Shakuntla Gupta & Ors vs Dtc&Ors.
2009 Latest Caselaw 3190 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI

                        FAO NO.570/99 & 571/99

                              Judgment reserved on: 22.08.2008

                              Judgment delivered on: 17.08.2009

FAO 570/99

Shakuntla Gupta & Ors.                         ......Appellant

                               Through Mr.Sanjiv Sharma, Adv

FAO No.571/99

Shakuntla Gupta                                .......Appellant

                                Through Mr. Sanjiv Sharma, Adv

                     Versus

D.T.C.& Ors.                              ........ Respondents

                               Through: Mr.S.Gupta, Adv

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may                    Yes
be allowed to see the judgment?

2. To be referred to Reporter or not?                           Yes

3. Whether the judgment should be                               Yes
     reported in the Digest?

KAILASH GAMBHIR, J.

1. Vide this common order I shall dispose of two appeals

bearing FAO Nos. 570/99 and 571/99 filed by the appellants for

enhancement of compensation passed by the Tribunal. FAO No.

570/99 has been filed by the LR's of deceased Sri Tej Prakash

Mahajan and FAO No. 571/99 has been filed by Ms. Shakuntala

Gupta on account of injuries sustained by her in the accident.

2. The present appeals arise out of the award of

compensation passed by the Learned Motor Accident Claim

Tribunal on 31.8.99 for enhancement of compensation. The

learned Tribunal awarded a total amount of Rs.70,000/- in FAO

no.571/99 and Rs.64,000/- in FAO no. 570/99 with an interest @

12% PA for the loss caused to the claimants appellants in the

motor accident.

3. The brief conspectus of facts is as under:

4. On 31.8.92 Tej Prakash Mahajan (deceased) was driving a

two wheeler scooter bearing registration no. DL 1SB 5042. His

wife Shakuntla Gupta was sitting on the pillion seat and they

were coming from Vikas Puri and going towards Rajouri Garden.

At about 1.10 p.m, when they were on the Najafgarh road a DTC

bus bearing registration no. DL 1P 9238 came from behind. In the

process of overtaking, it hit the two wheeler scooter being driven

by the deceased. As a result of the impact, both the occupants of

the scooter fell down and sustained grievous injuries. They were

removed to DDU Hospital where the doctors declared Tej Prakash

Mahajan as 'brought dead'. Mrs. Shakuntla Gupta had received

multiple injuries on her body including multiple fractures and was

treated at DDU, LNJP Hospital and St. Stephen Hospital. The

accident was caused due to rash and negligent driving of

offending bus driver.

5. The claim petitions were filed on 1.3.93 and an award was

passed on 31.8.99. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

6. Sh. Sanjiv Sharma counsel for the appellants in FAO No.

571/99 urged that the award passed by the learned Tribunal is

inadequate and insufficient looking at the circumstances of the

case. He contended that the tribunal erred in disallowing the

bills amounting to Rs.61400/- on account of employment of

nurses and granted only Rs.20,000/- in this regard. Ld. Tribunal

also erred in assessing the loss of income of the claimant

appellant at Rs.10,000/- PM, and the counsel urged for

Rs.2,50,000/- to be awarded in this regard. The counsel

submitted that the Tribunal awarded a sum of Rs.10,000/-

towards mental pain & suffering and averred that it should

have been Rs.50,000/-. Further the counsel submitted that the

tribunal erred in awarding an interest of 12% pa instead of 18%

pa.

7. In FAO no. 570/99 it has been urged by the counsel that

the Ld. Tribunal has not considered the complete income of the

deceased and stated that the Tribunal erred in holding that the

appellants have not suffered any loss on account of the amount

of pension received by the deceased. Ld. Counsel further

submitted that the Tribunal erred in arriving at loss to the

appellants to the tune of Rs. 8000/- p.a. whereas, pecuniary loss

to the family was around Rs.5,92,000/-. Ld. Counsel submitted

that the Tribunal has not granted compensation on account of

loss of love and affection and at least Rs.1,00,000/- should have

been granted on account of loss of love and affection to the

claimants.

8. Per contra, Mr. J.N. Aggarwal counsel for the respondent

urged that the award passed by the tribunal is just and fair and

does not call for inference by this court.

9. I have heard counsel for the appellants and the respondent

and perused the award.

FAO NO.571/99

10. 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 the 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."

11. In the instant case the tribunal awarded Rs.20,000/- for

expenses towards medicines; Rs.5,000/- for special diet;

Rs.5000/- for conveyance expenses; Rs.Rs.10,000/- for pain and

agony; Rs.10,000/- for loss of income and Rs.20,000/- for

attendant charges.

