Smt.Manju Singhal vs Sh Rajbir & Ors.
2009 Latest Caselaw 1649 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 848/2003

                      Judgment reserved on: 29.02.2008
%                     Judgment delivered on: 27.04.2009


Smt. Manju Singhal                       ...... Appellant
                      Through: Mr. Y.R. Sharma, Advocate

                                versus


Sh. Rajbir & Ors.                          ..... Respondents
                      Through: Nemo.


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 1.9.2003 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs.2,53,000/- with an interest @ 9% PA for the injuries

caused to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. On 4.6.96, at about 11:15AM, the appellant was waiting for a bus

at bus stand near D.C. Chowk, sector 9, Rohini, Delhi. At that time, a

bus bearing registration no. DL-1P-5839 being driven by its driver at a

very fast speed in a rash and negligent manner reached at D.C Chowk

near DTC bus stand, Sector 9, Rohini, Delhi and in the meantime, a

truck/tanker bearing registration no. DL-1G-4066 being driven by its

driver rashly & negligently and at a very fast speed came from the side

of Sector-12, Rohini, Delhi and both the vehicles lost their control and

collided with each other with great force. Due to such forceful impact,

the bus after colliding with the truck/tanker mounted on the pavement

and struck against the bus stop and turned turtle, thereby causing

injuries to about 26 persons and fatal injuries to 3 persons. The

appellant received multiple grievous injuries in the accident such as

head injury, injuries on the forehead, crush injury in left hand wrist &

hand, fracture of right thigh, fracture of spinal cord and crush injury in

right leg heel.

4. A claim petition was filed on 21.8.96 and an award was passed on

1.9.2003. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Sh. Y.R. Sharma, 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 contended

that the tribunal erred in awarding only a sum of Rs. 80,000/- on

account of mental pain, agony and sufferings whereas the

appellant had received multiple grievous injuries and she was operated

upon for a number of times and she remained under active treatment

for a long period as per medical records duly proved and Tribunal

should have awarded at least Rs.2,00,000/- on this count. The counsel

further urged that appellant was doing practical training of one year

after completion of two years diploma in Software Technology &

System Management Curriculum which she could not complete

because of the injuries sustained in the accident and has suffered

great future financial loss but Tribunal has not awarded any

compensation under this head. The Counsel further contended that Ld.

Tribunal erred in not awarding any compensation towards leave taken

by her father, brother & his wife as well as for engaging a maid

servant. It was submitted that appellant had to engage a maid

servant to look after her for a period of one year at the salary of

Rs.2000/- per month and appellant has sought Rs.24,000/- on this

count. The Counsel also expressed his discontent on the amount of

compensation granted towards medical expenses. He claimed an

amount of Rs.2,00,000/- towards the medical treatment and expenses.

The claimant appellant is not able to produce medical bills to claim the

stated amount, but he contended that looking at the facts and

circumstance of the case and the fact that the claimant was treated for

grievous injuries such as head injury, cut wound on her left wrist,

fracture on her right thigh, a fracture in her spinal cord and fracture in

her right heel, the learned Tribunal should have considered awarding

of an amount of Rs.2,00,000/-. Further the counsel urged that the

Tribunal erred in awarding an interest of 9% pa instead of 12% pa.

6. Nobody appeared for the respondents.

7. I have heard the counsel for the appellant 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:

"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. 1,44,005.94/- for

expenses towards medicines; Rs. 8775/- for special diet; Rs. 19,225/-

for conveyance expenses; and Rs. 80,000/- for mental pain and

sufferings.

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

placed on record various medical bills and cash memos, which comes

to a total of Rs. 1,02,277/- and Rs. 22,804/-. The appellant had also

placed on record medical bills, Ex. PW2/1 to 7 and Ex. PW8/1 to 35.

Further, bills amounting to Rs. 10,829.94/- have been proved on

record. Further, Rs. 8095/- was paid for her treatment at Prashant

Nursing Home. Also Rs. 600/- was paid towards dressing charges. As

regards medical expenses, the tribunal took cognizance of the fact that

the appellant sustained head injury, injuries on the forehead, crush

injury in left hand wrist & hand, fracture of right thigh, fracture of

spinal cord and crush injury in right leg heel and also considered the

abovementioned charges paid by the appellant awarded Rs.

