Dr. Rajinder Kumar Babbar vs Smt. A. Bhasin & Ors
2009 Latest Caselaw 1811 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      FAO No. 6/2001

                       Judgment reserved on: 1.4.2008
%                      Judgment delivered on: 4.5.2009


Dr. Rajinder Kumar Babbar                   ...... Appellant
                    Through: Mr. O.P. Goyal, Advocate

                                 versus


Smt. A. Bhasin & Ors.                        ..... Respondents
                     Through: Mr. Pradeep Gaur, Advocate


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 23/9/2000 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 40,000/- 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. That the appellant, Dr. Rajinder Kumar Babber, was coming from

Mehrauli side towards his residence, Kashmere Gate area, on Aurbindo

Marg and when he was so going towards Safdarjung Hospital side on

his correct side, car No. WHE-6023, driven rashly, recklessly and

negligently by respondent No. 1, came from the opposite direction, i.e.

Safdarjung Hospital side and took a sudden and abrupt turn towards

Safdarjung Development Area after coming on the wrong side and hit

the appellant and the motor cycle on which the appellant was going

with a great force, as a result of which the appellant was thrown at a

distance and was injured.

4. A claim petition was filed on 29/6/1982 and an award was passed

on 23/9/2000. Aggrieved with the said award enhancement is claimed

by way of the present appeal.

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

tribunal erred in awarding a meager amount of Rs. 40,000/- only as

compensation. The counsel maintained that the appellant had stated

before the tribunal that he could not go to his clinic for 4 ½ months

and had to employ two full time employees in place of one half time

employee due to the accident and also used to travel by public

transport, therefore, compensation in this regard to the extent of Rs.

1,15,000/- should have been granted by the tribunal. The counsel

contended that the amount of compensation towards pain and

sufferings in the facts of the case should have been allowed at Rs.

2,00,000/-. The counsel submitted that the tribunal did not properly

assess the loss suffered by the appellant towards professional loss/

loss of income. The counsel also averred that the tribunal erred in not

awarding compensation @ 12% pa from the date of filing of the

petition till realization.

6. Per contra, Mr. Pradeep Gaur counsel for the respondent

insurance company submitted that the award passed by the tribunal is

just and fair and does not require any interference by this court.

7. I have heard learned counsel for the parties and perused the

record.

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 into 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."

9. In the instant case the tribunal awarded Rs. 5,000/- for expenses

towards medicines and conveyance expenses; Rs. 28,000/- for mental

pain and sufferings; loss of amenities and expectation of life and Rs.

7,000/- on account of loss of earnings for 6 months.

10. On perusal of the award, it is manifest that the appellant had not

placed on record any medical bills. As regards conveyance expenses,

also nothing has been brought on record. The tribunal took cognizance

of the fact that the appellant sustained fracture of collar bone, right

femur shaft, 8th, 9th and 10th ribs, both bones of right leg and right knee

and awarded Rs. 5,000/- even though the appellant could not prove

that he had incurred the said amount towards medical expenses and

conveyance expenses. I do not find any infirmity in the order in this

regard and the same is not interfered with.

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 should have taken notice of

the fact that since the appellant sustained fracture of collar bone, right

femur shaft, 8th, 9th and 10th ribs, both bones of right leg and right

knee, thus, he must have also consumed protein-rich/special diet for

his early recovery and should have at least awarded Rs. 5,000/- for

special diet expenses.

12. As regards mental pain & sufferings, loss of amenities of life and

loss of expectation of life, the tribunal awarded a consolidated sum of

Rs. 28,000/- to the appellant. The appellant sustained fracture of collar

bone, right femur shaft, 8th, 9th and 10th ribs, both bones of right leg

and right knee. In such circumstance and also considering the decision

of the Apex Court in R.D. Hattangadi (Supra), I feel that the

compensation under these heads should have been separately

assessed by the tribunal. Therefore, compensation towards mental

pain & suffering is awarded at Rs. 25,0000/- and Rs. 3,000/- is awarded

towards loss of expectation of life.

13. As regards loss of amenities, resulting from the defendant's

negligence, which affects the injured person's ability to participate in

and derive pleasure from the normal activities of daily life, and the

individual's inability to pursue his talents, recreational interests,

hobbies or avocations. Considering that the appellant sustained

fracture of collar bone, right femur shaft, 8th, 9th and 10th ribs, both

bones of right leg and right knee, I feel that the tribunal erred in not

awarding compensation under this head separately and in the

circumstances of the case same is allowed to the extent of Rs. 25,000/-

.

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

that the tribunal has not erred in not awarding the same. Since nothing

was provided on record to prove the disability suffered by the

appellant. Thus, no interference is made in the award in this regard.

15. As regards medical attendants, the appellant had not placed on

record anything to prove the same. In the absence of any cogent or

reliable material on record, I do not wish to award any compensation in

this regard.

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

appellant was produced on record. It is no more res integra that mere

bald assertions regarding the income of the injured are of no help to

the claimant 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 injured learned Tribunal should

determine income of the deceased on the basis of the minimum wages

notified under the Minimum Wages Act. However, considering that no

dispute in this regard is raised by the respondents and that on applying

the said principle at this stage, the compensation under this head will

dwindle down and thus in the interest of justice, the award is not

interfered with in this regard and compensation towards loss of income

taken at Rs. 7,000/- for 6 months is mentioned.

17. As regards the issue of interest that the tribunal erred in

awarding an interest for the period of 10 years only instead of allowing

the same from the date of filing of the petition till realization. The

compensation for the period when the appellant himself was negligent

in pursuing the case has been disallowed. On perusal of the award it

comes into light that the appellant had been negligent and also took a

lot of time in examining the witnesses. No doubt that the MV Act is a

beneficial piece of legislation, legislated with the purpose of giving

relief to the victim of the motor accident but at the same time, a victim

of the motor accident cannot be allowed to gain benefit out of his own

faults and negligence due to which delay was caused in disposal of the

case. Therefore, the tribunal rightly, disallowed the interest to the

appellant for the said period when the appellant was negligent in

pursuing the case. Therefore, no interference is made in the award on

this count.

18. In view of the foregoing, Rs. 5,000/- is awarded for expenses

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

diet; Rs. 25,000/- for mental pain and sufferings; Rs. 25,000/- towards

loss of amenities; Rs. 3,000/- for loss of expectation of life; and Rs.

7,000/- on account of loss of earnings.

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

enhanced to Rs. 70,000/- from Rs. 40,000/- 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 shall be paid to

the appellant by the respondents as directed by the tribunal within a

period of 30 days.

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

04th May,2009                             KAILASH GAMBHIR, J.