Girish Bahadur Saxena vs Bhola Shankar & Ors.
2009 Latest Caselaw 1346 Del

IN THE HIGH COURT OF DELHI AT NEW DELHI

                  FAO No. 36/2001

      Judgment reserved on:     5th February, 2008.

      Judgment delivered on: 13.4.2009.

Girish Bahadur Saxena.                     ..... Appellant.

                 Through: Mr. J.S. Kanwar, Advocate.

                       Versus

Bhola Shankar & Ors.                 ..... Respondents

Through: Mr. Kalamdeep, Adv. for R-3.

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 2.11.2000 for enhancement of compensation.

The learned Tribunal awarded a total amount of Rs.70,028/-

with an interest @ 12% PA from 11.5.2000 for the injuries

caused to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

On 12.10.95, appellant alongwith his son Kuldeep

Saxena was going on a two wheeler scooter bearing

registration no. DL-5SG-3941 from Seemapuri to Gamri.

The scooter was driven by his son at a normal speed and on

the proper side while he was sitting on the pillion seat.

When their scooter reached Pahla Pushta of Shastri Park at

about 11:15PM, a three wheeler scooter bearing registration

no. DL-1-RB-3163 being driven by R1 in a rash and

negligent manner and at a high speed came from opposite

direction and dashed against the two wheeler scooter on

which appellant was going. Front wheel of three wheeler

scooter struck against the engine portion of the two wheeler

scooter, and the rear of the offending vehicle hit against the

right leg of the appellant, as a result of which appellant as

well as his son alongwith the scooter fell down. Appellant

sustained serious injuries in the accident. A claim petition

was filed on 27.3.96 and an award was passed, on

2.11.2000. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

3. Sh. J.S. Kanwar, 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. He assailed the said judgment of Learned Tribunal

firstly; on the ground that the tribunal erred in awarding

Rs.12,588/- towards medical expenses and he made the

said contention on the basis that appellant incurred more

amount over and above the bills produced by him. The

Tribunal awarded a sum of Rs. 15,000/- towards pain &

suffering but the counsel showed his discontent to that as

well and averred that Ld. Tribunal has not passed

compensation under separate heads as per judgments of

Hon'ble Supreme Court of India and Delhi High Court. It is

further averred that Ld. Tribunal awarded Rs.19,940/- for

loss of earnings for 115 days, the period for which

appellant remained on leave without pay. It was submitted

that Tribunal should have awarded Rs.79,760/- for the loss

of earnings for 484 days. It was further stated by the

counsel that Ld. Tribunal erred in awarding only Rs.15,000/-

for loss of sufferings on account of permanent disability

which is 47% as per the disability Certificate. The Tribunal

held that there was no future loss of earnings and the

counsel assailed the award on the said ground also and

contended that the Ld. Tribunal should have considered the

damages on ground of permanent disability of 47% of lower

limb as the appellant is unable to even walk and perform his

natural activities of life and normal work. Further the

counsel pleaded that the tribunal erred in awarding an

interest for the period from 11.5.2000 instead of allowing

the same from the date of filing of the petition i.e.

27.3.1996.

4. Per contra Sh. Kamal Deep counsel for respondent no.

3 contended that the award passed by the learned tribunal

is just and fair and does not require interference by this

court.

5. I have heard counsel for the parties and perused the

award.

6. 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."

7. In the instant case the tribunal awarded Rs. 12,588/-

for expenses towards medicines; Rs. 7,500/- for special diet

and conveyance expenses; Rs. 15,000/- for mental pain and

sufferings; Rs. 19,940/- on account of loss of earnings and

Rs.15,000/- towards Permanent Disability.

8. On perusal of the award, it is manifest that the

appellant had placed on record various medical records and

bills Ex. PW3/N to U; Ex. P15 to 61, which comes to a total of

Rs. 12,588/- and thus, the tribunal awarded the said amount

towards medical expenses. It is no more res integra that in

order to claim compensation under any head of pecuniary

compensation, the claimant has to prove the amount spent

by him under the said head and in the absence of any proof

compensation cannot be claimed. I do not find any infirmity

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

with.

