Kuljit Singh vs Des Raj & Ors.
2009 Latest Caselaw 1661 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 36/1999

                      Judgment reserved on: 1.4.2008
%                     Judgment delivered on: 27.4.2009


Kuljit Singh                                  ...... Appellant
                      Through: Mr. O.P. Goyal, Adv.

                                versus


Des Raj & Ors.                              ..... Respondents
                      Through: Nemo.


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 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 20/5/98 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 89,000/- without any interest for the injuries caused to

the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. That the appellant Kuljit Singh was going driving a motor-cycle

bearing registration No. DDO 9277 with his wife on the pillion seat

along with their minor son from their residence towards Janakpuri on

12.10.1988 at about 8.a.m. and when he reached the Raja Garden

crossing, the appellant stopped the mtoro-cycle since it was red single

fro the appellant and was waiting for the signal to turn green for going

straight. As the red light stop signal for the appellant changed into

green signal, the appellant started crossing and when he had crossed

more than ½ of the crossing at that time a car No. DIC 7959 driven

rashly, recklessly and negligently by respondent No. 1 in due course of

his employment, under respondent No. 2, owner of the car came from

Tilak Nagar side and hit the motor-cycle causing injuries to the

appellant. The appellant received injuries of the nature of fracture

shaft femur right and also received head injury and also suffered

injuries on his right wrist with nerve palsy.

4. A claim petition was filed on 7/4/89 and an award was passed on

20/5/98. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Sh. O.P. Goyal counsel for the appellant claimant urged that the

tribunal erred in awarding meager amount of compensation towards

medical expenses and sought Rs. 50,000/- in this regard. He

maintained that considering the facts of the case. 9,00,000/- should be

awarded for future loss of income. The Tribunal awarded a sum of Rs.

5,000/- towards mental pain & suffering but the counsel shows his

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

3,00,000/-. For permanent disablement also he sought enhancement

from Rs. 50,000/- to Rs. 5,00,000. Further the counsel urged that the

tribunal erred in not awarding an interest in the facts of the present

case. The counsel averred that the tribunal erred in directing Rs.

75,000/- to be kept in FDR for a period of 5 years.

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. 10,000/- for expenses

towards medicines; Rs. 5,000/- for special diet; Rs. 5,000/- for

conveyance expenses; Rs. 2,000/- for keeping medical attendants; Rs.

5,000/- for mental pain and sufferings; Rs. 50,000/- on account of

permanent disability and Rs. 12,000/- on account of loss of earnings.

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

placed on record various medical bills which comes to a total of Rs.

7,500/-. As regards medical expenses, the tribunal took cognizance of

the fact that the appellant sustained serious injuries and developed

neuro problem and also developed sore on his right foot near the ankle

and was operated upon and a rod was inserted in his right femur and

awarded Rs. 10,000/- even though the appellant could not prove that

he had incurred such an amount 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, nothing has been brought on

record. The appellant sustained serious injuries and developed neuro

problem and also developed sore on his right foot near the ankle and

was operated upon and a rod was inserted in his right femur. 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 injuries and developed neuro

problem and also developed sore on his right foot near the ankle and

was operated upon and a rod was inserted in his right femur 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.

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

5,000/- to the appellant. The appellant sustained serious injuries and

developed neuro problem and also developed sore on his right foot

near the ankle and was operated upon and a rod was inserted in his

right femur. In such circumstance, I feel that the compensation

towards mental pain & suffering should be enhanced to Rs. 25,000/-.

14. As regards the compensation towards permanent disability and

future loss of income, the appellant had brought on record disability

certificate Ex. PW7/2 to prove that he suffered 55% disability. But the

said certificate was issued by a private doctor without following the

norms of issue of disability certificate, thus the same cannot be relied

upon. But still the tribunal after considering that the appellant

sustained serious injuries and developed neuro problem and also

developed sore on his right foot near the ankle and was operated upon

and a rod was inserted in his right femur, awarded Rs. 50,000/- in this

regard. I do not feel inclined to interfere with the same.

15. 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. Considering that the appellant suffered

amputation of his toe, 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/-.

