Navita Vashishth vs Mohd. Rashid & Ors.
2009 Latest Caselaw 1683 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 216/2002

                      Judgment reserved on: 28.2.2008
%                     Judgment delivered on: 27.4.2009


Navita Vashishth                             ...... Appellant
                      Through: Mr. O.P. Goyal, Advocate

versus


Mohd. Rashid & 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 07.012002 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 8,05,405/- 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:

FAO No.216/02 Page no.1

3. On 03.10.95 the appellant Mrs. Navita Vashisht who is a Post

Graduate in Economics and a young girl of 25 years was riding on a

motorcycle no. DL 8S H 8206 from Faridabad to Pritampura, Delhi.

Appellant was pillion rider while the motorcycle was being driven by her

husband Sandeep Vashisht. At about 4/4.15 p.m they were waiting on

the red-light signal at Maharani Bagh crossing on the ring road. In the

meanwhile a crane bearing registration no. DL 1G A 2559 being driven in

a rash and negligent manner by respondent no.1 Mohd. Rashid came

from behind and dashed against the stationary motorcycle. As a result of

the impact the motorcycle as well as its occupants fell down on the road.

The right leg of the appellant was run over by the front wheel of the

crane. Initially the left leg was amputated below the knee but the surgery

had to be performed over again and the amputation was done three

inches above the knee.

4. A claim petition was filed on 22.1.96 and an award was passed on

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

of the present appeal.

5. Sh. OP Goyal counsel for the appellant/claimant contended that the

tribunal erred in assessing the income of the claimant appellant at

Rs.5000/- PM and he made the said contention on the basis of testimony

of the appellant, stating that the same should have been Rs.11,000/-

p.m. Based on this, it is further contended that the loss of income

should also be enhanced, accordingly. It is further contended that the

FAO No.216/02 Page no.2 tribunal erred in considering the loss of earning capacity to 35% only,

whereas as per certificate of disability it is 80%. The Counsel also

expressed his discontent on the amount of compensation granted

towards medical expenses. He urged for an amount of Rs.1,25,000/-

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's leg was amputated, the learned Tribunal must

have considered awarding that amount. Enhancement is also claimed on

the ground that a sum of just Rs. 10,000/- is awarded towards

conveyance instead of the claim of Rs. 10,00,000/-. The Tribunal

awarded a sum of Rs.1,00,000/- towards mental pain & suffering but

the counsel shows his discontent to that as well and averred that it

should have been Rs.2,00,000/-. For permanent disablement also he

claimed Rs.5.00 lacs whereas no compensation has been awarded on this

account. It is further averred that the tribunal should have awarded a

sum of Rs.10.00 lac for future prospects and enjoyment of life. Ld.

Counsel also claimed a sum of Rs.2000/- p.m for domestic help for a

period of 35 years. Enhancement is also sought for artificial limb to

Rs.4,09,930/-. Further the counsel pleaded that the Tribunal erred in

awarding an interest of 9% pa instead of 18% pa. It is further contended

that the tribunal also went wrong in ordering 75% of the amount

awarded to be kept in a fixed deposit for a period of 25 years and he

FAO No.216/02 Page no.3 claimed that 25% of the awarded amount be kept in FDR for five years.

6. Nobody appeared for respondents.

7. I have heard the counsel for the appellant and have 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

FAO No.216/02 Page no.4 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 has awarded Rs. 90,000/- for

expenses towards medicines & treatment; Rs.5000/- for special diet; Rs.

10,000/- for conveyance expenses; Rs.1,00,000/- for mental pain and

sufferings; and Rs.3,15,000/- on account of loss of earning

capacity/permanent disability to the extent of 35%, Rs.90,270/- for

purchase of two artificial limbs,Rs.1,00,000/- for engaging domestic help,

Rs.50,000/- for loss of amenities of life, loss of life expectancy, frustration

etc.

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

placed on record various bills which comes to a total of Rs. 75,044/-. As

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

the appellant sustained serious injuries and her leg was amputated and

awarded Rs.90,000/-for her treatment. No interference is made in this

regard.

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

record. The appellant suffered serious injuries and her right leg was

amputated. The tribunal after taking notice of this fact and in the

absence of any cogent evidence awarded Rs.10,000/- for conveyance

FAO No.216/02 Page no.5 expenses. No interference in this regard is warranted.

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 she must have also consumed

protein-rich/special diet for her early recovery and awarded Rs.5000/-.

The right leg of appellant was amputated. I am not inclined to

interference with the award in this regard.

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

1,00,000/- to the appellant. The appellant sustained grievous injuries and

her right leg was amputated. In such circumstance, I feel that the

compensation towards mental pain & suffering does not require any

interference.

14. As regards the compensation towards permanent disability & future

loss of income, I feel that the tribunal has erred in not awarding the

same. The income of the appellant was duly proved at Rs.5,000/- pm.

Further on perusal of the award it is manifest that the income of the

injured was Rs.5000/- p.m. She suffered 80% disability. There has been

consistent rise in the earnings of the injured over the period of time and

therefore, the future prospects of the appellant should also be

considered. The age of the appellant at the time of the accident was 25

years and the 80% disability of the appellant was duly proved on record

FAO No.216/02 Page no.6 and the Tribunal awarded Rs. 3,57,000/- in this regard. Considering that

no dispute in this regard is raised by the respondents no interference is

made in this regard.

15. As regards medical attendants, no evidence has been brought on

record expect that the statement of the appellant. Ld. Tribunal has

awarded Rs.1,00,000/- for engaging domestic help. I do not find any

infirmity in this order passed by the Ld. Tribunal on account of domestic

help and the same is not interfered with.

16. As regards loss of amenities due to permanent disabilitiy,

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.2,5,000/-.

17. As regards loss of earnings during treatment, proof regarding

income of the appellant was brought on record. Thus, the Tribunal rightly

did not allow compensation in this regard.

18. As regards purchase of artificial limb, the tribunal has awarded

FAO No.216/02 Page no.7 Rs.90,270/- for purchase of two artificial limbs. I am inclined to award

expenses for one more artificial limb and accordingly the amount in this

respect is enhanced to Rs. 1,35,405/-.

19. As regards the issue of interest that the rate of interest of 9% p.a.

awarded by the tribunal is on the lower side and the same should be

enhanced to 18% p.a., I feel that the rate of interest awarded by the

tribunal is just and fair and requires 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 @ 9% pa by the tribunal and the same

is not interfered with.

20. As regards the deposit of 75% of award amount being deposited in

FDR, in view of the the decision of the Apex Court in Lilaben Udesing

Gohel vs Oriental Insurance Co. Ltd. 1996 ACJ 673 (SC), I feel that

the Tribunal committed no error. Be that as it may, she can always

withdraw the same upon taking permission from the Tribunal in case of

FAO No.216/02 Page no.8 any exigency. Thus, no interference is made in this regard.

21. In view of the foregoing, Rs.90,000/- is awarded for expenses

towards treatment; Rs.5,000/- for special diet; Rs.10,000/- for

conveyance expenses; Rs. 25,000/- for loss of amenities and enjoyment

of life & Rs.50,000/- for permanent disability; Rs.3,57,000/- for loss of

future income; Rs.1,35,405/- for purchase of artificial limbs; Rs.1,00,000/-

for attendant charges and Rs.1,00,000/- for pain and sufferings.

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

to Rs.8,72,405/- from Rs.8,05,405/- 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.

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

      April 27, 2009                           KAILASH GAMBHIR, J




FAO No.216/02                                                        Page no.9