Satish Chander Jain & Ors vs Subhash Chander & Ors
2009 Latest Caselaw 1671 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO 502/2000


                      Judgment reserved on: 1.4.2008
%                     Judgment delivered on: 27.4.2009


Satish Chander Jain & Ors.                   ...... Appellant
                     Through: Mr. O.P. Goyal, Adv.

                                versus


Subhash Chander & 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 8/9/2000 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 39,685/- with an interest @ 6% PA for the injuries

caused to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. That on 26.6.1982 the appellant, Satish Chander Jain, was driving

his scooter with Shri Rajesh Jain on the pillion seat on road in Channa

Market, Karol Bagh, New Delhi from Ajmal Khan Market towards his

residence and was crossing Channa Market Crossing and when he

crossed more than 3/4 th of the crossing, at that time car No. MXT-

4752 driven rashly, negligently and recklessly by its driver entered the

crossing from left side of the appellant and hit with the front of the car

to the appellant's left side of the scooter with a great force, as a result

of which the appellant was thrown away and received injuries. The car

also dragged the scooter. As a result of being hit by the car, the

appellant received the following injuries:

a)    Fracture left femur - thigh bone fractured.


b)    Fracture left neck of stupula.


c)    Fracture left side ribs number 2 to 9.


d)    Fracture left clavicle (collar bone).




 e)    Traumatize plural effusion left side (lung side).


f)    Abrasion on the back of knee, left shoulder and head injury

      resulting into unconsciousness.

After the accident, the police removed the appellant to the hospital,

where the appellant was given treatment and was indoor patient from

the time of his admission till 11 p.m. and thereafter he was shifted to

Safdrajung Hospital where he remained admitted till 5.8.1982. In

Safdarjung Hospital, the appellant was also put on skeletal traction,

inter coastal drainage was done on the left side in order to drain the

blood which had collected in the plural cavity due to the injuries on the

left side.

4. A claim petition was filed on 24.12.82 and an award was passed

on 8.9.2000. 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 assessing the compensation towards loss of earned

leave of the claimant appellant at Rs. 7100/- for four and a half months

and contended that the same should also be enhanced, considering

that the appellant would have encashed it at the time of retirement,

when he would have been earning Rs. 30,000/- to 40,000/- pm. The

counsel also submitted that the appellant should have been awarded

Rs. 1,00,000/- for delayed promotion. The Tribunal awarded a sum of

Rs. 20,000/- towards mental pain & suffering but the counsel averred

that it should have been Rs. 5,00,000/-. For permanent disablement

also learned counsel sought compensation of Rs. 2,00,000/-. Further

the counsel pleaded that the counsel erred in awarding an interest of

15% pa instead of 6% 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. 9685/- for expenses

towards medicines; Rs. 20,000/- for mental pain and sufferings; Rs.

7100/- for loss of earned leave; and Rs. 10,000/- on account of

permanent disability to the extent of 15%-20% of the left leg.

10. As regards loss of earned leave, the tribunal took notice of the

fact that PW4 A.S. Bhutola, Asst. Office Suptd., BHEL deposed that the

appellant took 4 months and 12 days earned leave, which he could

have encashed and thus, after considering that the appellant was

drawing Rs. 1796.40 pm which had risen to 2116/- pm from 1.8.82 as

per Ex. PW4/B and C. accordingly, he assessed income for July at Rs.

1796/- and Rs. 240/- for June; Rs. 2036/- for July and Rs. 6348/- from

August to October, totaling to Rs. 9224/-. But considering that PW4

deposed that the appellant took 66 days half pay leave, Rs. 2116/- was

deducted in this regard, thus, the compensation under this head was

awarded at Rs. 7100/-. I do not feel any error in this regard. The

tribunal rightly assessed the loss of earned leave at the aforesaid rates

as the compensation in this regard is assessed for the loss which

occurred during the time leave was taken. Thus, no interference is

made in this regard.

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

placed on record various bills Ex. PW8/1 to 2; Ex. Pw3/A1 to A12, which

comes to a total of Rs. 9685/- after making adjustments as the

appellant was reimbursed to the extent of Rs. 5,000/- by his office. As

regards medical expenses, the tribunal took cognizance of the above

fact and awarded Rs. 9685/-, as duly proved on record, towards

medical expenses. I do not find any infirmity in the order in this regard

and the same is not interfered with.

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

record. The appellant suffered 15%-20% permanent disability of the

left leg and also had a fracture of four months from hip to toe of the

left leg. The tribunal after taking notice of this fact and in the absence

of any cogent evidence awarded Rs. 5,000/- for conveyance expenses.

I feel the tribunal erred in not awarding the same.

13. 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 the tribunal did not take notice of the fact that

since the appellant suffered 15%-20% permanent disability of the left

leg and also had a fracture of four months from hip to toe of the left

leg, thus, he must have also consumed protein-rich/special diet for his

early recovery and awarded Rs. 5,000/- for special diet expenses. I feel

the tribunal erred in not awarding the same.

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

20,000/- to the appellant. The appellant suffered 15%-20% permanent

disability of the left leg and also had a fracture of four months from hip

to toe of the left leg. In such circumstance, I feel that the

compensation towards mental pain & suffering should be enhanced to

Rs. 30,000/-.

15. As regards the compensation towards loss of future earning and

permanent disability, I feel that the tribunal has erred in not awarding

the same as per the settled principle of law. The income of the

appellant was duly proved at Rs. 1796.40/- pm. The age of the

appellant at the time of the accident was 32 years, thus multiplier of

15 shall be applied and the 15% to 20% permanent disability of the left

leg of the appellant was duly proved on record as Ex. PW3/B. Which

means 5% disability of the entire body as per the Workman

Compensation Act. Therefore, after considering all these factors, the

compensation towards disability is awarded at Rs. 16168/- (1796.40 x

5/100 x 12 x 15).

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. 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/-.

17. As regards the issue of interest that the rate of interest of 6% p.a.

awarded by the tribunal is on the lower side, 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 @ 6% pa by the tribunal and the

same is not interfered with.

18. In view of the foregoing, Rs. 9685/- is awarded for expenses

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

conveyance expenses; Rs. 30,000/- for mental pain and sufferings; Rs.

7100/- for loss of earned leave; Rs. 25,000/- towards loss of amenities;

Rs. 10,000/- on account of permanent disability to the extent of 15%-

20% of the left leg and Rs. 16,168/- on account of loss of earnings.

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

enhanced to Rs. 1,07,953/- from Rs. 39,685/- 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.

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

April 27, 2009                         KAILASH GAMBHIR, J.