Sohnu @ Sonu vs Rajesh Guwa
2009 Latest Caselaw 1488 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
                      FAO APP.NO. - 32/99



                          Judgment reserved on : 17.01.2008
                          Judgment delivered on: 20.4.2009

Sohnu @ Sonu                                  ..... Appellants.
                          Through:      Mr. J. S. Kanwar, Advocate

                          versus

Rajesh Guwa                                       .... 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
     in the Digest?                                                  No


KAILASH GAMBHIR, J.

1. The present appeal arises out of the impugned order passed by

the Learned Motor Accident Claims Tribunal vide order dated 16 th

FAO No. 32/1999 Page 1/8 October 1998 in an injury case. The Tribunal vide the said order

awarded a compensation of Rs. 8,000/- along with interest @ 12% pa

from the date of filing of the petition till realization.

2. Brief facts of the case are as follows: -

3. The claimant appellant Mr. Sohnu @ Sonu, aged 24 years was

working as a constable home guard earning a daily pay of Rs 36.60/-.

On 3/5/1990 at about 10 p.m. when he was going to P.S. Seelampur

with another constable to attend to his duty he met with an accident at

road no. 66 near Gali No. 21, Jabrabad with a Maruti car bearing

registration No. DBB 5439, which was being driven in a rash and

negligent manner by its driver. His left leg was fractured in this

accident.

4. The present appeal is preferred for enhancement of award

passed by the Tribunal. Learned counsel for the appellants, Mr. J.S.

Kanwar, submitted before this court that the award of compensation of

Rs. 8,000/- passed by the Learned Tribunal is inadequate and against

the mandate of law laid down by the Hon'ble Apex Court. He urged

that the Tribunal has not awarded any compensation for the loss of

income for period of 6 months, as the injured claimant could not work

for the said period. The counsel submitted that the tribunal erred in not

FAO No. 32/1999 Page 2/8 granting compensation towards loss of amenities, temporary/partial

disablement and loss of earnings during the period of treatment. He

contended that Tribunal should have awarded compensation for loss of

amenities as he was removed from the job as a consequence of the

injury sustained by him in this accident. He further urged enhancement

of the amount awarded towards the head of pain & sufferings and the

compensation for medical expenses. It was contended by him that the

Tribunal awarded a meager amount of Rs. 5,000/- towards the pain

and suffering caused to the claimant, and the amount of Rs. 3,000/-

towards medical expenses is also on the lower side. Counsel stated

that the compensation for the pain & suffering caused should be

enhanced and for the medical expenses, conveyance and special diet

the said compensation should be Rs. 13,000/-.

5. Counsel further contended that the monthly income of the injured

claimant was about Rs. 1100/- and as he was disabled for a period of

six months, he is entitled to be compensated with the loss of income

for the said period, i.e. Rs. 6600/-.

6. Nobody has been appearing for the respondents.

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

record.

FAO No. 32/1999 Page 3/8

8. On perusal of the award it comes in to light that the appellant did

not produce anything on record to show that he spent Rs. 13,000/-

towards medical expenses, conveyance and special diet. Also it is

manifest that he has not been able to prove by any cogent evidence

that he was earning Rs. 36.60 per day i.e. Rs. 1100/- per month. The

employment certificate dated 16th July 1996, which has been brought

on record, only shows that the appellant served since 9.11.89 to

23.2.93 but nothing has been brought on record to show his income.

The witness brought on record by the appellant claimant has also not

been of much help to him. Neither a doctor has been brought before

the court nor any disability certificate has been brought on record. On

perusal of award it also comes to light that no cross-examination was

put to the appellant, PW 4 about his salary and expenses incurred by

him on his treatment. PW 6, Sh. Hira Lal deposed that allowance is paid

to the home guard only on his attending to his duty and if a home

guard does not attend to his duty, he is not paid his salary.

9. It is settled law that mere bald assertions regarding the income of

the deceased are of no help to the claimants in the absence of any

reliable, reasonable and cogent evidence being brought on record. In

FAO No. 32/1999 Page 4/8 this regard the Hon'ble Apex Court has in Oriental Insurance Co.

Ltd. v. Meena Variyal,(2007) 5 SCC 428 observed as under:

"It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer company? Is there anything in the Motor Vehicles Act, which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think not. Here again, the position that the Motor Vehicles Act vis--vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the income that was being derived by the deceased from his employment."

10. 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.

11. No compensation has been granted to the appellant for loss of

earning for the period of 6 months, during which he was under medical

treatment and could not work. The tribunal has not granted any

compensation towards loss of earnings as the employment certificate

FAO No. 32/1999 Page 5/8 dated 16th July 1996, which has been brought on record, only shows

that the appellant served since 9.11.89 to 23.2.93 but nothing has

been brought on record to show if he was being paid for the said

period or not. But, PW 6, Sh. Hira Lal deposed that allowance is paid to

the home guard only on his attending to his duty and if a home guard

does not attend to his duty, he is not paid his salary. Therefore, I am of

the view that the appellant should be awarded loss of salary for the

period of 6 months, when he was unable to earn. Taking aid of the

Minimum Wages Act, the wages of unskilled workmen as on 3/5/1990,

i.e. the date of the accident was Rs. 767 pm, therefore, for a period of

6 months the wages would come out to Rs. 4602/-. Therefore, Rs.

4602/- is awarded to the appellant for loss of earning.

12. Also, it is the duty of the appellant to show that he incurred

expenses on medical treatment, special diet and conveyance. In the

absence of same, the tribunal cannot rely on mere assertions. In this

regard, in Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197 the

Hon'ble Supreme Court observed as under:

"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 into account.

In case of pecuniary damages, loss of earning or earning capacity, medical, hospital and nursing expenses, the loss of matrimonial prospects, if proved, are required to FAO No. 32/1999 Page 6/8 be considered. In the case of non-pecuniary losses, loss of expectation of life, loss of amenities or capacity for enjoying life, loss or impairment of physiological functions, impairment or loss of anatomical structures or body tissues, pain and suffering and mental suffering are to be considered. But for arriving at a particular figure on each of the aforesaid heads, the claimant is duty-bound to produce relevant materials, on the basis of which, a determination could be made, as to what would be the best compensation."

13. Even in the absence of documentary evidence the tribunal

awarded Rs. 5,000/- towards pain & sufferings and Rs. 3,000/- towards

medical expenses, conveyance and special diet.

14. Considering that the appellant suffered injuries and his left leg

was fractured, I feel that even the same could be enhanced and

therefore, compensation towards pain & sufferings is enhanced to Rs.

10,000/- and compensation towards medical expenses, conveyance

and special diet is enhanced to Rs. 10,000/-.

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

enhanced to Rs. 24,602/- from Rs. 8,000/- with interest @ 12% per

annum.

16. I do not find any other ground for enhancement.

FAO No. 32/1999 Page 7/8

17. The respondent insurance company shall be liable to pay to the

appellant, Rs. 24,602/- with interest @ 7.5% pa from the date of filing

of the petition till realisation.

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

20.4.2009                                   KAILASH GAMBHIR,J.




FAO No. 32/1999                                                   Page 8/8