Lt.Col.Pradeep Khanna (Retd) vs Shri Ram Babu Ram & Ors.
2009 Latest Caselaw 1676 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO 59/2000


                      Judgment reserved on: 13.3.2008
%                     Judgment delivered on: 27.4.2009


Lt. Col. Pradeep Khanna (Retd.)            ...... Appellant
                     Through: Mr.D.D. Singh, Advocate

                                  versus


Shri Ram Babu Ram & Ors.                  ..... 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            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 07.10.1999 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs.99,561/- with an interest @ 12% PA for the injuries caused

to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. On 5.8.93 when Lt.Col. Pradeep Khanna was going on his scooter

no.DAM 663 from Saket to Panchkuian Road and reached near Shivaji

Stadium,Gole Market at about 10.30 a.m, a TSR bearing registration no.

DAR 1376 being driven by respondent no.1 came in rash manner from

opposite side and while trying to overtake another vehicle, could not

control and overturned and struck with scooter of the petitioner. The

pillion rider of the scooter fell down. The right leg of the petitioner was

broken and he suffered fracture of both bones and right lower leg. He

was treated in various hospital.

4. A claim petition was filed on 31.01.94 and an award was passed on

07.10.99. Aggrieved with the said award enhancement is claimed by way

of the present appeal.

5. Sh. DD Singh 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 awarding pea-

nuts i.e. Of Rs.30,000/- against pecuniary and non pecuniary damages

which is totally unjustified. The appellant remained under treatment for

two years and suffered for long but yet awarded only a paltry sum

towards pecuniary and non-pecuniar damages. The tribunal has erred in

not awarding the amount claimed on account of mental pain, agony and

general damages. It is further contended that the appellant had a large

area of agricultural land and he had to employ attendant numbering

three and the tribunal has disallowed the claim on this account as well as

loss of agricultural income. The tribunal has further erred in not granting

the loss of income in the presence of overwhelming evidence to the

contrary. The appellant had taken premature retirement at the age of 43

years to pursue second career, and did not retire on reaching the age of

superannuation. The tribunal has erred in assessing the loss of salary at

Rs.18,000/- and tribunal has not considered the salary certificate issued

by his employer dated 2.2.94. Based on this, it is further contended that

the loss of income should also be enhanced, accordingly. The Counsel

also expressed his discontent on the amount of compensation granted

towards medical expenses. He claimed an amount of Rs.50,000/-

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 of both legs, Tibia and

Fibula, the learned Tribunal must have considered awarding that amount.

Enhancement is also claimed on the ground that a sum of just

Rs.16,000/- is awarded towards conveyance instead of the claim of

Rs.30,000/- because of air fare paid by the appellant. Ld. Counsel also

shows his discontent towards mental pain & suffering.

6. I have heard the 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 has awarded Rs.15,000/- for

expenses towards medicines; Rs.12,000/- for special diet; Rs.16,000/- for

conveyance expenses; Rs. 5000/- for keeping medical attendants; Rs.

30,000/- for mental pain and sufferings; Rs.2761/- towards loss of income

of wife; and Rs.18,800/- on account of loss of earnings.

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

placed on record various bills, which comes to a total of Rs. 13,700/-. As

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

the appellant sustained fracture in both his legs and awarded Rs.

15,000/- even though the appellant could not prove that he had incurred

Rs.15,000/- towards medical expenses and he could prove bills only for

Rs.13,700/-. I do not find any infirmity in the order in this regard and the

same is not interfered with.

10. As regards conveyance expenses, the appellant has placed three

boarding passes and seven rail tickets. The appellant suffered grievous

injuries. The tribunal after taking notice of this fact has awarded a sum of

Rs. 16,000/- for conveyance expenses. The appellant must have spent

some local conveyance expenses at Nagpur as well as Delhi. Therefore, I

allow total sum of Rs.20,000/- on account of conveyance expenses.

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 fracture in legs thus he must have also consumed

protein-rich/special diet for his early recovery and awarded Rs.12,000/-

for special diet expenses against the claim of Rs.10,000/- claimed in the

petition. I do not find any infirmity in the order in this regard and the

same is not interfered with.

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

30,000/- to the appellant. The appellant sustained fracture in both his

legs. The appellant remained under treatment for about two years. In

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

suffering should be enhanced to Rs.50,000/-.

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

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

disability certificate from competent board has been brought on record.

14. As regards medical attendants no evidence has been led by the

appellant before the tribunal. The appellant has claimed compensation

towards attendants charges incurred by the appellant for two years @

Rs.1500/- pm. But, no documentary proof was given in this regard. The

tribunal has awarded a sum of RS.5000/- under this head. In the facts of

the present case, Rs.10,000/- is awarded in this regard.

15. As regards loss of amenities, Compensation for loss of amenities of

life compensates victim for the limitation, resulting from the defendant's

negligence, on the injured person's ability to participate in and derive

pleasure from the normal activities of daily life, or the individual's

inability to pursue his talents, recreational interests, hobbies or

avocations. In essence, compensation for loss of expectation of life

compensates an individual for loss of life and loss of the pleasures of

living. I feel that the tribunal erred in not awarding the same and in the

circumstances of the case same is allowed to the extent of Rs.10,000/-.

16. As regards loss of earnings, income certificate of the appellant

was brought on record. As per certificate the consolidate salary of

appellant was Rs.12,000/- p.m at the time of leaving service on 30th

Nov.1993. The tribunal has awarded Rs.18,800/- towards loss of income

the period during which the appellant could not work. The tribunal has

awarded compensation for four months by taking salary to be Rs.4706/-

p.m as per income tax return filed by him. The appellant has mentioned

his salary as Rs.4700/- in the petition at the time of accident taken place

on 5.8.93 plus perks and Rs.1100/- from agriculture income. The figure of

perks had not been disclosed. Taking into account the salary of RS.4700

+ agricultural income of Rs.1100/-, the total income of the appellant

comes to RS.5800/- p.m. In the facts of the case, the petitioner could not

have worked for six months since he suffered fracture in both his legs.

Therefore, the compensation for six months comes to Rs. 34,800/-.

17. In view of the foregoing, Rs. 15,000/- is awarded for expenses

towards treatment; Rs.12,000/- for special diet; Rs.20,000/- for

conveyance expenses; Rs.34,800/- for loss of wages; Rs.10,000/- for loss

of amenities and enjoyment of life & Rs.50,000/- for pain and sufferings,

Rs.10,000/- for attendant expenses and Rs.10,000/- for amenities and

loss of enjoyment of life.

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

to Rs. 1,61,800/- from Rs.99,561/- 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 & within 30 days of this

order.

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

April 27, 2009                              KAILASH GAMBHIR J.