life and Rs.9000/- on account of loss of wages.

15. 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 by exercise of reasonable

care could 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 has

come in the deposition of PW2 the appellant himself that he was

going to Palika bazaar, his place of work and he tried to stop the

offending bus at Ramesh Nagar so that he could change the bus

and travel in another bus which was just behind the offending bus

which was directly going to palika bazaar. But appellant took time

to move to the front gate of the bus and the bus started moving.

The appellant was pulled out from the crowded bus towards the

front door by the helper and the appellant lost his control and

stumbled down from the moving bus and resultantly met with the

accident and came under the rear wheel of the bus. But this version

is slightly different from the facts stated in the pleadings wherein

the appellant petitioner has nowhere mentioned that the helper

pulled him in the front. Rather therein he mentioned that on

16.9.88, appellant Amrit Pal Singh was travelling in a bus bearing

registration no. DEP-7080 being driven by R1, Baldev Singh, on

which R2, Rohtas Singh was helper/conductor. When the bus

reached the stop at Ramesh Nagar, a number of passengers got

down but when appellant reached near the front gate, the bus

started moving. The appellant informed the Conductor/R-2 that he

was to get down at Ramesh Nagar. Conductor asked the driver to

stop the bus to enable the appellant to get down. When appellant

was in the process of getting down the bus, Respondent no.1

accelerated the speed of the bus all of a sudden and the bus moved

with a jerk. As a result, appellant as well as helper/conductor

Rohtas Singh fell out of the bus. Even thereafter, R1 did not stop

the bus and appellant was dragged to some distance and the rear

wheel of the bus ran over the thigh of the appellant. Considering

the fact that the appellant was in a hurry to board another bus

which was behind the bus in which he was travelling and also

considering the fact that the appellant petitioner had deviated from

his version in the claim petition while deposing as PW2, the tribunal

held him as also contributory negligent in the facts of the instant

case. I feel that the tribunal committed no error in this regard as

obviously in a hurry to board a bus to reach his office the appellant

forgot the safety rules.

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

the bus driver of the bus bearing registration no. DEP 7080 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 liable for negligence but the percentage

liability attributed to the appellant appears to be on the higher side

in the facts of the present case, therefore the same is modified to

the extent of 30%. Hence, after making 30% deduction towards

contributory negligence of the appellant, the total compensation

after making 30 % deduction from Rs. 2,29,000 will come to Rs.

1,60,300/- (229000-68700).

17. As regards the contention of the counsel for the appellant that

there is no liability of the respondent no. 6 DTC and it should not be

held liable to compensate the appellant. The tribunal has clearly

held respondents 1, 3 and 7 liable for the payment of compensation

and thus there is no liability of the respondent no. 6 in the instant

case.

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

enhanced to Rs. 1,60,300/- from Rs. 77,000/- 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 respondent no. 7.

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

6.4. 2009                                     KAILASH GAMBHIR, J