Sh. Mohan Lal vs Sh. Raj Bir Singh & Ors.
2009 Latest Caselaw 1188 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No.439/2000

                      Judgment reserved on: 24.1.2008
%                     Judgment delivered on: 6.4.2009


Sh. Mohan Lal                           ...... Appellants
                      Through: Mr. O.P. Mannie, Advocate

                versus


Sh. Raj Bir Singh & Ors.              ..... Respondents
                     Through: Mr. Kanwal Chaudhary, Advocate



CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.   Whether the Reporters of local papers may                     No
     be allowed to see the judgment?

2.   To be referred to Reporter or not?                            No

3.   Whether the judgment should be reported                       No
     in the Digest?


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award of compensation

passed by the Learned Motor Accident Claim Tribunal on 2 nd August

2000 for enhancement of compensation. The learned Tribunal awarded

a total amount of Rs. 39,020/- 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. Injured appellant, Sh. Mohan Lal, aged about 32 yrs at the time of

the accident was working as a chaat seller and is said to have been

earning Rs1,500/- by selling chaat on stall. On 18th November 1989 at

about 1:30 P.M. he was going on a bicycle from his residence to N.D.

Market, Pritampura. He was hit by a TSR bearing registration No. DBL

6538. The offending TSR was travelling from the opposite direction and

the accident was caused due to rash and negligent driving of the driver

of the said TSR. The accident caused grievous injuries to the petitioner

and was removed to D.D.U. Hospital. He sustained fracture in his right

hand along with other bodily injuries.

4. The counsel for the appellant, Sh. O.P. Mannie, contended that

the award passed by the learned Tribunal is inadequate and

insufficient looking at the circumstances of the case. He contended

that the tribunal erred in assessing the income of the claimant

appellant at Rs. 848/- PM which should have been assessed at Rs.

1,500/-. Based on this, it was further contended that the loss of income

should also be enhanced, accordingly. The counsel urged that the

tribunal erred in assessing the total disablement at 20% whereas the

claimant appellant actually suffered disability of 40% of whole body.

He also contended that the tribunal erred in not awarding any

damages towards the 40% permanent disability caused in the

accident. The counsel submitted that the multiplier applied by the

tribunal is on the lower side & the multiplier of 18 should have been

applied instead of 13 by the tribunal. Further the counsel averred that

the tribunal erred in awarding an interest of 12% instead of 18% pa.

5. Per contra, Mr. Kanwal Chaudhry counsel for the respondent No.

3 refuted the contentions of the counsel for the appellants and

contended that since the appellant failed to place on record bills and

treatment papers therefore no enhancement can be awarded for the

same. He also submitted that although disability certificate was placed

on record but same was not duly proved as the doctor was not

examined by the appellant who made the said certificate, therefore, no

compensation should be awarded on this count. Learned counsel also

disputed the awarding of non-pecuniary damages as the same were

not duly proved. Further the learned counsel also disputed assessment

of income as per the wages notified under MW Act for a semi-skilled

person and also submitted that the multiplier of 13 as applied by the

Tribunal does not require any interference.

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 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 awarded Rs. 2500/- for the cost of

treatment as well as purchase of medicines; Rs. 2500/- for special diet;

Rs. 2500/- for conveyance expenses; Rs. 5000/- for pain and agony and

Rs. 26,520/- on account of permanent disability to the extent of 20%.

9. Injured was aged 32 years as on the date of the accident. He

was a chaat seller. On account of the accident, the injured sustained

fracture in his right hand along with other bodily injuries. Disability

certificate, Ex. P-A shows that permanent disability was assessed at

40% by Dr. Ajay Gupta of LNJP, Hospital. Further, the injured deposed

that he remained in Deen Dayal Upadhyay Hospital for about a week,

although his treatment continued for about 5-6 months and even after

5-6 months, he could not work for a year. In the light of aforenoted

backdrop facts, I shall determine the 'fairness' of the compensation

assessed by the Tribunal.