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

had placed on record various bills of medicines which comes to

approx Rs.17,000/-. The tribunal took cognizance of the fact that

the appellant sustained serious head injury and fracture of collor

bone, right arm and ribs and awarded Rs. 20,000/- even though

the appellant could not prove that she had incurred Rs.20,000/-

towards medical expenses. I do not find any infirmity in the order

in this regard and the same is not interfered with.

13. As regards nursing charges, the appellant had placed five

bills dated 30.9.92, 31.10.92, 30.11.92, 31.12.92 & 31.1.93 for a

sum of Rs.61,400/-. These bills have been issued in the name of

Mrs. Mahajan. The name of the injured in the present case is Mrs.

Shakuntla Devi. The appellant has not examined any witness

from Dhingra Trained Nurses Burea to prove these bills. Perusal

of bill dated 30.9.92 shows that it was issued from 31.8.92 to

30.9.92 for one nurse and from 1.9.92 to 30.9.92 for another

nurse. As per the discharge slip Ex.Pw3/A of LNJP Hospital, date

of admission is shown as 31.8.92 and date of discharge is shown

as 10.9.92. As per discharge summery Ex.PW3/B of St. Stephen's

Hospital she was admitted on 9.12.92 and discharged on

16.12.92. When she was admitted in a Government hospital

where attendant's are available free of cost, it cannot be

appreciated that she had employed the services of the nurse

during the said period as mentioned in the bills. The bills in

question hence, seem to be procured one. The Tribunal has

rightly not compensated the said bills. However, the Tribunal has

awarded Rs.20,000/- towards attendant charges in lumpsum.

Since, no dispute in this regard is raised by the respondent. I do

not find any infirmity in the order of the Ld. Tribunal and the

same is not interfered with.

14.. As regards conveyance expenses, nothing has been

brought on record. The appellant suffered head injury and

fracture of right arm and ribs. The tribunal after taking notice of

this fact and in the absence of any cogent evidence awarded

Rs.5000/- for conveyance expenses. I do not find any infirmity in

the order in this regard and the same is not interfered with.

15. 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 head and fracture in arms and ribs thus she must have

also consumed protein-rich/special diet for her early recovery

and awarded Rs. 5000/- for special diet expenses. I do not find

any infirmity in the order in this regard and the same is not

interfered with.

16. As regards mental pain & suffering, the tribunal has

awarded Rs.10,000/- to the appellant. The appellant sustained

grievous head injury and fracture of right arm and ribs. In such

circumstance, I feel that the compensation towards mental pain

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

17. As regards loss of earnings, the appellant has stated that

after retirement on 31.3.92 as teacher she was imparting tuition

to the students and earning Rs.3000/- p.m. The income tax

return filed on record showing income of Rs.49,260/- pertained to

the year April 91 to March 92 and during the said period she was

in Govt.service. No cogent evidence has been led in this respect

to prove that she was earning Rs.3000/- p.m. Be that as it may,

the appellant was a teacher and I assume that she was earning

Rs.3000/- p.m from imparting tuition. She sustained head injury

as well as fracture in right arm and ribs. I further assume that

she could not have worked for six months. I therefore enhance

the compensation on account of loss of earning to Rs.18,000/-.

18. 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 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.

19. In view of the foregoing, Rs. 20,000/- is awarded for

expenses towards treatment; Rs.20,000/- for attendant charges;

Rs.5,000/- for conveyance charges, Rs.5,000/- for special diet;

Rs.25,000/- for pain and suffering; and Rs.18,000/- towards loss

of earnings.

FAO NO.570/99

20. Vide above FAO, the enhancement in the claim petition filed for

the death of Shri Tej Prakash has been sought.

