Sri Pal Singh Raghav vs Murthi Singh & Ors.
2009 Latest Caselaw 1681 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      FAO NO.367/99


                       Judgment reserved on: 5.3.2008
%                      Judgment delivered on: 27.4.2009


Sri Pal Singh Raghav       .                 ...... Appellants
                       Through: Mr. O.P. Mannie, Adv.

                                  versus


Murthi Singh & Ors.                        ..... Respondents
                       Through: Mr. J.N. Aggarwal, 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 07.05.99 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs.20,000/- 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 30.7.94 at about 1.15 p.m, the appellant was travelling in DTC

bus no. DBP 6137. When the bus reached the bus stop of Mayur Vihar

Ph.III, it was stopped by the driver respondent no.1 and a number of

passengers got down. While, the appellant was in the process of alighting

from the bus respondent no.1 all of a sudden started the bus. As a

result of sudden movement of the bus, heel of right leg came under the

front wheel of the bus. The petitioner fell down and sustained fracture in

his right leg. A number of persons had helped him in extricating him from

underneath the bus. The petitioner was taken to ESI Hospital and

remained unconscious upto 30.7.94. He was discharged on 09.08.94. The

petitioner informed his brother. Thereafter on 09.08.94 a complaint was

lodged with the complaint cell of DTC. When the appellant was informed

that lodging of complaint with DTC will not be sufficient, therefore the

appellant lodged report with Police on 6.10.94.

4. A claim petition was filed on 06.01.95 and an award was passed on

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

of the present appeal.

5. Sh. O.P.Mannie 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 the

amount of compensation granted towards medical 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 leg,

the learned Tribunal must have considered awarding that amount.

Enhancement is also claimed on the ground that a sum of just Rs. 2000/-

is awarded towards conveyance & special diet instead of the claim of

Rs. 33,000/- . The Tribunal awarded a sum of Rs. 16,000/- towards

mental pain & suffering but the counsel shows his discontent to that

as well and averred that it should have been Rs.50,000/-. For

permanent disablement he states that no amount has been paid by

the tribunal while minimum compensation under no fault liability is

Rs.25,000/- if some one suffers permanent disability. It is further

submitted that the appellant could not be regularised in service due to

his prolonged absence from duty. It is further averred that the tribunal

has not granted compensation for permanent disability while as per

certificate disability to the extent of less than 40% has been mentioned.

Further the counsel has pleaded that no compensation has been

awarded for loss of enjoyment of life and other amenities of life. Further

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

12% pa only for three years and the tribunal ought to have awarded

interest @ 24% p.a. From the date of filing of the petition till realization.

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

7. In a plethora of cases the 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. 2000/- for

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

expenses; and Rs.16,000/- for mental pain and sufferings;.

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

had not placed on record any bill. As regards medical expenses, the

tribunal took cognizance of the fact that the appellant sustained fracture

in leg and awarded Rs.2000/- even though the appellant could not prove

that he had incurred Rs.2000/- towards medical expenses. Keeping in

view the fracture suffered by the appellant,the amount of towards

medical expenses is enhanced to Rs.5000/-.

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

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

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

awarded Rs.2000/- for conveyance and special diet. The appellant

sustained fracture in the year 1994. He must have also consumed

protein-rich/special diet for his early recovery. Therefore, the expenses

for special diet and conveyance are enhanced to Rs.10,000/-.

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

16,000/- to the appellant. The appellant sustained fracture of his right

leg. In such circumstance, I feel that the compensation towards mental

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

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

that the tribunal has erred in not awarding the same. The appellant met

with the accident on 30.7.94. The minimum wages in the year 1994 was

Rs.53.15 per day or 1382/- p.m. The appellant has placed disability

certificate on file showing disability to be less than 40%. The disability of

the appellant has been given to be less than 40%. There is no exact

disability assessed by the board of doctors. I take the disability to be

20%. The monthly loss to the appellant comes to Rs. 276.40 p.m or

Rs.3317/- p.a. After applying the appropriate multiplier of 15 at the age

of 40 years, the amount comes to Rs.49,755/-. Therefore, after

considering all these factors, the compensation towards disability is

awarded at Rs. 49,755/- to the appellant.

13. 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/- .

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

appellant was brought on record. The tribunal has not awarded any

compensation for loss of earnings for the period during which the

appellant could not work. The appellant has stated his income to be

Rs.1800/-p.m. in the petition. But there is no proof available on file. It is

no more res integra that mere bald assertions regarding the income of

the deceased are of no help to the claimants in the absence of any

reliable evidence being brought on record. The thumb rule is that in the

absence of clear and cogent evidence pertaining to income of the

deceased learned Tribunal should determine income of the deceased on

the basis of the minimum wages notified under the Minimum Wages Act.

The tribunal ought to have assessed the income of the appellant in

accordance with the minimum wages of a un/semi/skilled workman,

notified under The Minimum Wages Act on the date of the accident,

which was Rs.1382/- per month. The appellant sustained fracture in his

leg and taking that he could not have worked for about six months, the

loss of income would have come to Rs.8,292/-. The compensation

towards loss of income is taken at Rs.8292/-.

15. As regards the issue of interest that the rate of interest of 12% p.a

for three months awarded by the tribunal is on the lower side and the

same should be enhanced to 24% p.a. from the date of filing of the

petition till realization, 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, change of economy,

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 @ 12% pa

by the tribunal. However, I award the said interest from the date of filing

of the petition till realisation.

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

treatment; Rs.10,000/- for special diet and conveyance expenses;

Rs.8292/- for loss of wages; Rs.10,000/- for loss of amenities and

enjoyment of life & Rs.49,530/- for permanent disability and Rs.25,000/-

for pain and sufferings.

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

to Rs. 1,07,830/- from Rs. 20,000/- 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 should be paid to the appellant by

the respondents as directed by the tribunal and within 30 days of this

order.

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

 April 27, 2009                               KAILASH GAMBIR, J