16. As regards loss of earnings, the appellant deposed that he

remained under treatment for about 2 years and that prior to the

accident he was taking coaching classes for IX - X std. Students at

their residence and used to charge Rs. 700/- to Rs. 800/- pm. Now

imparting coaching at his residence @ Rs. 300/- pm only. The tribunal

took notice of the fact that the appellant had claimed only Rs. 12,000/-

in his claim petition, therefore, awarded Rs. 12,000/- towards loss of

income. In this regard I feel that the tribunal committed error. It is well

settled and has been discussed in detail by the Hon'ble Apex Court

that the duty of the tribunal is to award just compensation and while

doing that the tribunal can award compensation at a higher rate than

claimed in the petition. In this regard, the following observation of the

Supreme Court in Divisional Controller, KSRTC v. Mahadeva

Shetty,(2003) 7 SCC 197 and State of Haryana v. Jasbir

Kaur,(2003) 7 SCC 484 is reproduced as under:

15. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be "just". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But

at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrariness. If it is not so, it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC 8 .)

17. Therefore, since there was no cogent evidence to prove income

of the appellant, therefore, the income should have been assessed in

accordance with the rates of wages notified under the MW Act for a

skilled workman. Therefore, the loss of income for a period of 2 years

would come to Rs. 17,976/- (749x12x2). Thus, the award is modified in

this regard.

18. As regards the issue that the tribunal deposited Rs. 75,000/- in

the nationalized bank, I feel that the same does not suffer from

infirmity. In Lilaben Udesing Gohel vs. Oriental Insurance Co.

Ltd. - 1996 ACJ 673 (SC) the Hon'ble Apex Court laid broad

guidelines which the Claims Tribunal should follow while disposing of

the claim applications arising under the Motor Vehicles Act, 1939 to

scotch complaints of misapplication of compensation money and that

as per those guidelines the compensation money should be invested in

a nationalised bank as a fixed deposit and the interest thereon should

be paid directly to the claimant or his guardian, as the case may be.

Therein, the Apex Court also held as follows:

8. Before proceeding to enumerate the various grounds on which the impugned judgment is challenged, it would be proper to have a look at the guidelines laid down in the case of Muljibhai 4 . The following part of that judgment needs to be quoted for the purpose:

"6. Having regard to the fact that day in and day out thousands of rupees are paid by way of compensation to various categories of claimants, we think that before we part, we may indicate a few broad guidelines which the Claims Tribunals may follow while disposing of claim applications arising under the Motor Vehicles Act, 1939, to scotch complaints of misapplication of compensation money:

( i ) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long-term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may however be allowed to be withdrawn;

( ii ) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in ( i ) above, but if lump sum payment is required for effecting purchases of any moveable or immovable property, such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;

( iii ) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at ( i ) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding existing business or for purchasing some property as mentioned in ( ii ) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;

( iv ) In the case of literate persons also the Tribunal may resort to the procedure indicated in ( i ) above, subject to the relaxation set out in ( ii ) and ( iii ) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;

( v ) In the case of widows the Claims Tribunal should invariably follow the procedure set out in ( i ) above;

( vi ) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; ( vii ) In all cases in which investment in long-term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;

( viii ) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one fixed deposit so that if need be one such FDR can be liquidated."

This Court in the case of Union Carbide Corpn. v. Union of India 5 SCC (686) referred to the guidelines laid down in Muljibhai

case 4 in laying down guidelines for disbursement of compensation to the gas victims of the well-known Bhopal disaster. The guidelines laid down in Union Carbide case 5 were in spirit quite similar to those laid down in Muljibhai case 4 . The Court, however, did not include the clause regarding literate persons' compensation also to be given the same treatment in case the Court found it necessary to do so to protect the compensation awarded to them.

19. Therefore, the appellant can always seek withdrawal of the said

deposited amount upon proof of exigency. Therefore, no interference is

made in the award on this count.

20. As regards the issue of interest that the tribunal erred in not

awarding an interest at all, I feel that the tribunal ought to have given

reasons for disallowing the compensation for the entire period. On

perusal of the record it comes into light that the petition was filed on

7/4/1989 and issues were framed on 24/2/1992. The appellant

examined seven witnesses and closed his evidence on 22/8/1997.

Clearly, the appellant had been negligent in causing the delay 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. But the tribunal committed error; it should have allowed interest

from 23/8/1997 till realization @ 7% pa and should have disallowed

interest from the date of filing of the petition till 22/8/1997. Therefore,

aforesaid modifications are made in the award on this count.

21. In view of the foregoing discussion, Rs. 10,000/- is awarded for

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

for conveyance expenses; Rs. 2,000/- for keeping medical attendants;

Rs. 25,000/- for mental pain and sufferings; Rs. 25,000/- towards loss

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

17,976/- on account of loss of earnings.

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

enhanced to Rs. 1,39,976/- from Rs. 89,000/- along with interest @

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.

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

April 27, 2009                                KAILASH GAMBHIR, J.