Rajeev Kumar vs D.T.C.
2009 Latest Caselaw 1814 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                FAO NO.136/92
                                    Judgment reserved on: 2.4.2008
                                    Judgment delivered on:4.5.2009

Rajeev Kumar                                             ......Appellant

                                Through Mr.R.D.Sahalia, Adv

Versus

D.T.C.                                              ........ 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 5/3/1992 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 1,16,000/- 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 7.9.79 at about 11.55 a.m the appellant was going on is

scooter no. DLW 6476 from Rajouri Garden to his office. When he

reached near Jagdamba wheel Industries at Najafgarh Road, a DTC Bus

no. DLP 1578 (route no.812) being driven by Sh Nafe Singh came at a

fast speed and without giving any horn hit his scooter while overtaking.

The scooter of the appellant struck against a padestarian. He was

dragged by the said bus upto 10/12 feet and he sustained injuries in

his right leg which was got fractured and thereafter amputated from

knee downwards.

4. A claim petition was filed by the petitioner and an award was

passed on 5/3/1992. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Sh. R.D. Shahlia, counsel for the appellant claimant urged that

the tribunal erred in not awarding compensation for loss of leave and

salary suffered by the appellant. The counsel maintained that the

tribunal erred in awarding only 12% pa from the date of the award

instead of awarding interest @ 18% pa from the date of filing of the

petition till realization. The counsel contended that the tribunal

awarded meager amount towards mental pain and suffering, special

diet, conveyance expenses, permanent disability, medical expenses

and treatment and urged that the same should be enhanced. The

counsel submitted that the tribunal erred in not noticing that the

appellant has lost his working capacity and therefore, is entitled to

future loss of earnings.

6. Nobody appeared for the respondents.

7. I have heard the counsel for the appellant and perused the

award.

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 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."

9. In the instant case the tribunal awarded Rs. 1,000/- for

conveyance expenses; Rs. 40,000/- for mental pain and sufferings; and

Rs. 75,000/-on account of permanent disability to the extent of 40%.

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

placed on record any documentary evidence to prove the expenses

incurred towards medical expenses. As regards medical expenses, the

tribunal should have taken cognizance of the fact that due to the

accident, the leg of the appellant was fractured and was amputated

from the knee downwards. He received severe head injuries and also

received multiple injuries on his chest and other parts of the body due

to being dragged by the bus and should have awarded at least Rs.

5,000/- towards medical expenses. Thus, the award is modified to this

extent.

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

record. Due to the accident, the leg of the appellant was fractured and

was amputated from the knee downwards. He received severe head

injuries due to which he was unable to give statement for about 2

months and also received multiple injuries on his chest and other parts

of the body due to being dragged by the bus. Also, the appellant was

directed by the doctor to attend OPD for sometime as is made out from

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

the absence of any cogent evidence awarded Rs. 1,000/- for

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

regard and the same is not interfered with.

12. 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 due to the accident, the leg of the appellant was

fractured and was amputated from the knee downwards. He received

severe head injuries due to which he was unable to give statement for

about 2 months and also received multiple injuries on his chest and

other parts of the body due to being dragged by the bus, thus, he must

have also have consumed protein-rich/special diet for his early

recovery and should have awarded Rs. 5,000/- for special diet

expenses.

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

40,000/- to the appellant. The leg of the appellant was fractured and

was amputated from the knee downwards. He received severe head

injuries due to which he was unable to give statement for about 2

months and also received multiple injuries on his chest and other parts

of the body due to being dragged by the bus. In such circumstance, I

feel that the compensation towards mental pain & suffering should be

enhanced to Rs. 50,000/-.

14. As regards the compensation towards loss of earnings due to

permanent disability, I feel that the tribunal has erred in not awarding

the same as per the settled principle of law. Dr. Arun Goyal and Dr.

B.P. Yadav opined in the disability certificate, Ex. PW64/1 that the case

of the appellant is a case of amputation of right leg with knee

deformity and the disability is permanent and is 40%. It has also come

on record that the age of the appellant at the time of the accident was

30 yrs, thus, considering that the accident took place in the year 1979,

multiplier of 15 shall be applicable. Nothing has come on record as

regards the work done by the appellant and his earnings. It has merely

come on record that he was working at some office. In the absence of

any evidence regarding the income of the appellant, the thumb rule is

that in the absence of clear and cogent evidence pertaining to income

of the appellant learned Tribunal should determine income of the

appellant on the basis of the minimum wages notified under the

Minimum Wages Act. The tribunal ought to have assessed the income

of the appellant in accordance with the minimum wages of a skilled

workman, notified under The Minimum Wages Act on the date of the

accident, which was Rs. 320/- per month. But since no dispute is

raised by the respondent in this regard, no interference is made in the

award on this count. Therefore, the compensation towards permanent

disability is awarded at Rs. 75,000/-.

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

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 suffered amputation of his toe, I feel that the tribunal

erred in not awarding compensation under this head and in the

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

.

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

appellant was brought on record. The tribunal should have assessed

income of the appellant at Rs. 320 pm on the basis of the minimum

wages notified under the Minimum Wages Act. Further, it has come on

record that the appellant met with the accident on 7/9/1979 and

remained in hospital till 21/11/1979. Due to the accident, the leg of the

appellant was fractured and was amputated from the knee downwards.

He received severe head injuries due to which he was unable to give

statement for about 2 months and also received multiple injuries on his

chest and other parts of the body due to being dragged by the bus.

Considering this, Rs. 1,920/- (320 x6 ) is awarded under this head for

loss of income for 6 months.

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

awarding an interest for the period from the date of award, I feel that

the tribunal ought to have given reasons for disallowing the

compensation for the said period. 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 by virtue of S. 171 MV Act. Tribunal cannot deny interest to

the appellant without giving any reasons. Therefore, the interest is

allowed from the date of filing of the petition till realization @ 12% pa

as awarded by the tribunal.

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

towards medicines; Rs. 5,000/- for special diet; Rs. 1,000/- for

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

25,000/- towards loss of amenities; Rs. 75,000/- on account of

permanent disability to the extent of 40% and Rs. 1,920/- on account

of loss of earnings.

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

enhanced to Rs. 1,62,920/- from Rs. 1,16,000/- 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 respondent DTC within 30 days of this order.

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

  04th May, 2009                            KAILASH GAMBHIR, J