Nirmala Devi vs Smt.Surjit Kaur & Anr
2009 Latest Caselaw 1334 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                          FAO No. 579/99

        Judgment reserved on:        13.3.2008

        Judgment delivered on: 13.4.2009.

Nirmala Devi                                          ..... Appellant.

                        Through: Mr. O.P. Mannie, Adv.

                            Versus

Smt. Surjit Kaur & 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 dated 9 th

September 1999 of the Motor Accident Claims Tribunal whereby

the Tribunal awarded a sum of Rs. 1,04,464/- along with interest

@ 9% per annum to the claimants.

2. The brief conspectus of the facts is as follows:

3. On 17th March 1995 at about 2 P.M. the appellant and her

husband were coming in a truck bearing license No. UHN 1911

from Sikandarabad to Dadari along with their household goods.

When the said truck reached Aalu Cold Store, Sikandarabad, the

driver of the truck lost control of the truck, as the truck was

being driven in a rash and negligent manner and at a fast speed.

Resultantly, truck turned turtle on account of its driver loosing

control over it and as a result, claimant appellant's hand came

under the truck and same had to be amputated.

4. A claim petition was filed on 23 May 1995 and an award was

passed on 9.9.99. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. The appellant has assailed the said award on quantum of

compensation. Counsel for the appellant contended that the

tribunal erred in assessing the income of the appellant at Rs.

1,495/- per month whereas after looking at the facts and

circumstances of the case the tribunal should have assessed the

income of the appellant at Rs. 1,800/- per month form the

knitting and stitching work and an additional Rs 3,000/- per

month for the household work which she was unable to do

because of the loss of one limb. The counsel submitted that the

tribunal erroneously applied the multiplier of 14 while computing

compensation when according to the facts and circumstances of

the case multiplier of 18 should have been applied. It is also

contended by the learned counsel for the appellant that the

tribunal erred in paying a meagre amount of Rs. 2,000/- only for

the pain and suffering caused due to the amputation of left hand

and the actual compensation should have been at least Rs

50,000/-. Further, it is claimed by the counsel that compensation

on account of loss of amenities and future enjoyment of life, for

the loss of expectation of life, and for disfigurement, hardship

and discomfort in life should be awarded. On ground of

expenditure, enhancement from Rs, 2,000/- to 20,000/- is claimed

inclusive of special diet and conveyance etc. The counsel also

raised the contention that the Tribunal erred in not paying

interest on the awarded compensation for the period 23 rd May to

4th August 1998 and awarding an interest of 9% P.A. only and has

claimed a total interest @18% P.A. for the entire period.

6. Nobody has appeared for the respondents.

7. I have heard learned counsel for the appellant and perused

the record.

8. 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 or the

claimants 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."

9. In the instant case the tribunal awarded Rs. 2000/- for

expenses towards medicines, special diet and conveyance; Rs.

2000/- for pain and sufferings; and Rs. Rs. 1,00,464/- on account

of permanent disability to the extent of 40%.

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

had not placed on record any medical bills or vouchers. Nothing

was produced on record to prove the expenses incurred on

special diet and nothing was brought on record to prove the

expenses incurred towards conveyance. But still the tribunal

took cognizance of the fact that the appellant sustained serious

injuries and her left arm was amputated and awarded Rs. 2000/-

towards medical expenses, special diet and conveyance charges,

nevertheless the compensation of Rs. 2000/- towards the same

considering the injuries suffered by the appellant appears to be

quite inadequate and I feel that the same should be enhanced to

Rs. 15,000/-.

11. As regards mental pain & suffering, the tribunal has

awarded Rs. 2000/- to the appellant. The appellant sustained

grievous injury and as a result her left arm was amputated. In

such circumstance, I feel that the compensation towards mental

pain & suffering should be enhanced to Rs. 25,000/-.

12. As regards the compensation towards permanent disability,

I feel that the tribunal has erred in awarding the same after

considering the income of an unskilled workmen. On perusal of

the award it comes in to light that the appellant deposed as PW 1

that prior to the accident she was doing stitching and knitting

work and was earning about rupees 1800/- per month. No

documents in this regard were produced on record and therefore

the Tribunal took aid of the Minimum Wages Act. The appellant

also stated that due to amputation of the left arm she is unable

to do household work. In the fact and circumstances of the case

it would be just and fair that the income of the appellant is taken

in accordance with the wages notified for a semi-skilled workman

under the Minimum Wages Act, which were Rs 1661/- at the time

of the accident. The appellant met with the accident in the year

1995. The age of the appellant at the time of the accident was 30

years, and the 40% disability of the appellant was duly proved on

record. Therefore, the multiplier of 18 shall be applicable on the

facts and circumstances of the case as per Schedule II of Motor

Vehicles Act. Therefore, after considering all these factors, the

compensation towards disability is awarded at

(1661X40/100X12X18) i.e.,Rs. 1,43,510.40 to the appellant.

13. As regards the loss of earning nothing has been brought

on the record to show as to how long the appellant remained

under the treatment. Therefore, the tribunal committed no error

in not awarding compensation under the head of loss of earning.

14. 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 not awarding the same and in the

circumstances of the case same is allowed to the extent of Rs.

25,000/-.

15. As regards the issue of interest that the interest has not

been awarded to the appellant from 23/5/1996 to 4/8/1998, I

consider that the tribunal has justified the same. The tribunal

gave the reasoning for the same that the appellant took a long

time and around two years to conclude her evidence and

examine only three witnesses. The petitioner cannot be allowed

to take advantage of her own wrong. Herein, the appellant herself

caused delay in concluding her evidence and, therefore, I feel

that by not awarding compensation from 23/5/1996 to 4/8/98, the

tribunal did not commit any error. I do not feel inclined to grant

interest for the said period. Thus, no interference is made in this

regard.

16. Therefore, Rs. 15,000/- is awarded towards medical

expenses, special diet and conveyance charges; Rs. 25,000/-

towards mental pain and sufferings; Rs. 1,43,510.40 for 40%

disability suffered by her and Rs. 25,000/- for loss of amenities of

life.

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

enhanced to Rs. 2,08,510/- from Rs. 1,04,464/- along with

interest @ 7.5% from the date of filing of the petition till

realisation and the same should be paid to the appellant by the

respondent insurance company.

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

13.4.2009                                KAILASH GAMBHIR J.