Smt. Vidya vs Sh. Sat Prakash & Others
2009 Latest Caselaw 1813 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

                              FAO NO.10/1999

                    Judgment reserved on: 04.02.2008
                    Judgment delivered on: 04.05.2009



Smt.Vidya                                         ......Appellant

                              Through Mr.J.S.Kanwar, Adv




Versus




Sh.Sat Prakash & Others                            ........ Respondents

Through: Kishore Rawat

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 16.01.1998

for enhancement of compensation. The learned Tribunal awarded a

total amount of Rs.41,600/- 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 31.12.87 at about 3.30 p.m Vidya Devi, was going in a

rickshaw When her rickshaw was on Loni Road, opposite Rathi Mills

a bus bearing no. URP 7502 being driven rashly and negligently by

respondent no.1 Sat Prakash came from behind and hit the

rickshaw. Appellants's right hand was crushed as a result of which

her right hand from just near elbow had to be amputated. She

remained admitted in the hospital for about 7 days.

4. A claim petition was filed on 3.6.1988 and an award was

passed on 16.1.98. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Sh. JS Kanwar counsel for the appellant 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

holding the contribution of the appellant at the rate of Rs.300/- p.m

and in adopting a multiplier of 12. It is further submitted that no

evidence was produced by the respondent to disprove the

appellant's case that she used to help her husband in his job and as

such used to earn Rs.1000/- p.m. It is further averred that the

appellant had been forced to take the services of domestic servant

@ Rs.300/- per month. The Tribunal also erred in awarding lesser

amount of compensation toward future earnings, mental pain and

agony, the counsel contended.

6. I have heard Sh.JS Kanwar counsel for the appellant and Sh

Kishore Rawat Adv for Respondent 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. 2000/- for

expenses towards medicines; Rs.2000/- for special diet &

conveyance expenses; Rs.16,000/- for mental pain and sufferings

and loss of earning; & Rs.21,600/- for loss of future earnings.

9. With regard to the grand of medical expenses, on perusal of

the award, it becomes manifest that the appellant had placed on

record various bills total of which comes to Rs. Rs.822.55. The

tribunal took cognizance of the fact that the appellant sustained

imputation of her hand and awarded Rs.2000/- even though the

appellant could not prove that she had incurred Rs.2000/- towards

medical expenses. However, considering the fact that one has to

spend huge amount on purchase of medicines from open market

even while being treated in Govt.hospital, I am inclined to enhance

the compensation to Rs.10,000/- towards medicines.

9. As regards conveyance expenses, nothing has been brought

on record. The appellant suffered grievous injury and her right hand

was amputated. The tribunal after taking notice of this fact and in

the absence of any cogent evidence awarded Rs.2000/- for

conveyance & special diet expenses. I enhance the compensation to

Rs.10,000/-towards conveyance and special diet.

10. As regards mental pain & suffering & loss of earning, the

tribunal has awarded Rs.16,000/- to the appellant. The appellant

suffered amputation of her right hand. In such circumstance, I feel

that the compensation towards mental pain & suffering should be

enhanced to Rs. 25,000/-.

11. As regards the compensation towards permanent

disability/future earning, the income of the appellant was taken by

the tribunal to be Rs.300/- p.m as stated by the appellant. The

appellant met with the accident in the year 1987. The age of the

appellant at the time of the accident was 30 years and 50%

disability of the appellant was duly proved on record as Ex.PW1/28.

The monthly loss to the appellant comes to Rs.150/-p.m Or

Rs.1800/- p.a. The age of the injured is stated to be 30 years as per

the petition. At the age of 30 the appropriate multiplier is of 18

years. Therefore, after considering all these factors, the

compensation towards loss of future earnings comes to Rs.32,400/-.

12. As regards loss of amenities due to permanent disability,

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.

10,000/-.

13. As regards loss of earnings during treatment, no proof

regarding income of the appellant was brought on record. The

tribunal assessed notional income of the appellant at Rs.300/-p.m..

Taking it into consideration, I award a sum of Rs.5000/- to the

appellant for loss of earnings during treatment period.

14. As regards the issue of interest that the rate of interest of 12%

p.a. awarded by the tribunal is on the lower side. I feel that the rate

of interest awarded by the tribunal is just and fair and requires

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.

15. In view of the foregoing, Rs. 10,000/- is awarded for expenses

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

expenses; Rs.5000/- for loss of wages/earning during treatment;

Rs.10,000/- for loss of amenities and enjoyment of life due to

permanent disability & Rs32,400/- for loss of future earnings due to

permanent disability and Rs. 25,000/- for pain and sufferings.

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

enhanced to Rs. 92,400/- from Rs.41,600/- 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.

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

04th May,2009                                KAILASH GAMBHIR, J