Delhi High Court
Sh. Vishal Mittal vs Dtc on 6 April, 2009
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 2/2003
Judgment reserved on: 21.2.2008
% Judgment delivered on: 6.4.2009
Sh. Vishal Mittal ...... Appellant
Through: Mr. S.N. Parashar, Adv.
versus
DTC ..... Respondent
Through: Mr. Nemo
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 24/07/2002
for enhancement of compensation. The learned Tribunal awarded a
total amount of Rs. 60,640/- with an interest @ 9% PA for the injuries
caused to the claimant appellant in the motor accident.
2. The brief conspectus of facts is that on 21/11/1989 at Hanuman
Road, the appellant was injured when a DTC bus bearing registration
no DEP 8379 crushed his right foot under its wheel. A claim petition
was filed on 13/03/1990 and an award was made on 24/7/2002.
Aggrieved with the said award enhancement is claimed by way of the
present appeal.
3. Sh. S.N. Parashar counsel for the appellant claimant claims
enhancement through this appeal. The counsel 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
assessing the income of the claimant appellant in accordance with the
Minimum Wages Act overlooking the fact that the appellant at the time
of the accident was merely 11 years of age and due to the accident he
lost four toes of his right leg, which has rendered him disabled at such
a young age. The counsel also urged that the tribunal erred in not
considering future increase in income of the appellant while awarding
compensation. The counsel also averred that the tribunal adopted
multiplier in ignorance of the II Schedule to the MV Act. The Counsel
also expressed his discontent on no amount of compensation being
granted towards medical expenses by the tribunal. The counsel also
pleads for compensation towards special diet, conveyance and loss of
education to the appellant. The Tribunal awarded a meager sum of Rs.
25,000/- towards mental pain & suffering but the counsel shows his
discontent to that as well. Further the counsel pleaded that the tribunal
erred in awarding no interest for a period of 4 years.
4. Nobody has been appearing for the respondents.
5. I have heard the counsel for the appellant and perused the
award.
6. In 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 or the claimants in case of
the fatal accidents matter in the same position as he would have been
had accident had 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 has awarded Rs. 25,000/- for
mental pain and sufferings and Rs. 35,640/- on account of loss of
earnings.
8. On perusal of the award, it becomes manifest that the appellant
had not placed on record any medical bill or vouchers. The appellant
was a young boy of 11 years of age at the time of the accident. It
cannot be expected of a boy of such a tender age to keep record of his
expenses. I feel that the tribunal erred in not awarding any
compensation towards medical expenses. Looking at the fact that the
appellant lost 4 toes of his right leg in the accident and also that the
appellant remained admitted in the LNJP Hospital from 21/11/1989 to
26/12/1989 and again he was hospitalized from 5/6/1990 to 7/6/1990
for surgery and thereafter he used to visit the hospital for removal of
plaster and for post operation care, I feel that the tribunal erred in not
awarding compensation under this head. In view of the above
discussion, I award compensation under this head to the tune of Rs.
10,000/-.
9. As regards conveyance expenses, nothing has been brought on
record. Considering that the appellant lost 4 toes of his right leg in the
accident for which purpose the appellant remained admitted in the
LNJP Hospital from 21/11/1989 to 26/12/1989 and again he was
hospitalized from 5/6/1990 to 7/6/1990 for surgery and thereafter he
used to visit the hospital for removal of plaster and for post operation
care, the tribunal after taking notice of this fact even in the absence of
any cogent evidence ought to have awarded at least Rs. 5,000/- for
conveyance expenses. Considering this fact, I award compensation at
Rs. 5,000/- under this head.
10. 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 ought to have considered that
since the appellant sustained serious injuries and lost 4 toes of his
right leg in the accident thus he must have also consumed protein-
rich/special diet for his early recovery and ought to have awarded Rs.
5,000/- for special diet expenses. Considering this fact, I award
compensation at Rs. 5,000/- under this head.
11. As regards mental pain & suffering, the tribunal has awarded Rs.
25,000/- to the appellant. The appellant lost 4 toes of his right leg in
the accident further, the appellant remained admitted in the LNJP
Hospital from 21/11/1989 to 26/12/1989 and again he was hospitalized
from 5/6/1990 to 7/6/1990 for surgery and thereafter he used to visit
the hospital for removal of plaster and for post operation care. Clearly,
the appellant underwent a lot of pain & suffering. In such
circumstance, I feel that the compensation towards mental pain &
suffering should be enhanced to Rs. 50,000/-.
12. As regards the compensation towards permanent disability, I feel
that the tribunal has erred in not awarding the same according to the
principles of law. The appellant at the time of the accident was merely
11 years of age. As per Second Schedule, for non-earning persons, the
notional income has been prescribed to be Rs.15,000/- per annu in
case of fatal and permanent disability cases. The Second Schedule
also prescribes multiplier of 15 for the persons up to the age of 15
years. In the present case, the injured was only 11 years of age and
he was non-earning thus taking into account 40% disability, the
compensation on account of permanent disability comes to
Rs.90,000/- (15000X40/100X15).
13. As regards loss of amenities, Compensation for loss of amenities
of life compensates victim for the limitation, 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. 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. 25,000/-.
14. As regards that no interest has been awarded to the appellant for
a period of 4 years by the tribunal, I feel that the tribunal is fully
justified and no interference in this regard is called for.
15. In view of the above discussion, the total compensation is
enhanced to Rs. 1,85,000/- from Rs. 60,640/-. The differential amount
shall be paid to the appellant by the respondent insurance company
with up to date interest @ 7.5% pa from the date of filing of the
petition in this court till realisation.
16. With the above directions, the present appeal is disposed of.
6.4. 2009 KAILASH GAMBHIR, J.
