Sushil Kumar vs Ramesh Kumar & Ors.
2009 Latest Caselaw 1338 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                   FAO No. 626/2002

                            Judgment reserved on: 21.2.2008

                            Judgment delivered on: 13.04.2009




Sushil Kumar                             ..... Appellant.
                               Through: Ms.Manjeet Chawla,Adv

                   versus


Ramesh Kumar & Ors.                   ..... Respondents
                              Through: Mr. Kanwal Chaudhary,Adv.



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 31.7.2002

for enhancement of compensation. The learned Tribunal awarded a FAO No. 626/2002 page 1 of 10 total amount of Rs.1,78,000/- with an interest @ 9% PA for the

injuries caused to the claimant appellant in the motor accident,

after attributing contributory negligence upon the petitioner to the

extent of 25%.

2. The brief conspectus of facts is as under:

3. On 12.10.95 at about 10 P.M. the petitioner was driving tempo

bearing registration no.DBL-9112 and when he reached at gate

no.3 of Yamuna Sports Complex, all of a sudden a bus bearing

registration no. DL-1P-2973 being driven by the driver of the

offending vehicle in a rash and negligent manner hit the tempo.

Consequently, the tempo was badly damaged and the petitioner

sustained multiple grievous injuries.

4. A claim petition was filed on 19.1.96 and an award was made

on 31.7.2002. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Ms. Manjeet Chawla, counsel for the appellant claimant urged

that the award passed by the learned Tribunal is inadequate and

insufficient looking at the circumstances of the case. She assailed

the said judgment of Learned Tribunal firstly, on the ground that

the tribunal erred in assessing the income of the claimant FAO No. 626/2002 page 2 of 10 appellant at Rs. 1969/- PM and submitted that the same should

have been Rs. 3000/-Based on this, it was further contended that

the loss of income should also be enhanced, accordingly. The

Counsel also expressed her discontent on the amount of

compensation granted towards medical expenses. She urged for

an amount of Rs.2,50,000/- towards the medical treatment and

expenses. The claimant appellant is not able to produce medical

bills to claim the stated amount, but the counsel contended that

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

the claimant was treated for multiple injuries, the learned Tribunal

should have considered awarding that amount. Enhancement is

also claimed on the ground that a sum of just Rs. 5,000/- is awarded

towards conveyance instead of the claim of Rs.10,000/-. Amount

towards the special diet is also sought to be enhanced from

Rs.5,000/- to 10,000/-. The Tribunal awarded a sum of Rs.30,000/-

towards mental pain & suffering but the counsel shows his

discontent to that as well and averred that it should have been

Rs.60,000/-. For permanent disablement also he sought

enhancement from Rs. 25,000/- to Rs. 1,00,000/-. Further the

counsel pleaded that the tribunal erred in awarding an interest of

12% p.a instead of 9% pa.

FAO No. 626/2002 page 3 of 10

6. On the other hand, counsel for the respondent Mr. Kanwal

Chaudhry submitted that since in fact the appellant injured himself

had contributed to the cause of said accident as he was found

driving in an intoxicated state. Thus 25% contributory negligence

was attributed to him. The counsel urged that the award passed by

the Tribunal is just and fair and requires no interference by this

Court.

7. I have heard counsel for the parties and perused the award.

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 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:

FAO No. 626/2002 page 4 of 10 "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 has awarded Rs. 98,518/-for

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

25,000/- towards loss of amenities of life, Rs. 30,000 for mental

pain and sufferings; Rs.50,000/- on account of permanent disability

Rs. 23,628/- on account of loss of earnings.

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

placed on record various medical records and bills Ex. PW1/1 to Ex.

FAO No. 626/2002 page 5 of 10 PW1/138, which comes to a total of Rs.98,518/- and, therefore, the

Tribunal awarded the said amount under the head of medical

expenses. In the absence of any proof of the appellant having spent

more than the said amount towards medical expenses no

interference can be made by this Court, therefore, no interference

is made in this regard.

11. As regards conveyance expenses, nothing has been brought

on record. The appellant suffered multiple injuries. The tribunal

after taking notice of this fact and in the absence of any cogent

evidence awarded Rs.5,000/- for conveyance expenses. I do not

find any infirmity in the order in this regard and the same is not

interfered with.

12. 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 multiple injuries 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.

FAO No. 626/2002 page 6 of 10

13. As regards mental pain & suffering, and loss of amenities the

tribunal has awarded Rs.30,000/- and Rs.25,000/- respectively to

the appellant. The appellant sustained multiple grievous injuries In

such circumstance, I feel that the compensation towards mental

pain & suffering and loss of amenities in the facts of the present

case does not require any interference.

14. As regards the compensation towards permanent disability,

vide Ex. PW1/171 it has come on record that the appellant suffered

permanent disability to the extent of less than 40% due to incorrect

joining of the fractured bones. The income of the appellant has

been assessed by the Tribunal at Rs. 1969/- p.m. and multiplier of

12 should be applied as assessed by the Tribunal. Therefore,

compensation in this regard is assessed at Rs. 1,13,414/- (1969 x

12 x 12 x 40/100).

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

the appellant was brought on record. Therefore, the Tribunal

assessed the income in accordance with the Minimum Wages Act

The tribunal assessed income of the appellant at Rs. 1969/- pm and

awarded Rs. 23,628/- towards loss of income for one year, the

period during which the appellant could not work. The period during

FAO No. 626/2002 page 7 of 10 which the appellant could not work, Ex. PW 1/84 to 86 shows that

the appellant stayed away from work for about an year. 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. The tribunal rightly assessed the income of

the appellant in accordance with the minimum wages of a skilled

workman, notified under The Minimum Wages Act on the date of

the accident, which was Rs. 1969/- per month and thus loss of

income would come to Rs. 23,628/-. Therefore, no interference is

made in the award.

16. The tribunal has attributed contributory negligence to the

extent of 25% upon the petitioner and has given justifiable reasons

for it. There is nothing on the record to warrant any interference

in the finding of the tribunal in this regard.

17. As regards the issue of interest that the rate of interest of 9%

p.a. awarded by the tribunal is on the lower side and the same

FAO No. 626/2002 page 8 of 10 should be enhanced to 12% 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 @

9% pa by the tribunal and the same is not interfered with.

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

enhanced to Rs.2,25,420/- from Rs. 1,78,000/- along with interest @

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

till realisation of the award and the same should be paid to the

appellant by the respondent insurance company.

FAO No. 626/2002 page 9 of 10

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

13.4.2009                              KAILASH GAMBHIR, J.




FAO No. 626/2002                              page 10 of 10