Smt Sitara Begum vs Rishi Pal & Ors.
2009 Latest Caselaw 1187 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

                   FAO No. 172/2000

                             Judgment reserved on: 23.04.2008

%                            Judgment delivered on: 06.04.2009



Smt Sitara Begum                          ...... Appellant

                       Through: Mr. J.S. Kanwar, Adv.



           versus



Rishi Pal & 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 arises out of the award passed by the

Learned Motor Accident Claim Tribunal on 11th November 1999 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 13,336/- 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 28th November 1991, Sitara Begum was crossing Loni Road

and when she reached at footpath, a maruti car came from the

direction of Loni Road at a very high speed, driven rashly and

negligently by the driver Rishi Pal. As a result of the impact, the lady

received grievous injuries and she was admitted in GTB Hospital. Ms.

Sitara Begum sustained fractures on both sides of the neck bone and

fracture of the right hip bone.

4. Sh. J.S. Kanwar, counsel for the appellant claimant claims through

this appeal that looking at the circumstances of the case the award

passed by the learned Tribunal is inadequate and insufficient. He

assails the said judgment of Learned Tribunal on following grounds:

firstly, it was contended that the learned Tribunal erred in assessing

the loss of income at an amount of Only Rs. 1,336/- and the same was

paid for only one and a half months whereas the claimant appellant

was unable to join her work for 2 years. Learned counsel for the

appellant contended that the tribunal should have awarded Rs.

1,80,000/- on account of loss of income for 2 years. The Counsel also

expresses his discontent on the amount of compensation granted

towards medical expenses. He claimed an amount of Rs. 25,000

towards the medical treatment and expenses. The claimant appellant

is not able to produce medical bills to claim the stated amount, but he

contended that looking at the facts and circumstance of the case and

the fact that the claimant received severe injuries including three

fractures, the learned Tribunal should have considered awarding Rs.

25,000 specially in the time when medicines and medical treatment is

becoming so expensive. Enhancement is also claimed on the ground

that no amount is granted towards the special diet and conveyance

charges and a meager sum of Rs. 10,000 is awarded as a cumulative

sum for medical expenses and special diet. The Tribunal awarded a

sum of Rs. 2,000/- towards mental pain & suffering and has not passed

it as a special head as per the method followed by courts. The counsel

shows his discontent to that as well and argues that it should have

been Rs. 1,00,000/-. It is further contended that no award is made for

the non-pecuniary damages for mental pain and suffering and loss of

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

awarding an interest of 12% pa from 20.11.97 instead of awarding

from 24.1.92 that was the date of the institution of the claim petition,

thus the Tribunal erred in law by not awarding it from the date of

institution of the suit.

5. Nobody has been appearing for the respondent.

6. I have heard the counsel for the appellant and have 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 and

fatal accidents 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 has awarded Rs. 10,000/- for the

cost of treatment, purchase of medicines; special diet and for

conveyance expenses; Rs. 2000/- for pain and agony and Rs. 1336/- on

account of loss of earnings.

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

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

collar bone and hip bones were fractured. She further stated that she

remained in GTB Hospital for about a week and thereafter was

admitted in Gopal Nursing Home for 10/12 days. She averred that she

was sewing clothes for an export company on contract basis and was

earning Rs.1500pm. She also stated that she got her collarbone

plastered, which was removed after 6 weeks. The appellant did not

bring on record to prove that she was doing the said work of sewing

clothes. The appellant also did not bring on record anything to prove

her income and the period during which she could not do her work. In

the absence of the same the tribunal has assessed the loss of earnings

of the appellant for one and a half months with the aid of the Minimum

Wages Act for the wages of an unskilled workman at Rs. 1336/-. I feel

that the tribunal did not err in assessing the loss of earnings of the

appellant for one and a half months with the aid of the Minimum

Wages Act for the wages of an unskilled workman at Rs. 891/- p.m. 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.

10. Award for 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

awarded Rs. 2,000/- towards pain and sufferings and I feel that in the

facts of the present case, since the appellant underwent an operation

and also suffered the pain due to the accident, I feel that the amount

towards pain and sufferings be enhanced to Rs. 25,000/-.

11. As regards Rs. 10,000/- being awarded for the cost of treatment,

purchase of medicines; special diet and for conveyance expenses. In

the circumstance the case as discussed above I feel that the same is

on the lower side in view of the injuries suffered by the victim and the

same should be enhanced to Rs. 25,000/-.

12. As regards loss of amenities, same is awarded for the defects

due to which the injured is unable to live a normal life for whatever the

span, due to the accident. I feel the same should have been awarded

by the tribunal at Rs. 10,000/-.

13. On the ground that the interest has been awarded to the

appellant only from 20/11/1997 in place of the date of filing of the

petition i.e. 24/1/1992, in this regard the tribunal observed that the

appellant filed the claim petition on 24/1/1992 but moved the

application for impleading the insurance company on 30/1/1995 and

even then she failed to serve the insurance company on various dates

and it was only on 19/11/1997 that the appellant got served the

insurance company and thus the tribunal did not allow interest for the

period from 24/1/1992 to 19/11/1997. I consider that tribunal has

given sufficient reason for not awarding the interest of the above said

period. Nobody can be permitted to take benefit of its wrong. Thus

the finding of the tribunal in this regard is upheld.

14. Compensation cannot be granted on the whims and fancies of the

appellant. Legislature and Courts have laid down a proper formula and

method to be followed in quantifying amount of compensation.

15. Therefore, Rs. 1336/- is awarded for loss of earnings; Rs. 25,000/-

for pain & sufferings; Rs. 25,000/- for medical expenses, special diet

and conveyance expenses and Rs. 10,000/- for loss of amenities.

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

enhanced to Rs. 61,336/- from Rs. 13,336/- with interest @ 7.5% p.a.

on the enhanced compensation from the date of filing of the present

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.