Girdhari Lal vs Sri. Bhagwan & Anr.
2009 Latest Caselaw 1196 Del

          * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      FAO No. 171/1999

                       Judgment reserved on: 02.04.2008
%                      Judgment delivered on: 06.04.2009


Girdhari Lal                                 ...... Appellant
                       Through: Mr. O.P. Mannie, Adv.

                       versus


Sri Bhagwan & Anr.                          ..... 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 Claim Tribunal on 12.1.99 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs.50,000/- 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. On 01.08.91, Girdhari Lal, appellant had boarded DTC bus no.

DEP 9784 from Azadpur. At Wazirpur Depot-I,the driver slowed down

the bus and when the appellant was in the process of getting down,

the driver abruptly started the bus with a jerk due to which the

appellant fell down and sustained injuries.

4. A claim petition was filed on 20.9.91 and an award was made on

12.1.99. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. 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, by submitting

that the Tribunal awarded a sum of Rs.5000/- towards mental pain &

suffering but the counsel shows his discontent to that and averred

that it should have been Rs.30,000/-. For permanent disablement

also he sought enhancement from Rs. 20,000/- to Rs. 50,000/-. He

further submitted that Ld. Tribunal erred in not paying any

compensation for the disfigurement of the appellant resulting in

permanent disability, loss of leave and remote chances of promotion.

Ld.counsel further shows his discontent that no amount towards loss

of enjoyment of life and amenities has been granted by the

Tribunal. Further the counsel pleaded that the counsel erred in

awarding an interest of 12% pa instead of 24% pa.

6. Nobody has been appearing for the respondents.

I have heard the counsel for the appellant 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. 5,000/- for expenses

towards medicines; Rs.5,000/- for special diet; Rs.5,000/- for

conveyance expenses; Rs.10,000/- for future medical expenses; Rs.

5,000/- for mental pain and sufferings & Rs.20,000/- towards

permanent disability.

9. On perusal of the award, it is manifest that the appellant

examined Dr. Shiv Shankar Saha, a plastic surgeon who deposed that

he conducted an operation on the right lower eyelid of the appellant

and for it the appellant was charged at Rs. 8,500/- and the appellant

also placed the said bill on record. The said doctor also said that the

appellant had to undergo another operation costing Rs. 10,000-

15,000/-. As regards medical expenses, the tribunal took cognizance of

the fact that the appellant sustained serious injuries on his face & eyes

and awarded Rs.5000/- towards medicines and Rs.10,000/- on account

of future medical expenses. I feel that since the appellant proved his

expenses to the extent of Rs. 5,000/- towards operation of eyelid

therefore in the absence of any evidence no further medical expenses

can be allowed. The tribunal has already awarded Rs. 5,000/- towards

medical expenses and further Rs. 10,000/- towards future medical

expenses. Thus, no interference is warranted to modify the award

under these heads.

10. As regards conveyance expenses, nothing has been brought on

record. The appellant suffered eye/face injuries. The tribunal after

taking notice of this fact considering that for the treatment of such

injuries he would have visited hospital as out-patient, and even in the

absence of any cogent evidence, awarded Rs. 5000/- for conveyance

expenses. I do not find any infirmity in the order in this regard and the

same is not interfered with.

11. 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 took notice of the fact that

since the appellant sustained serious injuries in eye/face thus he must

have also consumed protein-rich/special diet for his early recovery and

awarded Rs.5,000/- for special diet expenses. I do not find any infirmity

in the order in this regard and the same is not interfered with.

12. As regards mental pain & suffering, the tribunal awarded Rs.

5,000/- to the appellant. The appellant sustained injuries on face and

eyelid. Undoubtedly, face and area around eyes are quiet sensitive

parts of the body and the appellant must have gone through a lot of

physical pain and mental and emotional suffering. In such

circumstance, I feel that the compensation towards mental pain &

suffering should be enhanced to Rs.15,000/-.

13. As regards the compensation towards permanent disability, I feel

that the tribunal has erred in not awarding the same. As per Award, the

appellant is a Govt. servant. and he suffered permanent disability of

15% as per the disability certificate issued from the RML hospital,

which was duly proved on record. The appellant sustained injuries on

face and eyelid. The face and area around eyes are quiet sensitive

parts of the body such injuries must have reduced the potential of the

injured. I feel that the compensation in this regard should be enhanced

to Rs. 50,000/- for permanent disability and disfigurement of the

appellants face.

14. As regards loss of amenities, 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, which in essence, 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. 15,000/-.

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

appellant was brought on record. Furthermore, there is no proof as to

how long the appellant remained away from job and whether during

that period he was not paid salary. Therefore, righly the tribunal did

not award anything under this head.

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 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%

p.a. by the tribunal and the same is not interfered with.

17. Therefore, from the above discussion, Rs. 5000/- is awarded for

expenses towards medicines; Rs.5,000/- for special diet; Rs.5,000/- for

conveyance expenses; Rs.10,000/- for future medical expenses; Rs.

15,000/- for mental pain and sufferings; Rs. 15,000/- for loss of

amenities of life & Rs.50,000/- towards permanent disability.

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

enhanced to Rs.1,05,000/- from Rs. 50,000/- along with interest @

7.5% per annum from the date of institution of the present petition till

realisation of the award. Respondents are jointly and severally liable to

pay the awarded amount to the appellant, however, respondent No. 2

being employee shall make the payment to the appellant.

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

06.04.2009                                    KAILASH GAMBHIR, J