9. As regards the issue that the tribunal awarded only Rs.

7,500/- as conveyance expenses & special diet expenses, I

feel that the tribunal has already been generous so no

interference is required in the award in this regard since

nothing was brought on record by the appellant to prove the

expenses incurred by him towards conveyance and special

diet expenses. Therefore, the award is not modified in this

regard.

10. As regards mental pain & suffering and loss of

amenities of life, the tribunal awarded Rs. 15,000/- to the

appellant. The appellant sustained fracture in his right leg,

he was operated upon and plates and rods were inserted in

the right leg and were removed subsequently and his right

leg was put in plaster. He also suffered disability to the

extent of 47% in the right lower limb. In such circumstance,

I feel that the compensation towards mental pain &

sufferings and loss of amenities of life, granted by the

Tribunal is inadequate and the same is enhanced to Rs.

30,000/-.

11. As regards the compensation towards future loss of

income, I feel that the tribunal has committed no error in

not awarding the same. The appellant was working as a

peon in a government office at the time of the accident and

he is still working as a peon at the same office. Clearly,

there has been no financial loss to the appellant even after

the accident and is working with the same employer.

Therefore, the tribunal committed no error in not awarding

compensation under the said head. As regard compensation

towards permanent disability, I feel the Tribunal has

committed an error in not suitably awarding the same. The

appellant has proved on record that he has suffered

disability to the extent of 47% of lower limb of the right leg.

I feel compensation of Rs. 15,000/- in the facts of the

instant case is on the lower side, thus, the same is

enhanced to Rs.25,000/-.

12. As regards loss of earnings, the appellant deposed in

the court that he remained on leave from 30.10.1995 to

7.2.1997. He also deposed that he further remained on

leave from 1.4.1997 to 30.4.1997. Pw3 Sh. Hari Shankar

Sharma, Senior Assistant of NDMC, Pallika Kendra, Sansad

Marg proved the leave record of the appellant as Ex. PW3/A

to PW3/I. According to the abovementioned documents,

appellant was on leave without pay only for about 115 days

and not 484 days as claimed by the appellant. Thus, the

tribunal rightly allowed the compensation to the extent of

115 days of leave to the appellant after taking income @

Rs. 4985/- pm as deposed by PW3 for four months, which

amounted to Rs. 19,940/-. I do not find any infirmity in the

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

13. As regards the issue of interest that the tribunal erred

in awarding an interest for the period from 11.5.2000

instead of allowing the same from the date of filing of the

petition i.e. 27.3.1996., I feel that the tribunal ought to have

given reasons for disallowing the compensation for the said

period from 27.3.1996 to 10.5.2000. But on perusal of the

record it comes into light that the appellant had been

negligent in serving the parties and also took a lot of time in

examining the witnesses. No doubt that the MV Act is a

beneficial piece of legislation, legislated with the purpose of

giving relief to the victim of the motor accident but at the

same time, a victim of the motor accident cannot be

allowed to gain benefit out of his own faults and negligence

due to which delay was caused in disposal of the case.

Therefore, the tribunal rightly, disallowed the interest for

the said period, from 27.3.1996 to 10.5.2000, to the

appellant. Therefore, no interference is made in the award

on this count.

14. In view of the foregoing discussion, Rs. 12,588/- is

awarded for expenses towards medicines; Rs. 7,500/- for

special diet and conveyance expenses; Rs. 30,000/- for

mental pain and sufferings and loss of amenities; Rs.

25,000/- on account of future loss of income to the extent of

47% of lower limb of the right leg and Rs. 19,940/- on

account of loss of earnings.

15. In view of the above discussion, the total

compensation is enhanced to Rs. 95,028/- from Rs. 70,028/-

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 no. 3.

16. With the above directions, the present appeal is

disposed of.

13.4.2009                     KAILASH GAMBHIR J.