Mohd.Zahid vs Sh Gharish Kumar & Anr
2009 Latest Caselaw 1655 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +              FAO No. 393/2002

%                                  Judgment reserved on: 21.02.2008
                                   Judgment delivered on: 27.04.2009


Mohd.Zahid                                       ...... Appellant
                        Through: Mr. Anil Agarwal, Adv.

versus


Sh. Gharish Kumar & Anr.                  ..... Respondents
                    Through: Mr. Kanwal Chaudhary,Adv

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 26.03.02 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 2,00,651/25 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 30.3.94 the appellant was going on a cycle to his residence

after finishing his duty from Ms. Shyam Opticals near Radhu Palace

Cinema, Shahdara, Delhi. When he reached near Shashi Garden Jhuggies

on Kotla Road, at around 9/10 p.m., four seater No.DLR 572 being driven

by respondent no.1 in a rash and negligent manner came from the side

of Kalyanpuri at a very high speed and hit him. The appellant fell down

on the road and sustained fracture in his left leg, abrasion on left

shoulder, injury on his left upper arm and multiple injuries on all over the

body. His cycle was also damaged in the accident.

4. A claim petition was filed on 21.7.94 and an award was passed on

26.03.2002. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Sh.Anil Agarwal counsel for the appellant claimant claims

enhancement through this appeal. The counsel 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 assessing the

income of the claimant appellant as overtime wages have not been

considered. It is submitted that loss of wages for two years should have

been awarded. The Ld. Tribunal has erred in calculating for 6 months

wages @Rs.1800/- as Rs.8400/- whereas it should have been RS.10,800/-

It is further averred that average income of the appellant ought to have

considered as Rs.4050/-. He further claimed that loss of earning has

wrongly been considered as 25% whereas permanent disability is less

than 40%. The Counsel also expressed his discontent on the amount of

compensation granted towards medical expenses. He claimed an

amount of Rs.40,000/- 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 fracture in leg

and steel road was inserted, the learned Tribunal should have awarded

that amount. Enhancement is also claimed on the ground that a sum of

just Rs. 1000/- is awarded towards conveyance instead of the claim of

Rs. 20,000/-. Amount towards the special diet is also sought to be

enhanced from Rs. 2000/-to Rs.30,000/-. The Tribunal awarded a sum of

Rs.50,000/- towards mental pain & suffering but the counsel shows his

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

1,00,000/-.

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

7. 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."

8. In the instant case the tribunal awarded Rs. 1551/25 for expenses

towards medicines; Rs.2000/- for special diet; Rs.1000/- for conveyance

expenses; Rs.50,000/- for mental pain and sufferings and loss of quality

of life; Rs. 1,37,700/- on account of permanent disability to the extent of

25% and Rs. 8400/- on account of loss of earnings.

9. On perusal of the award, it becomes manifest that the appellant

had placed on record various bills Ex.P1 to P17, which comes to a total of

Rs. 1551.25/-. The appellant suffered fracture in leg and steel rod was

inserted. The appellant was treated in Govt. hospital. The steel rod

inserted in the leg and other medicines are used to be purchased from

the open market. The bills available on file does not include the bill for

steel rod. I therefore enhance the amount to Rs.5000/- for medical

expenses.

10. As regards conveyance expenses, nothing has been brought on

record. The appellant suffered fracture in his leg. The tribunal after

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

awarded Rs.1000/- for conveyance expenses. The accident has taken

place in the year 1994. The amount for conveyance expenses is

enhanced to Rs.5000/-.

11. 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 injuries in his leg thus he must have also

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

Rs.2000/- for special diet expenses. I am inclined to enhance the same to

Rs.5000/-.

12. As regards mental pain & suffering & loss of quality of life, the

tribunal has awarded Rs. 50,000/- to the appellant. The appellant

sustained fracture in his leg. In such circumstance, I feel that the tribunal

has committed no error in awarding the same and the order passed by

the Tribunal is not interfered with.

13. As regards future loss of earning capacity and permanent disability,

the Tribunal has awarded a sum of Rs.1,37,700/-. The Tribunal has taken

the monthly income of the appellant as Rs.1800/- p.m. The plea of the

Ld.counsel for the appellant cannot be considered since the overtime

income is not a fixed income. The disability of 25% has been considered

by the tribunal for assessing the loss of income. The plea of Ld.counsel

for the appellant cannot be taken into consideration because the

disability shown in the medical certificate is for a particular limb and not

for the whole body. I feel that the order passed by the Tribunal in this

respect requires no interference.

14. As regards loss of earnings, no proof regarding income of the

appellant was brought on record. The tribunal assessed notional income

of the appellant at Rs.1800/- pm and awarded Rs.8400/- towards loss of

income for 6 months year, the period during which the appellant could

not work. On multiplying 1800x6 the amount comes to RS.10,800/- and

therefore compensation towards loss of income is taken at Rs.10,800/-.

15. In view of the foregoing, Rs.5000/- is awarded for expenses towards

treatment; Rs.5000/- for special diet; Rs.5000/- for conveyance expenses;

Rs.10800/- for loss of wages; Rs.50,000/- for pain and suffering and loss

of quality of life and Rs.1,37,700/- for future loss in earning capacity.

16. In view of the above discussion, the total compensation is enhanced

to Rs.2,13,500/- from Rs.2,00,651/25 along with interest on the

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

petition till realisation of the award and the same shall be paid to the

appellant by the respondents as directed by the Tribunal and within 30

days of this order.

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

 April 27, 2009                              KAILASH GAMBHIR, J