1,44,005.94/- towards medical expenses. I do not find any infirmity in

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

11. As regards conveyance expenses, Exs. Pw8/22, 26, 27, 29 and

36. The tribunal after taking notice of this fact and also considering the

nature of injuries suffered by the appellant awarded Rs. 19,225/- 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 grievous injuries such as head injury, cut

wound on her left wrist, fracture on her right thigh, a fracture in her

spinal cord and fracture in her right heel thus, she must have also

consumed protein-rich/special diet for his early recovery and awarded

Rs. 8,775/- for special diet expenses. I do not find any infirmity in the

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

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

80,000/- to the appellant. The appellant sustained grievous injuries

such as head injury, cut wound on her left wrist, fracture on her right

thigh, a fracture in her spinal cord and fracture in her right heel. In

such circumstance, I feel that the compensation towards mental pain &

suffering does not require any interference.

14. As regards the compensation towards permanent disability, I feel

that the tribunal has not erred in not awarding the same since no

disability certificate was brought on record in this regard. Thus, no

interference is made on this count.

15. As regards medical attendants, mere averments have come in

the deposition of the witnesses. Considering that the appellant was

most of the time in the hospital and also considering that the said maid

servant was also not brought in the witness box, I do not feel that the

tribunal erred in not allowing compensation under this head.

16. As regards loss of amenities, resulting from the defendant's

negligence, which affects the injured person's ability to participate in

and derive pleasure from the normal activities of daily life, and the

individual's inability to pursue his talents, recreational interests,

hobbies or avocations. Pw8 deposed that the appellant sustained

grievous injuries such as head injury, cut wound on her left wrist,

fracture on her right thigh, a fracture in her spinal cord and fracture in

her right heel and remained admitted in Prashant Nursing Home from

4/6/1996 to 8/6/1996 and thereafter she was shifted to Ganga Ram

Hospital on 8/6/1996 where she remained admitted till 27/6/1996 and

she was again admitted in GR Hospital from 16/8/1996 till 23/8/1996.

In this regard PW5 had proved Exs. PW5/A and B. PW 11 deposed that

appellant was operated for thigh bone fracture and tendon fracture of

femur on 10.6.96 and a rod was put for it. On 15.6.96 she was

operated upon for spine fracture where laminectomy and fixation of

spine was done. He also deposed that upon readmission on 16.8.96

she was twice operated for blackening of thigh skin for which

debryment of the wound was done and later soothing was done. He

also deposed that due to spine injuries she cannot do extra-curricular

activities. Considering that the appellant sustained grievous injuries

such as head injury, cut wound on her left wrist, fracture on her right

thigh, a fracture in her spinal cord and fracture in her right heel, I feel

that the tribunal erred in not awarding compensation under this head

and in the circumstances of the case same is allowed to the extent of

Rs. 25,000/-.

17. As regards loss of earnings to the father, brother and wife of the

brother of the appellant on account of her having been unwell to take

care of her, no proof regarding leave taken by them was brought on

record. Thus, the tribunal rightly did not allow compensation in this

regard.

18. As regards loss of earnings to the appellant nothing has come on

record to prove that she was getting a stipend of Rs. 2,000/- while

taking training at GNIIT. Thus, the tribunal committed no error in not

allowing compensation in this regard.

19. As regards loss of future earnings, the appellant did not continue

with her studies and training after the accident, when she could have

done the same. Since she has decided not to work. Therefore, no

compensation in this regard is made out.

20. 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 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.

21. In view of the foregoing discussion, Rs. 1,44,005.94/- is awarded

for expenses towards medicines; Rs. 8775/- for special diet; Rs.

19,225/- for conveyance expenses; Rs. 25,000/- for loss of amenities of

life and Rs. 80,000/- for mental pain and sufferings.

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

enhanced to Rs. 2,78,000/- from Rs. 2,53,000/- with interest on the

differential amount @ 7.5% per annum from the date of filing of the

petition till realisation and the same shall be paid to the appellant by

the respondent insurance company as directed by the tribunal and

within 30 days of this order.

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

April 27, 2009                         KAILASH GAMBHIR, J.