Delhi High Court
Vedwati vs Kishore Singh & Ors. on 6 April, 2009
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC APP No. 487/04
Judgment reserved on : 26.2.2008
Judgment delivered on: 6.4.2009
%
VEDWATI ........Appellant
Through: Mr. N.S. Dalal, Advocate
Versus
KISHORE SINGH & ORS ........Respondent.
Through : Ms. Meenakshi Chauhan,Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
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 17.2.2004 for
enhancement of compensation. The learned Tribunal awarded a total
amount of Rs.1,05,000/- with 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. The appellant along with other family members met with an
accident on 2.8.1997, at about4:30PM near Khel Khal, Peeple Khothi on
Neel Kanth Mandir Marg, Laxman Jhulla, District Pauri Garhwal, U.P.
They were on a pilgrimage to Neel Kanth Mandir and boarded Taxi/Jeep
bearing registration no. UP-7C-2870 @ Rs.35 per passenger from
Swarg Ashram, Rishikesh which was being driven by Respondent no.1.
On their way to Neel Kanth Mandir, Respondent no.1 was warned by
the occupants of the oncoming traffic/vehicles to remain cautious of
likely land slide as the earth from the loose hills falling at some places
on the road to the Mandir; nonetheless Respondent no.1 drove rashly,
negligently and recklessly ahead and the Respondent no.1 even saw
some stones falling on the road but did not stop his vehicle. Some
boulder fell down from the land slide on to the passengers sitting in the
jeep. In the said accident, some of the passengers died and the
appellant sustained injuries.
4. A claim petition was filed on 20.12.1997 and an award was made
on 17.2.2004. Aggrieved with the said award enhancement is claimed
by way of the present appeal.
5. Sh. N.S. Dalal, 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 award of Learned
Tribunal firstly, on the ground that the tribunal erred in rejecting the
reimbursement of purchase of medicines as appellant sustained
grievous injuries in the accident and remained under treatment for a
period of 3-4 months. It was contended that Ld. Tribunal ought to have
awarded Rs.80,000/- under this head. It is further submitted that
Rs.15,000/- is awarded by the Ld. Tribunal for medical expenses
whereas same should have been Rs.50,000/-. The counsel also
showed his discontent to the amount of compensation awarded by the
Ld. Tribunal towards pain and sufferings and stated that same should
have been Rs.1,00,000/-. Enhancement is also claimed on the ground
that a sum of just Rs. 2500/- is awarded towards special diet instead of
the claim of Rs.10,000/-. Amount towards the conveyance is also
sought to be enhanced to Rs.15,000/-. The counsel further sought
enhancement of the compensation awarded for loss of amenities of life
and enjoyment from Rs.30,000/- to Rs.1,00,000/-.
6. Ms. Meenakshi Chauhan counsel for the respondent while refuting
the contentions of counsel for the appellant contended that the award
passed by the tribunal is just and fair and same does not require any
interference by this court.
7. I have heard the counsel for the parties and perused the award.
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 has awarded Rs.15,000/- for
expenses towards medicines; Rs.2500/- for special diet; Rs.7500/- for
conveyance expenses; Rs.50,000/- for mental pain and sufferings; Rs.
30,000/-towards loss of amenities
10. On perusal of the award, it is manifest that the appellant had
placed on record various bills Ex. PW1/1 to PW1/9 PW1/11, PW1/12,
PW1/22, PW1/31 which comes to a total of Rs. 11,270/-. As regards
medical expenses, the tribunal took cognizance of the fact that the
appellant suffered grievous injuries in the nature of compound fracture
on the left hand, dislocation of the right shoulder, right side cheek
bone fracture and two fractures on the left side of the neck and must
have spent some amount on purchase of medicines. Even though the
appellant could not prove that she had incurred Rs. 15,000/- towards
medical expenses but still the Tribunal increased the amount from Rs.
11,270/- to Rs. 15,000/-. I do not find any infirmity in the order in this
regard and the same is not interfered with.
11. As regards conveyance expenses, nothing has been brought on
record. The appellant suffered grievous injuries in the nature of
compound fracture on the left hand, dislocation of the right shoulder,
right side cheek bone fracture and two fractures on the left side of the
neck. The appellant deposed as a witness that she had to employ
ambulance for travelling at times and the same costed her Rs. 300/-
each time. But nothing has been brought on record to prove the same.
The tribunal after taking notice of this fact and in the absence of any
cogent evidence awarded Rs. 7,500/- for conveyance expenses. I do
not find any infirmity in the order in this regard and the same is not
interfered with.
12. 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 suffered grievous injuries in the nature of
compound fracture on the left hand, dislocation of the right shoulder,
right side cheek bone fracture and two fractures on the left side of the
neck, thus she must have also consumed protein-rich/special diet also
for her early recovery and awarded Rs. 2,500/- for special diet
expenses. I feel that the same should be enhanced to Rs. 5,000/- in the
facts and circumstances of the case.
13. As regards mental pain & suffering, the tribunal has awarded Rs.
50,000/- to the appellant. The appellant suffered grievous injuries in
the nature of compound fracture on the left hand, dislocation of the
right shoulder, right side cheek bone fracture and two fractures on the
left side of the neck. In such circumstance, I do not find any infirmity in
the order in this regard and the same is not interfered with.
14. 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 same should be enhanced and in
the circumstances of the case considering that the appellant suffered
grievous injuries in the nature of compound fracture on the left hand,
dislocation of the right shoulder, right side cheek bone fracture and
two fractures on the left side of the neck and thus it must have been
inconvenient for her to take part in normal functioning of life as she
used to prior to the accident. Therefore, the same is allowed to the
extent of Rs. 50,000/-.
15. From the foregoing, the compensation towards loss of amenities
and enjoyment of life is awarded at Rs. 50,000/-; Rs. 50,000/- towards
mental pain and sufferings; Rs. 5,000/- towards special diet; Rs. 7,500/-
towards conveyance expenses and Rs. 15,000/- towards medical
expenses including purchase of medicines.
16. In view of the above discussion, the total compensation is
enhanced to Rs. 1,27,500/- from Rs. 1,05,000/- 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. 3 insurance company.
17. With the above directions, the present appeal is disposed of.
6.4.2009 KAILASH GAMBHIR, J.
