Jaswant Lal Nagpal vs Anand Singh & Ors.
2009 Latest Caselaw 1185 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       FAO No. 189/1998

                        Judgment reserved on: 03.03.2008
%                       Judgment delivered on: 6.4.2009


Jaswant Lal Nagpal
                                         ...... Appellant
                        Through: Mr. O. P. Mainee, Advocate.

                   versus

Anand Singh & Ors.
                                            ..... Respondents
                        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 arises out of the award of compensation

passed by the Learned Motor Accident Claim Tribunal on 2.2.1998 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 65,100/- 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:

3. On 21.11.1992, at about 8:50AM on G.T. Karnal Road, near Har

Milap Ashram, Delhi within the jurisdiction of P.S Model Town, Delhi,

the appellant sustained injuries on account of rash and negligent

driving of the bus bearing registration no. DL-1P-2515, when he was

driving delivery van bearing registration no. DL-1A-2074 in the

direction of Rana Pratap Bagh accompanied by his son, Sanjay Nagpal.

A claim petition was filed on 30.3.1993 and an award was made on

2.2.1998. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

4. Sh. O.P. Mannie, 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 assessing the income of the claimant appellant at Rs.1,009/-

PM whereas he was actually earning Rs.3,500/-per month. It is further

argued that Ld. Tribunal erred in taking into consideration the

provisions of II schedule to the Motor Vehicles Act for assessing the

loss of earning for 52 weeks only whereas the claim of the appellant

was filed u/s 166 & 140 of M.V Act and as such, the Ld. Tribunal ought

to have awarded the loss of income @ Rs.3500/-per month for 2 years

and 7 months as appellant remained under active treatment upto the

middle of 1995. The Counsel also expressed his discontent to the

awarded compensation of Rs.33,000/- towards expenses on treatment,

special diet and conveyance and claimed more than Rs.90,000/- under

these heads. It was submitted that Ld. Tribunal erred in awarding the

general damages to the tune of Rs.20,000/- and same should have

been Rs.2,00,000/-. It is also submitted that no compensation for the

permanent disability suffered by the appellant has been awarded by

the Tribunal. It was further pleaded that Ld. Tribunal erred in not

awarding any compensation for loss of earning capacity, loss of

expectation of life, loss of amenities of life and for hardship,

discomfort, disappointment, frustration & mental stress faced by the

appellant. Further, the counsel pleaded that the tribunal erred in

awarding an interest of 12% p.a instead of 24% p.a. It is further urged

that Ld. Tribunal erred in passing the directions that 80% of the award

with entire upto date interest shall be put in fixed deposit in any

scheduled bank for a period of five years and tribunal ought to have

released at least 75% of the award with proportionate interest to the

appellant.

5. Nobody has been appearing for the respondents.

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

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."

8. In the instant case the tribunal awarded Rs. 30,000/- for expenses

towards medicines; Rs. 3,000/- for special diet & conveyance

expenses; Rs. 20,000/- for general damages and Rs. 12,108/- on

account of loss of earnings.

9. Ld. Tribunal awarded Rs.30,000/- for expenses towards medical

treatment, on the basis of the treatment record and also documents in

this regard being Ex. Pw8/1 to 61. Ex. PW5/56 and also Ex. PW2/1

proving the indoor treatment at Ganga Ram Hospital. Ex. PW5/65 and

Ex. PW8/3 to 6 are other bills pertaining to medical expenses. The total

of all these bills comes to Rs.27, 293.25/- and after considering the

said amount and the nature of injuries suffered and the period of

treatment undergone by the appellant, the tribunal awarded Rs.

30,000/- under the said head. I do not feel that there is any scope for

interference in this regard.

10. As regards conveyance expenses and special diet, nothing has

been brought on record. The tribunal after considering that the

appellant suffered grievous head injuries; injuries on the back and ears

and abrasion and bruises on other parts of the body and also

considering the nature of injuries suffered and the period of treatment

undergone by the appellant awarded Rs. 3,000/- in this regard. 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 not awarded

compensation separately. The tribunal awarded a lump sum amount of

Rs. 20,000/- to the appellant towards general damages, which are also

called non-pecuniary damages and 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 as discussed above in the judgment of Mahadeva

Shetty (supra). I feel that the tribunal erred in awarding lump sum

amount in this regard and ought to have awarded compensation under

the separate heads. Therefore, keeping in mind that the appellant

suffered grievous head injuries; injuries on the back and ears and

abrasion and bruises on other parts of the body and also considering

the nature of injuries suffered and the period of treatment undergone

by the appellant, I feel that the compensation towards mental pain &

suffering should be awarded at Rs. 20,000/-. 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, the

compensation for the same should be separately awarded at

Rs. 20,000/-.

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

appellant was brought on record. It is no more res integra that mere

bald assertions regarding the income of the victim are of no help to

him in the absence of any reliable evidence being brought on record.

The thumb rule is that in the absence of clear and cogent evidence

pertaining to income of the victim learned Tribunal should determine

income of the victim on the basis of the minimum wages notified under

the Minimum Wages Act. Therefore, the tribunal assessed the income

in accordance with the rates of minimum wages applicable under the

MW Act @ Rs. 1009/-pm. The tribunal in para 10 of the award observed

that the appellant continued to be treated for his injuries from the date

of the accident on 21/11/1992 till middle of 1995, which means more

than 2 years. It is no more res integra that in the absence of any

reliable proof as regards the income of the victim the tribunal takes

assistance of the II Schedule to the MV Act. The MV Act is a beneficial

piece of legislation and should be interpreted in such a manner that it

benefits the victims of the accident. In view of the above discussion, I

am of the view that the tribunal ought to have assessed the loss of

income for two and half year when the same was proved by the

appellant vide Ex. PW8/1 to 61. Therefore, the award in this regard is

modified to award compensation to the tune of Rs. 3,0270/- for 2 and a

half year.

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 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.

14. As regards the issue that the tribunal deposited 80% of the award

amount in the nationalized bank, I feel that the same also does not

suffer from any infirmity. In Lilaben Udesing Gohel vs. Oriental

Insurance Co. Ltd. - 1996 ACJ 673 (SC) the Hon'ble Apex Court laid

down broad guidelines which the Claims Tribunal should follow while

disposing of the claim applications arising under the Motor Vehicles

Act, 1989 to scotch complaints of misapplication of compensation

money and that as per those guidelines the compensation money

should be invested in a nationalised bank as a fixed deposit and the

interest thereon should be paid directly to the claimant or his guardian,

as the case may be. Therein, the Apex Court also held that in personal

injury cases if treatment is necessary the Claims Tribunal on being

satisfied about the same may after recording reasons for such

satisfaction direct the Insurance Company to pay such amount to the

claimant as is necessary for incurring the expenses for such treatment.

This permission should be granted strictly after verifying the necessity

of medical expenses. Therefore, the appellant can always seek

withdrawal of the said deposited amount upon proof of any exigency.

Therefore, no interference is made in the award on this count.

15. In view of the foregoing, Rs. 30,000/- is awarded for expenses

towards medicines; Rs. 3,000/- for special diet & conveyance

expenses; Rs. 20,000/- for mental pain and sufferings; Rs. 20,000/- for

loss of amenities of life and Rs. 30,270/- on account of loss of earnings.

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

enhanced to Rs.1,27,489/- from Rs. 65,100/- 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 insurance company.

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

6.4.2009                                    KAILASH GAMBHIR, J