Suraj Dass vs Shiv Kumar & Ors.
2009 Latest Caselaw 1182 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+              FAO No. 394/96

                                     Judgment reserved on 5.3.2008
                                     Judgment delivered on 6.4.2009
%

SURAJ DASS                                        ........Appellant
                             Through: Mr. O.P. Mannie, Advocate

           Versus


SHIV KUMAR & ORS.                                 ........Respondent.
                             Through : None.


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 is preferred against the award of

compensation passed by the Learned Motor Accident Claim Tribunal on

19.7.96. The learned Tribunal awarded a total amount of Rs.35,000/-

with an interest @ 12 % PA for the injuries sustained by the claimant

appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. On 21.9.84, at about 7:00 PM, appellant, Suraj Dass was going

towards Aram Bagh on foot. While he was crossing Desh Bandhu

Gupta Road opposite Police Station Paharganj, Delhi, he was hit by a

vehicle bearing registration no. DER-8140, which was being driven by

R1 in a rash and negligent manner. Due to the accident, appellant

sustained injuries.

4. A claim petition was filed on 1.4.85 and an award was made on

19.7.96. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Sh. O.P. Mannie, counsel for the appellant urged that the award

passed by the learned Tribunal is inadequate & insufficient looking at

the circumstances of the case and learned tribunal ought to have

calculated the award under different heads instead of granting a

consolidated amount of Rs.35,000/-. It was further submitted by Ld.

Counsel for the appellant that tribunal has erred in not considering the

earning capacity of the appellant which has been adversely affected on

account of this accident. The Counsel also expressed his discontent on

the amount of compensation granted towards pain and sufferings as

the tribunal has not taken into consideration the factum of appellant

having undergone operation for bone grafting and skin grafting. It is

further submitted that Ld. Tribunal erred in not taking into

consideration the dwindling value of rupee due to high rate of inflation

while computing the compensation. Further, the counsel pleaded that

the tribunal erred in awarding an interest of 12% p.a only from the

date of petition till realisation instead of 24% p.a on the awarded

amount from the date of filing of the petition till its realization.

6. Nobody has been appearing for the respondents.

7. I have heard the counsel for the appellant 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. Considering the aforesaid decision of the Apex Court, it is

manifest that the tribunal ought to have awarded the compensation

under different heads of damages instead of awarding a lumpsum

amount. In the instant case the tribunal has awarded Rs. 35,000/- as

lump sum compensation.

10. On perusal of the award, it is manifest that the appellant did not

produce on record any medical bill to prove the expenses incurred by

him towards medicines and medical treatment. As per the deposition

of the appellant he suffered injuries in his leg. But it has also come on

record that the appellant took treatment at a government hospital and

therefore, he was not required to pay a single penny for his treatment.

11. As per medical record Ex. Px and medical case sheet Ex. PW1/1

the appellant suffered compound fracture on both the bones of the left

leg. Although there is no medical bill to prove amount spent towards

medical expenses but considering the kind of injuries sustained by the

appellant it is manifest that he must have spent money on medicines.

I feel that awarding Rs. 10,000/- under the said head would be just and

fair.

12. As regards conveyance expenses, nothing has been brought on

record by the appellant to prove the expenses incurred by him towards

conveyance expenses. But considering that as per medical record Ex.

Px and medical case sheet Ex. PW1/1 the appellant suffered compound

fracture on both the bones of the left leg I feel that awarding Rs.

1,000/- under the said head would be just and fair.

13. 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 considering that as per medical record Ex. Px

and medical case sheet Ex. PW1/1 the appellant suffered compound

fracture on both the bones of the left leg I feel that awarding Rs.

1,000/- under the said head would be just and fair.

14. As regards mental pain & suffering, considering that as per

medical record Ex. Px and medical case sheet Ex. PW1/1 the appellant

suffered compound fracture on both the bones of the left leg I feel that

awarding Rs. 25,000/- under the said head would be just and fair.

15. As regards the compensation towards permanent disability, no

disability certificate has come on record. I feel that no amount can be

awarded under the this head in the absence of documentary evidence.

16. 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 appellant

sustained compound fracture on the left leg. It is manifest that due to

such injuries he must have suffered problem in doing his normal work

of a cobbler. I feel that awarding Rs. 15,000/- under the said head

would be just and fair.

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

appellant was brought on record. Further nothing has come on record

as to for how much time the appellant could not work as a cobbler.

Therefore, no amount can be awarded under this head.

18. 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 24% 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.

19. In view of the foregoing, Rs. 1,000/- is awarded towards

conveyance expenses; Rs. 1,000/- is awarded towards special diet; Rs.

15,000/- towards loss of amenities; Rs. 10,000/- towards medical

expenses and Rs. 25,000/- for mental pain and sufferings.

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

enhanced to Rs. 52,000/- from Rs. 35,000/- 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 insurance company.

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

6.4.2009                                    KAILASH GAMBHIR, J.