Smt. Naseem Bano vs Sh. Puran Singh & Ors.
2009 Latest Caselaw 1186 Del

          * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       FAO No.76/2000

                        Judgment reserved on: 23.4.2008
%                       Judgment delivered on:06.04.2009


Smt. Naseem Bano                                 ...... Appellant
                        Through: Mr. O.P. Mannie, Advocate

                        versus


Sh. Puran Singh & Ors.                       ..... Respondents
                    Through: 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 Claims Tribunal on 22 nd October

1999 for enhancement of compensation. The learned Tribunal awarded

a total amount of Rs. 91,000/- 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. The injured claimant appellant Mrs. Naseem Bano, aged about 28

yrs was a self employed lady doing the business of manufacturing

School Bags, and it is the case of the injured appellant that she was

earning an amount of Rs. 4,000/- per month from her business. On 31st

January 1998, the petitioner was the pillion rider on the two wheeler

scooter driven by her husband. They were going from Tank road to

Paschimpuri. At about 1:00 P.M. when they reached the Jakhira flyover,

their scooter was hit from behind by a truck bearing registration No. Rj-

05-G-0216. The truck was driven in a rash and negligent manner

because of which the accident occurred. The lady suffered compound

fracture of the shaft of left femur and also a fracture on the right ankle.

4. A claim petition was filed by the appellant before the Motor

Accident Claims Tribunal on 20th April 1998 and the learned Tribunal

awarded the compensation on 22nd October 1999.

5. In the present appeal, the appellant has challenged the quantum

of the compensation passed by the learned Tribunal. The counsel for

the appellant contended that the Tribunal erred in awarding Rs. 7,100/-

only as loss of wages whereas the Appellant had suffered a loss of Rs.

48,000/- of her business. Further it is contended that the learned

Tribunal erred in not awarding any compensation to the Appellant for

the services of the maid servant she had to avail for a period of one

year at monthly wages of Rs. 1,500/-. Further the counsel contended

that the compensation of Rs. 53,500/- made towards medical expenses

is also on a lower side and the actual expenditure incurred by the

appellant was Rs. 80,000/-. Enhancement is also claimed on the

ground that the appellant had suffered grave mental and physical pain

and shock due to the accident and hence the Tribunal erred in not

awarding anything to compensate for that mental and physical pain

and agony and the loss of amenities, damage for loss of expectation

for life and inconvenience and hardship suffered by the appellant and a

claim of Rs. 50,000/- is made towards each head. Further the counsel

urged that the Tribunal erred in not awarding an interest of 18% pa

instead it awarded interest of 12% pa.

6. Nobody has been appearing for the respondents.

7. I have heard the contentions of the Learned Counsel for the

appellant, and perused the record.

8. On perusal of the award it comes in to light that the medical bills

and cash memos, Ex. P-1 to P-88, were produced on record and were

duly proved. Dr. Arvind Aggarwal, who treated the appellant entered

the witness box as PW5 and deposed that the appellant had suffered

comminuted fracture of shaft of left femur and Potts fracture of right

ankle. He further deposed that the appellant was operated upon on

2/2/1998 and the plating of left femur was done and right ankle was

fitted after open reduction. The tribunal after considering all the cash

memos and vouchers pertaining to medicines, consultation and

investigation etc. calculated that the appellant had incurred Rs.

43,500/- towards medical expenses. On perusal of the said Ex. P-1 to P-

88, I feel that the same needs no interference.

9. As regards the expenses towards conveyance and special diet,

the tribunal has awarded Rs. 5,000/- each in the absence of any

evidence regarding them being not brought on record. Dr. Arvind

Aggarwal, who treated the appellant and entered the witness box as

PW5 and stated in his deposition that the appellant had suffered

comminuted fracture of shaft of left femur and Potts fracture of right

ankle. He further deposed that the appellant was operated upon on

2/2/1998 and the plating of left femur was done and right ankle was

fitted after open reduction. Clearly, for early recovery the appellant

must have taken protein rich diet and must have visited hospital at

different intervals. Therefore, I feel that the expenses towards

conveyance and special diet do not require any enhancement and the

same are assessed at Rs. 5,000/- each.

10. As regards the loss of income of the appellant due to the

accident, the tribunal has observed that the appellant averred that she

was self employed and was manufacturing school bags at her

residence and used to earn Rs.4,000-5,000/- per month. The appellant

did not bring on record to prove that she was doing the said business

of manufacturing bags. The appellant also did not bring on record

anything to prove her income and the period during which she could

not do her business. In the absence of the same the tribunal has

assessed the loss of earnings of the appellant for three months with

the aid of the Minimum Wages Act for the wages of a skilled workman

at Rs. 2,361/-pm. I feel that the tribunal did not err in assessing the

loss of earnings of the appellant for three months with the aid of the

Minimum Wages Act for the wages of a skilled workman at Rs. 7,100/-

(2361X3) in the absence of any cogent evidence on record to assist

the court in assessing the loss of income. Therefore, the same is not

interfered with.

11. As regards compensation to the Appellant for the services of the

maid servant she had to avail for a period of one year at monthly

wages of Rs. 1,500/-, the tribunal has observed that no evidence was

brought on record for the same. The accident took place on 31/1/1998

and on perusal of the record, it becomes manifest that she kept

visiting the Maharaja Agrasain hospital till 1/9/1999. She had a

daughter aged 10 years and two sons aged 9 years; 7 years apart from

her husband aged 42 years to take care. Due to the operation she

would not have been able to take care of them and would have

required an assistant. Even in the absence of the evidence regarding

the period for which the appellant was unable to work, the tribunal

considered the same to be three months and since the tribunal had

assessed the loss of earnings of the appellant for three months, I feel

that the tribunal could have awarded Rs. 5,000/- on this account as

well. Therefore, Rs.5,000/- is awarded to the appellant for the services

of the maid servant she had to avail for a period of three months at

monthly wages of Rs. 1,500/-.

12. Pain and suffering compensates victim for

the physical and mental discomfort caused by the injury. Pain is

physical; suffering is emotional. While pain is the physiological

response to certain stimuli, suffering is psychological or emotional

response to pain. The tribunal has awarded Rs. 20,000/- towards pain

and sufferings and I feel that in the facts of the present case, since the

appellant underwent an operation even after suffering the pain due to

the accident, I feel that the amount towards pain and sufferings be

enhanced to Rs. 50,000/-.

13. The appellant has further claimed compensation towards loss of

amenities, loss of expectation of life and inconvenience and hardship

suffered by the appellant. Compensation for loss of

expectation of life and loss of amenities, resulting from the

defendant's/respondent's negligence, affects the injured person's

ability to participate in and derive pleasure from the normal activities

of daily life, and to pursue his talents, recreational interests, hobbies or

avocations. In the facts of the present case, Rs. 50,000 is hereby

awarded towards loss of amenities, loss of expectation of life and

inconvenience and hardship suffered by the appellant.

14. 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 18% 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.

15. Therefore, Rs. 43,500/- is awarded towards medical expenses; Rs.

5,000/- for conveyance expenses and Rs. 5,000/- for special diet; Rs.

7,100/- for loss of income for 3 months; Rs. 5,000/- for hiring services

of a maid for 3 months; Rs. 50,000/- for pain and sufferings and Rs.

50,000/- towards loss of amenities, loss of expectation of life and

inconvenience and hardship suffered by the appellant.

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

enhanced to Rs. 1,65,600/- from Rs. 91,000/- with interest @ 7.5% per

annum on enhanced compensation from the date of filing of the

petition till realisation 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.

06.04.2009                               KAILASH GAMBHIR, J.