21. The appellants claimants had brought on record income tax

return for the year 1992-93 filed by the deceased. As per IT return

the income has been shown from salary as Rs.18,460/-, income from

house property as Rs.3656/- income from other sources Rs.36,593/-,

and Rs.27076/- capital gains. It is urged by the Ld. counsel that

Rs.27076/- is the income from shares. As far as income of the other

sources is concerned the appellants have failed to adduce any income

to disclose as to from which source the deceased was drawing the said

income and if as per the appellants the income was from the business

of stock and shares then also they were required to give enough

material to substantiate the said plea by placing some cogent

evidence on record. Simply by mere oral deposition the income of the

deceased could not have been proved. It is also relevant to point out

here that the appellant has placed an income tax assessment order

only for the assessment year 1992-1993, but no previous returns or

assessment orders were placed on record and, therefore, also it is

difficult to believe the version of the appellant with regard to the

income of the deceased from stock and shares business. With regard

to the claim of the appellant that the deceased was drawing more

pension than the appellant no. 1, wife of the deceased, I find there is a

merit in the submission of the counsel for the appellant. As per the

evidence placed on record the deceased and the appellant no. 1, wife

of the deceased was drawing a sum of Rs. 3,500/- pm towards

pension, while after the death of the deceased, the wife of the

deceased was drawing the pension of Rs. 2,000/- pm, therefore, there

is net loss of Rs. 1,500/- pm as far as family pension payable to the

wife of the deceased is concerned, therefore, the said difference can

be taken into account to determine the income of the deceased. It has

been urged that the deceased was planning to start a consultancy

firm. But it was yet not started and no presumption can be made at

this stage. It has come on record that the deceased was of 61 years of

age at the time of death and had retired as Foreign Language

Examiner, Ministry of Defence. The tribunal after considering that

immediately before the death of the deceased, he had returned a total

income of Rs. 36,790/-, including an amount of Rs. 18,460/- on account

of salary and Rs. 3,656/- as income from house property and also

considering income from other sources; viz share transactions etc.

Assessed income of the deceased at Rs. 12,000/- pa. It is no more res

integra that in the absence of any cogent evidence as regards income

of the deceased, rates of minimum wages as per the Minimum Wages

Act is taken as income of the deceased. In the instant case, the

deceased was a post-graduate, M.A. in Mathematics, thus as on the

date of the accident, i.e. 31/8/1992, his income as per Minimum

Wages Act was Rs. 1,457/- pm. To this amount a further amount of Rs.

1,500/- pm on account of loss of family pension is concerned is to be

added, meaning thereby that total monthly income of the deceased

would come to Rs. 2,957/-. It has been consistently held by this court

that whenever income under the Minimum Wages Act is taken into

consideration, then increase in minimum wages should also be taken

into consideration. Accordingly, the income of the deceased would

come to Rs. 4435.50/- pm or Rs. 53,226/- pa. The deceased must have

been spending 1/3rd out of the above for his personal upkeep and the

loss on account of annual dependency comes to Rs.35,484/-p.a.

Therefore, enhancement is made in relation to loss of income of the

deceased by this court.

22. In the facts and circumstances of the case, I feel that the

tribunal has committed no error in applying the multiplier of 8. This

case pertains to the year 1992 and at that time II schedule to the

Motor Vehicles Act was not brought on the statute book. The said

schedule came on the statute book in the year 1994 and prior to 1994

the law of the land was as laid down by the Hon'ble Apex Court in

1994 SCC (Cri) 335, G.M., Kerala SRTC v. Susamma Thomas. In

the said judgment it was observed by the Court that maximum

multiplier of 16 could be applied by the Courts, which after coming in

to force of the II schedule has risen to 18. The age of the deceased at

the time of the accident was 61 years and he is survived by his wife

and two sons. In the facts of the present case I am of the view that

after looking at the age of the claimants and the deceased and after

taking a balanced view considering the multiplier applicable as per the

II Schedule to the MV Act, the multiplier of 8 has been rightly applied

by the tribunal. Applying the same the amount comes to Rs.2,83,872/-

(35,484 x 8).

23. 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 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.

24. On the contention regarding that the tribunal has erred in not

granting compensation towards loss of love & affection, funeral

expenses and loss of consortium. In this regard Rs.25,000/- is granted

as compensation towards loss of love and affection; compensation

towards funeral expenses is granted at Rs.15,000/- and compensation

towards loss of consortium is granted at Rs.25,000/-.

25. As far as the contention pertaining to the awarding of amount

towards mental pain and sufferings caused to the appellants due to

the sudden demise of the deceased and the loss of services, which

were being rendered by the deceased to the appellants is concerned, I

do not feel inclined to award any amount as compensation towards the

same as the same are not conventional heads of damages.

26. Accordingly, Rs. 2,83,872/- is awarded towards loss of

dependency to the appellants, Rs.25,000/- towards loss of love and

affection, Rs.15,000/- towards funeral expenses Rs.25,000/- towards

loss of consortium.

27. In view of the above discussion, the total compensation is

enhanced to Rs.3,48,872/- from Rs.64000/- in FAO no. 570/99 and to

Rs.93,000/- from Rs.70,000/- in FAO no.571/99 with interest @ 7.5%

per annum from the date of filing of the present petition till realisation

and the same should be paid to the appellants by the respondent DTC

in the same proportion as awarded by the tribunal.

28. With the above directions, the present appeals are disposed of.

August 17 ,2009                            KAILASH GAMBHIR, J