10. On perusal of the award it comes into light that the appellant did

not bring anything on record to prove either the expenditure he

incurred during the period of his treatment or to prove his monthly

income. But still the tribunal awarded Rs. 2500/- for the cost of

treatment as well as purchase of medicines; Rs. 2500/- for special diet;

Rs. 2500/- for conveyance expenses. I, therefore, do not find any

justification for any enhancement under these heads.

11. As regards compensation of Rs. 5000/- for pain and agony

suffered by the injured appellant, I feel that the same is inadequate.

The injured deposed that he remained in Deen Dayal Upadhyay

Hospital for about a week, although his treatment continued for about

5-6 months and even after 5-6 months, he could not work for a year

and the same has not been rebutted. Considering this, I feel that surely

he must have suffered great pain and agony and Rs. 5000/- in this

regard do not seem to be just and fair, thus the same is enhanced to

Rs. 25,000/-.

12. The tribunal has awarded Rs. 26,520/- on account of permanent

disability to the extent of 20%. While estimating future loss of income,

the effect of the earning capacity ought to be judged in the light of the

importance of the loss of permanently impaired limb in the vocation or

profession or employment career of the injured person. The nature of

work or business has to be considered and the extent of disablement

cannot be indifferent to the nature of the work. The injured suffered

40% disability due to which, he could not join his avocation. The

tribunal has observed in the award that the disability certificate

suggested above 40% disability but since the appellant did not

examine the doctor who had issued the disability certificate. The

tribunal assessed the compensation towards the loss of income after

considering 20% disability. It is no more res integra that mere placing

documents on record is not sufficient, it is equally essential that the

same are duly proved on record. I consider that finding of the Tribunal

in this regard is justified. Therefore, I do not feel inclined to interfere

with the award on this count.

13. As regards the income of the appellant, the tribunal has assessed

the income of the appellant, as that of a semi-skilled workman, in

accordance with the Minimum Wages Act, since nothing was brought

on record to prove the income of the appellant. It is no more res

integra that mere bald assertions regarding the income of the

deceased are of no help to the claimants 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

deceased learned Tribunal should determine income of the deceased

on the basis of the minimum wages notified under the Minimum Wages

Act. Therefore, the tribunal rightly assessed the income as per the MW

Act.

14. As regards the future prospects I am of the view that there is no

sufficient material on record to award future prospects. Therefore, the

tribunal committed no error in not granting future prospects in the

facts and circumstances of the case.

15. As regards the contention of the counsel for the appellant that

the tribunal erred in applying the multiplier of 13 in the facts and

circumstances of the case, I feel that the tribunal has committed error.

This case pertains to the year 1989 and at that time II schedule to the

Motor Vehicles act was not brought on the statute books. The said

schedule came on the statute book in the year 1994 and prior to 1994

the law of the land was as laid down by the Hon'ble Apex Court in

1994 SCC (Cri) 335, G.M., Kerala SRTC v. Susamma Thomas. In

the said judgment it was observed by the Court that maximum

multiplier of 16 could be applied by the Courts, which after coming in

to force of the II schedule has been raised to 18. In the facts of the

present case I am of the view that after looking at the age of the

appellant, being 32 years at the time of the accident, the multiplier of

15 should have been applied. Therefore, in the facts of the instant case

the multiplier of 15 shall be applicable.

16. 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.

17. On the basis of the above discussion, the income of the appellant

taken as Rs. 848/- per month or Rs. 19,176/- per annum. After

considering 20% disability and after applying multiplier of 15 the loss

of income comes to Rs.30,528/-.

18. Therefore, Rs.2,500/- is awarded towards special diet, Rs. 2,500/-

conveyance expenses & Rs. 2,500/- towards medical expenses;

Rs.25,000/- for mental pain & sufferings & Rs.30,528/- for permanent

disability. Accordingly, the total compensation comes out as Rs.

63028/-.

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

enhanced to Rs. 63028/- from Rs. 39,020/- with interest @ 7.5% per

annum on the 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.

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

6.4. 2009                              KAILASH GAMBHIR, J.