Sham Lal vs Dharamvir & Anr
2009 Latest Caselaw 1325 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            FAO No. 454/2000

                        Judgment reserved on: 7th January,2008
%                       Judgment delivered on: 13.4.2009



Sham Lal                           ...... Appellant
                        Through: Mr. Deepak Goyal, Advocate.

                   versus


Dharamvir & Anr.                     ..... 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                 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 12 th

August 2000 for enhancement of compensation. The learned

Tribunal awarded a total amount of Rs. 1,75,800/- with an interest

@ 12% PA for the injuries sustained by the claimant appellant in the

motor accident.

2. The brief conspectus of facts is as under:

Injured appellant Sh. Sham Lal was a Mason and is said to be

having an income of Rs. 3000/- PM at the time of the accident. On

21st October 1990, he was travelling by a DTC bus bearing

registration no. DEP 9279. At around 9:55 P.M. when the bus

reached near DTC Bus stand, DESU Sub station road, P.S. Okhla

Industrial Area, the injured claimant appellant was trying to get off

the said bus, the bus driver suddenly increased the speed of the

bus as a result of the sudden jerk and loss of balance the injured

claimant fell off from the bus. He consequently fell on the road and

suffered injuries which ultimately led to amputation of left leg

above knee. As per the disability certificate granted by AIIMS he

suffered 100% disability of the left lower limb.

3. The counsel for the appellant claimant claims through this

appeal that the award passed by the learned Tribunal is

inadequate and insufficient looking at the circumstances of the

case. He assails the said judgment of Learned Tribunal on following

grounds: firstly it is contended that the tribunal erred in assessing

the income of the claimant appellant at Rs. 1,500/- PM. He

contended basing his arguments on the oral evidence of the

appellant himself that the same should have been Rs. 3,000/-.

Based on this, it is further contended that the loss of income should

also be enhanced accordingly. The Counsel also expressed his

discontent on the amount of compensation granted towards

medical expenses. He claimed an amount of Rs. 1,80,000 towards

the medical expenses, special diet, conveyance charges and Rs.

30,000/- for mental pain & suffering. Further the counsel contended

that the tribunal erred in awarding an interest of 9% instead of 18%

pm.

4. Nobody has been appearing for the respondents.

5 I have heard counsel for the appellant and perused the award.

5. 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 and fatal accidents the general principle is that

such sum of compensation should be awarded which puts the

injured or the claimants, in case of the fatal accidents matter, 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."

6. In the instant case the tribunal awarded Rs. 10,000/- for

expenses towards medicines, special diet and conveyance

expenses; Rs. 10,000 for mental pain and sufferings, loss of

amenities and expectation of life and Rs. 1, 45, 800 on account of

permanent disability.

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

not placed on record any medical bills and medical vouchers.

Similarly nothing was brought on record to show the expenses

incurred towards conveyance and special diet. The tribunal took

cognizance of the fact that the appellant sustained serious injuries

in the accident and his left leg was amputated and therefore,

awarded Rs. 10,000/- even though the appellant could not prove

that he had incurred Rs 10,000/- towards medical expenses,

conveyance expenses and special diet expenses. I do not find any

infirmity in the order in this regard and the same is not interfered

with.

8. As regards mental pain & suffering, the tribunal has awarded

Rs. 10,000/- to the appellant. The appellant sustained grievous

injuries and his left leg was amputated and now he cannot walk

without crutches. In such circumstance, I feel that the

compensation towards mental pain & suffering should be enhanced

to Rs. 25,000/-.

9. As regards the compensation towards permanent disability the

appellant as PW 1 deposed that prior to the accident he was

working as a mason and was earning Rs. 3000/- p.m. The Income

of the appellant was assessed by the tribunal at Rs. 1500/- p.m.,

after appreciating the entire material on record. I do not see any

justification to interfere in the same. The appellant met with the

accident in the year 1990. The age of the appellant at the time of

the accident was 24 years and the 60% disability of the whole body

of the appellant was duly proved on record. Therefore, the

interests of justice would be best served if the award is not

interfered in this regard.

10. As regards loss of amenities, Compensation for loss of

amenities of life compensates victim for the limitation, 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. In essence, compensation for loss

of expectation of life compensates an individual for loss of life and

loss of the pleasures of living. I feel that the tribunal erred in

awarding the same at rupees 10,000 only and in the circumstances

of the case same is allowed to the extent of Rs. 25,000/-.

11. As regards loss of earnings, the tribunal has assessed the

income of the appellant at Rs. 1500/- p.m., Though nothing has

been brought on record to prove that for how long the appellant

remained under treatment. But keeping in view the injuries

suffered by the appellant and nature of work the appellant was

doing immediately before the accident, I consider that appellant

must have suffered total loss of earning Rs. Two years. Thus

taking monthly income of Rs.1500/- the compensation for loss of

earning is awarded to the tune of Rs.36,000/-.

12. As regards the issue of interest that the interest has been

awarded to the appellant only for a period of five years and that the

tribunal has grossly erred in doing the same. The tribunal gave the

reasoning for the same that the appellant took a long time of

around five years to conclude the evidence and examine the

witnesses. It is on record that issues were framed in March 1995 it

took two years to the appellant to bring the evidence on record and

examine the witnesses. It is also on record that even after a lapse

of two years the appellant sought adjournment for his evidence and

on subsequent dates of 14/10/1997, 26/5/1998, 14/9/1998,

14/6/1999, 13/7/1999 and finally on 2/2/2000 no appellant evidence

was recorded and it was on 2/2/2000 that the trial was concluded. I

feel that tribunal was totally justified on this account and no

interference is called for.

13. Therefore, Rs.10,000/- is awarded towards medical expense,

Rs. 36,000/- towards loss of earnings, conveyance expense and

special diet, Rs. 25,000/- towards mental pain and sufferings,

Rs.1,45,800/- towards permanent disability and Rs.25,000/-

towards loss of amenities.

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

enhanced to Rs. 2,41,800/- from Rs. 1,75,800/- along with interest

@ 7.5 % per annum on the enhanced compensation from the date

of institution of the petition in this court till realisation.

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

13.4.2009                                  KAILASH GAMBHIR, J