Suresh Kumar Wadhawan vs Dharamvir Singh & Ors.
2009 Latest Caselaw 1685 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    FAO No. 15/2002

                     Judgment reserved on: 25.1.2008
%                    Judgment delivered on: 27.4.2009


Suresh Kumar Wadhawan                    ...... Appellant
                  Through: Mr. O.P. Goyal, Advocate

                                 versus


Dharamvir Singh & 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 04.10.2001 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs.50,100/- 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:

3. On 21.6.86 appellant Suresh Kr Wadhwan alongwith his father

Madan Lal Wadhawan was going in a Maruti Car DIC 3675 from Taj

Palace towards his residence on the Ring Road at a normal speed on

their correct hand side of the road and when they reached opposite Raj

Rifle Centre, a Jeep no. DEP 1282 suddenly emerged from Raj Rifle

Centre Gate without any indication or horn driven by Respondent no.1

rashly and negligently and hit the maruti car due to which the car was

extensively damaged and the petitioner sustained grievous injury on his

face and his right eye was seriously injured and started bleeding

profusely.

4. A claim petition was filed on 18.12.86 and an award was passed on

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

of the present appeal.

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

tribunal ought to have awarded a sum of Rs.5,00,000/- for loss of vision

and loss of right eye suffered by the appellants. Tribunal ought to have

awarded him for conveyance on this account. The Tribunal ought to have

awarded a sum of Rs.2.00 lac as special damages on account of the

expenses incurred during trial and Rs.1.00 lac as cost of medicines which

the appellant has to take during the later part of his life. It is further

submitted that separate damages of Rs.5.00 lac ought to have awarded

to the appellant for his inability to drive a vehicle. It is further submitted

that the Tribunal erred in taking the earning of the injured as Rs.800/-

per month and it ought to have been taken as Rs.7000/- p.m and a sum

of Rs.15,00,000/- should have been awarded towards future loss of

income and Rs.10,00,000/- toward loss of income. It is further averred

that a sum of Rs.1,00,000/- should have been awarded for permanent

disability and Rs.2.00 lac towards expenses incurred on the treatment of

the appellant against a sum of Rs.20,486/-. Even bill amount comes to

Rs.37,869/-. Amount towards expenses incurred in repairing the

damage to the car is also pleaded through this appeal to the extent of

Rs.36,840/-. Further the counsel pleaded that the counsel erred in

awarding an interest of 9% pa instead of 15% pa.

6. I have heard the counsel for the appellant 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.20,486/- for medical

expenses including medicines; Rs.3000/- for special diet; Rs.3000/- for

conveyance expenses; Rs.20,000/- for mental pain and sufferings; &

Rs.3,600/- towards 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. 20,486/-.

Some of the bills placed by the appellant do not belong to the present

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

same is not interfered with.

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

record. The appellant suffered injury in his eye & other parts of the body

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

absence of any cogent evidence awarded Rs.3000/- for conveyance

expenses. This case pertained to the year 1987. I inclined to award

Rs.5000/- for 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 serious injuries in eye he must have also consumed

protein-rich/special diet for his early recovery and awarded Rs.3000/- . I

enhance the same to Rs.5000/- for special diet expenses.

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

20,000/- to the appellant. The appellant sustained injury in his eye and

other parts of the body including leg. In such circumstance, I feel that the

compensation towards mental pain & suffering should be enhanced to

Rs. 30,000/-.

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

that the tribunal has not erred in not awarding the same. There is no

disability certificate issued by the competent board of doctors available

on file. The plea for compensation under this head is declined.

14. As regards expenses incurred in repairing the damaged car, the

appellant has not placed any bill for repairing the car on file. It is

admitted by the appellant in the pleading that part of the damages to the

car has been paid by the insurance company. I do not find any infirmity

in the order passed by the Tribunal and the same is not interfered with

As the claimant is duty-bound to produce relevant materials, on the basis

of which, a determination could be made, as to what would be the

compensation. In the absence of any cogent or reliable material on

record, I do not wish to award any compensation 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.5000/-.

16. 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.600/- pm at the time of accident and awarded Rs.

3600/- towards loss of income, the period during which the appellant

could not work. The Tribunal has committed no error in awarding

compensation for six months @ Rs.600/- p.m. I find no infirmity in the

order and the same is not interfered with.

17. 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 15% 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 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 @ 9% pa

by the tribunal and the same is not interfered with.

18. In view of the foregoing, Rs. 20,486/- is awarded for expenses

towards treatment; Rs.5000/- for special diet; Rs.5000/- for conveyance

expenses; Rs.3600/- for loss of wages; Rs.5000/- for loss of amenities and

enjoyment of life & and Rs.30,000/- for pain and sufferings.

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

to Rs.69,086/- from Rs.50,100/- along with interest on 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