Surjeet Singh vs Virender Kumar & Ors.
2009 Latest Caselaw 1684 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI
                             FAO NO.448/98

                           Judgment reserved on: 20.2.2008
                           Judgment delivered on:27.4.2009


Surjeet Singh                                      ......Appellant
                                 Through Mr.Y.R.Sharma, Adv

     Versus

Virender Kumar & Ors.                             ........ Respondents

                                 Through: Mr.S.C Dhanda, 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 in the Digest?               NO

KAILASH GAMBHIR, J.

1. The present appeal arises out of the award of compensation passed

by the Learned Motor Accident Claim Tribunal on 4.6.98 for enhancement

of compensation. The learned Tribunal awarded a total amount of Rs.

4,10,552/- 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 3.7.95 at about 9.15 a.m appellant Surjeet Singh aged about 18

FAO No.448/98 Page No.1 ½ years was hit by a bus bearing no. DL 1P 2747 from behind when he

was coming from Tigri Khanpur on his cycle and was going to Defence

Colony, Delhi. The bus was being driven by respondent no.1 Virender

Kumar in a rash and negligent manner. Due to the forceful impact, the

appellant fell on the road and sustained serious injuries. He was operated

for foot. Entire flesh of the right heels of the appellant removed and then

his right foot was amputated. The skin grafting of the right heel of the

petitioner was also done.

4. A claim petition was filed on 02.12.95 and an award was passed on

4.6.98. Aggrieved with the said award enhancement is claimed by way of

the present appeal.

5. Sh. Y.R.Sharma 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 assessing the

income of the claimant appellant at Rs.3000/- PM and monthly loss

Rs.1200/- on the basis of 40% loss of earning and stated that the same

should have been Rs.4000/- p.m. Based on this, it is further contended

that the loss of income should also be enhanced, accordingly. He

further submits that future increase in income should also be considered.

Ld. Tribunal has erred in not considering the overtime which was being

undertaken by the appellant besides daily wages. The Counsel also

FAO No.448/98 Page No.2 expressed his discontent on the conveyance expenses and stated that

Tribunal ought to have awarded future conveyance allowance to the

appellant. Ld. Tribunal has erred in granting a sum of Rs.16,000/-

towards marriage prospects of the appellant and he became crippled

person at such a young age and he claims Rs.2,00,000/- on this account.

6. The Tribunal awarded a sum of Rs.35,000/- towards mental pain &

suffering but the counsel shows his discontent to that as well and

averred that it should have been Rs.1,00,000/-. Further the counsel

pleaded that the counsel erred in awarding an interest of 12% pa

instead of 18% pa.

7. I have heard the counsel for the parties 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:

FAO No.448/98 Page No.3 "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 has awarded Rs.40,351/37 for

expenses towards medicines; Rs.1000/- for artificial leg; Rs.2,59,200/- for

future loss in earning capacity; Rs.60,000/- for loss of marriage

prospects, Rs.15000/- for special diet and for conveyance expenses;

Rs. 35,000/- for mental pain and sufferings;

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

had placed on record various bills amounting to Rs. 40,351/37. As

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

the appellant sustained serious injuries in his leg and his leg was

amputated. Tribunal has awarded Rs.1000/- for artificial leg. Regarding

FAO No.448/98 Page No.4 medical expenses, I do not find any infirmity in the order in this regard

and the same is not interfered with. However, compensation in regard to

artificial leg is enhanced to Rs. 5,000/-.

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

record. The appellant suffered amputation of right foot. The tribunal after

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

awarded Rs. 15,000/- for conveyance expenses and special diet. 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.

35,000/- to the appellant. The appellant sustained amputation of his right

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

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

13. As regards loss of future earning capacity and permanent

disability, the tribunal has awarded Rs.2,59,200/-. The Tribunal has

considered the income of appellant as Rs.3000/- p.m. The disability

mentioned to be 60% in the certificate is for a particular limb and not for

a entire whole body. The Tribunal has rightly considered the disability to

be 40% and after applying appropriate multiplier of 18 has awarded

RS.2,59,200/-. Therefore, after considering all these factors, I do not find

any infirmity in the award in this respect and the same is not interfered

with.

FAO No.448/98 Page No.5

14. 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.25,000/-.

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

appellant was brought on record. The tribunal assessed notional income

of the appellant at Rs.3000 pm. Taking into consideration that the

appellant suffered amputation of right foot, I take it that he could not

have worked for 6 months. Therefore, the loss of earnings for six months

comes to RS.18,000/-.

16. As regards Marriage Prospects, the Tribunal has awarded

Rs.60,000/-. I do not find any infirmity in the order in this respect and the

same is not interfered with.

17. As regards the issue of interest that the rate of interest of 12% 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 no interference. No rate of interest is

FAO No.448/98 Page No.6 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 and the same is not/ interfered with.

18. In view of the foregoing, Rs.40,351/- is awarded for expenses

towards treatment; Rs.5000/- for purchase of artificial limb; Rs.15000/-

for special diet and conveyance expenses; Rs.50,000/- for pain and

suffering; Rs.2,59,200/- for loss of earning capacity, Rs.25,000/- for loss

of amenities and enjoyment of life Rs.60,000/- for loss of marriage

prospects and Rs.18,000/- for loss of earning.

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

to Rs. 4,72,551/- from Rs. 4,10,552/- 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.

FAO No.448/98 Page No.7

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

      April 27, 2009                        KAILASH GAMBHIR, J




FAO No.448/98                                                  Page No.8