A.B. Gupta vs Rajbir Singh & Ors.
2009 Latest Caselaw 1812 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           FAO NO.117/01


                      Judgment reserved on: 05.02.2008
                      Judgment delivered on:04.05.2009

A.B.Gupta                                       ......Appellant

                            Through Mr.Santosh Kumar, Adv

Versus

Rajbir 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 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 6.11.2000

for enhancement of compensation. The learned Tribunal awarded a

total amount of Rs.3,38,000/- 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. On 14.08.96 the appellant suffered injury in road accident on

14.8.96 on Aurbindo Marg, T Point, Vikas Sada Near INA Market. The

appellant was driving his two wheeler scooter bearing no. DL 6SB

1835 for going to Mehrauli from Paharganj side and when he

reached at T-Point, Vikas Sadan, a bus bearing no. DL 1 P 8432

came in very fast speed from right side and took a sudden and

abrupt turn and crushed the appellant. The front wheel of the bus

passed over the left leg and the scooter of the appellant. Due to

injuries he remained in admitted in the hospital from 14.8.96 to

18.8.96 and then from 18.8.96 to 20.9.96 and he suffered

amputation of his left leg below knee.

4. A claim petition was filed on 22.11.96 and an award was

passed on 6.11.2000. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

5. Sh. Santosh Kumar 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 has erred in

granting compensation towards medical expenses. He claimed an

amount of Rs. 2,50,000/- 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 suffered amputation of left leg, the learned Tribunal must

have considered awarding that amount. Enhancement is also

claimed on the ground that a sum of just Rs. 20,000/- is awarded

towards conveyance instead of the claim of Rs. 5,00,000/- .The Ld.

Counsel shows his discontent for awarding Rs.1,00,000/- only for

loss of leg consequent disability and loss of amenities etc. He also

claimed Rs.5,76,000/- towards future loss of income. The Tribunal

awarded a sum of Rs.30,000/- 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/-. Ld. Counsel further urged

that the tribunal has erred in awarding Rs.40,000/- towards loss of

business due to accident on average basis and he claimed

Rs.1,20,000/-in this respect. Enhancement is also sought from

Rs.10,000/- to Rs.18,000/- on account of private attendant. Further

the counsel pleaded that the counsel erred in awarding an interest

of 12% pa instead of 15% pa.

6. I have heard the counsel for the appellant Sh Santosh Kr and

have 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.30,000/- for

pain and suffering; Rs.1.00 lac for loss of leg and consequent

disabilities,loss of amenities etc., Rs.1,37,482/- for medicines,

Rs.20,000/- for conveyance; Rs.40,000/- for loss of business;

Rs.10,000/- for engaging private attendant.

9. On perusal of the award, it becomes manifest that the

appellant had placed on record various bills Ex.PW2/1 to Ex.PW2/63

which comes to a total of Rs.1,38,032/-. As regards medical

expenses, the tribunal has awarded Rs.1,37,482/-. The Tribunal has

erred in not taking into account a bill for Rs.550/-. Accordingly, I

enhance the amount to Rs.1,38,032/- for medicines/medical

treatment.

10. As regards conveyance expenses, the appellant has brought

on record Ex.PW2/64 to Ex.PW2/66 which are amounting to

Rs.12,000/- approx. These bills are for going to Jaipur for purchase of

artificial leg. In addition to above, it is obvious that appellant must

have spent some amount while performing to and fro journey to

hospital for taking treatment. The Tribunal has awarded a sum of

Rs.20,000/- for conveyance. 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, the Tribunal has erred in not

awarding the same. From perusal of the file it is revealed that

nothing was brought on record by the appellant to prove the

expenses incurred by him towards special diet. The appellant

suffered amputation of his left leg. He must have also consumed

protein-rich/special diet for his early recovery. I grant a sum of

Rs.10,000/- for special diet to the appellant.

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

Rs. 30,000/- to the appellant. The appellant sustained amputation of

his left leg and wounds on other body parts. In such circumstance, I

feel that the compensation towards mental pain & suffering should

be enhanced to Rs. 50,000/-.

13. As regards the compensation towards permanent disability, I

feel that the tribunal has not erred in awarding Rs.1,00,000/- for loss

of leg and consequent disabilities, loss of amenities etc. I do not find

and infirmity in the order passed by the Tribunal in this respect and

the same is not interfered with.

14. As regards medical attendants, the Tribunal has awarded

Rs.10,000/-. The appellant has not examined any witness employed

by him as attendant before the Tribunal. The appellant in his

examination before the Tribunal has deposed that he kept attendant

namely Raju to look after him for one year and he was paying

Rs.1500/- p.m to him. I enhance the compensation in this respect to

Rs.12,000/-.

15. As regarding loss of business, the appellant has filed his

income tax return showing income as Rs.71,032/-p.a. His monthly

income comes to approx Rs.6000/- p.m. I presume that the appellant

could not have worked for 4 months due to the accident. The

amount comes to RS.24,000/-. I accordingly award Rs.24,000/- to the

appellant towards loss of business.

16. As regards future loss in earning capacity, the certificate of

disability Ex.2/77 show 60% disability. This disability is in relation to

a particular limb. I consider the same as 40% for the whole body.

Taking monthly income of the appellant to be Rs.6000/- and 40%

disability, loss of income comes to Rs.2400/- p.m or Rs.28,800/- p.a.

The age of the appellant is mentioned as 49 years in the petition. No

other proof regarding age of the appellant is available on file.

Considering the same to be true I adopt the multiplier of 13.

Therefore, the mount comes to Rs. 3,74,400/- (28800x13=3,74,400).

I award a sum of Rs.3,74,400/- on account of loss in earning capacity

to the appellant.

17. As regards the study loss of the son of appellant, it is only an

averment made by the appellant and it has not been proved by

adducing authenticated evidence. The son of the appellant was the

best witness to prove the contention of the appellant. But appellant

has opted not to do so. Also no written communication in this

respect has been filed. I am not inclined to award any amount on

this ground.

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 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 @ 12% pa by

the tribunal and the same is not/ interfered with.

19. In view of the foregoing, Rs. 1,38,032/- is awarded for

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

Rs.20,000/- for conveyance expenses; Rs.50,000/- for pain and

suffering; Rs.1,00,000/- for loss of leg, disability and loss of

amenities; Rs.12,000/- for attendant charges, Rs.24,000/- for loss of

business and Rs.3,74,400/- for loss of earning capacity.

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

enhanced to Rs.7,28,432/- from Rs. 3,37,483/- 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 30 days of this order.

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

      04th May, 2009                      KAILASH GAMBHIR, J