Ganesh Bahadur Chettry vs Sh. Jogindere Singh
2009 Latest Caselaw 1815 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            FAO NO.277/98
                       Judgment reserved on: 18.02.2008
                       Judgment delivered on: 04.05.2009

Ganesh Bahadur Chettry                                     ......Appellant

                                       Through Mr.SK Paul., Adv

Versus

Sh Joginder Singh .                                   ........ Respondents

                                       Through: Mr.R.N.Sharma, Adv


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 27.5.98 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs.1,45,000/- 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 17.8.90 at about 8 a.m, the appellant was going from

Greater Kailash to his working place i.e. Laxman Public School on is

cycle. When he reached near Khel Gaon opposite Panchsheel Club

near T-Point, a bus bearing registration no. DEP 4607 driven by

Respondent no.1 Joginder Singh came from behind and drover over

him. The accident took place due to entire negligence of respondent

no.1. The appellant's right leg was amputated above knee joint, his

teeth was broken and he received injuries on eye and chest.

4. A claim petition was filed on 18.12.90 and an award was

passed on 27.5.98. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Sh.SK Paul 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 erred in not

awarding on account of loss of limb and permanent disability to the

extent of 80%. Ld. Tribunal has not awarded for other grievous

injuries i.e. Loosing of two teeth, injury to the jaw, eye injury,

stomach and chest injury and bruises and abrasion all over the

body. It is contended that no amount for purchase of artificial limb

has been awarded and the Tribunal ought to have awarded a sum of

Rs. 3.00 lac. Future loss/general damages has not been granted and

tribunal has erred in this respect. It is further urged that the tribunal

has erred in applying multiplier of only 5 years while the age of the

appellant was 17 ½ years at the time of accident. He also claimed

future conveyance and medical expenses @ 1200/- p.m. The

Counsel also expressed his discontent on the amount of

compensation granted towards medical expenses of Rs.25,000/-.

The claimant appellant is not able to produce medical bills to claim

the higher amount and he contended that looking at the facts and

circumstance of the case and the fact that the claimant was treated

for amputation of leg and the learned Tribunal must have

considered awarding some higher amount. Enhancement is sought

on account of enjoyment of future life including marriage prospects,

and shortening of life span. It is further contended that the appellant

was a good sportsman and he had applied for examination of

National Defence Academy. Further the counsel pleaded that the

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

pa.

6. Sh.R.N.Sharma, Ld. Counsel for the respondent has contended

that the award passed by Ld. Tribunal is just and fair and there is no

ground to interfere in the award.

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

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 has awarded Rs.25,000/- for

expenses towards medicines; Rs.60,000/-as loss of earning capacity;

Rs.30,000/- for future loss of income on account of disability;

Rs.15,000/- for pain and suffering, Rs.15,000/- for enjoyment of life

and shortening of life span etc.

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

placed on record various bills and the Tribunal after considering

those bills has awarded a lumpsum amount of Rs.25,000/- towards

medical, hospital, doctors fee, special diet, conveyance, attendant's

charges etc. The Tribunal has erred in awarding Rs.25,000/- on

account of above heads. The bills placed by the appellant comes to

total of Rs.5905/- which can be round of to Rs.6000/-. The appellant

was treated all through in Government hospital. I am inclined to

award Rs.6000/- to the appellant for medicine/medical treatment.

11. As regards conveyance expenses, the appellant has placed

before the Tribunal some conveyance receipt. The accident took

place in the year 1990. Considering those receipts and the injuries

suffered by the appellant, I grant a sum of Rs.5000/- to the appellant

for conveyance.

12. As regards special diet expenses, nothing was brought on

record by the appellant to prove the expenses incurred by him

towards special diet The tribunal has not awarded any compensation

separately under these heads. The appellant suffered 80% disability

on account of amputation suffered by him on account of his right

leg. Therefore, I grant a sum of Rs.10,000/- towards special diet to

the appellant.

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

Rs.15,000/- to the appellant. The appellant sustained amputation in

his right leg 6" above knee joint causing permanent disability,

breaking of jaw, teeth, eye and stomach injuries and other general

bruises all over the body. In such circumstance, I feel that the

compensation towards mental pain & suffering should be enhanced

to Rs.30,000/-.

14. As regards medical attendants, the appellant has not

examined any witness to prove his contention. Considering the

deposition made by the appellant himself before the Tribunal

nothing has been deposed by him in respect of keeping medical

attendant. I am not inclined to award any amount under this head.

15. As regards loss of amenities, 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.25,000/-.

16. As regards loss of future earning capacity, the appellant has

filed his salary certificate from Laxman Public School showing his

salary as Rs.4065/-. This certificate is for the month of April 1998.

There is no certificate of salary on file as on the date of accident.

The appellant has mentioned his salary as Rs.750/- p.m in his

petition. The appellant has placed the copies of B.Com. (Hons.) on

record. The Minimum Wages on the date of the accident i.e.17.8.90

was Rs.1241/- per month. The appellant has suffered 80% disability

as per the disability certificate issued by the Board of doctors. The

appellant was 17 ½ years. At this age the appropriate multiplier

would be of 16. The Tribunal has assessed the loss of income at the

rate of Rs.1000/- p.m, taking into account the increments earned by

him, this compensation on account of permanent disability comes to

RS.(1000x12x16) i.e. Rs.1,92,000/-. This will also take care for

compensation in account of future loss of income and on account of

permanent disability.

17. As regards loss of earning, the appellant suffered amputation

and I consider that he could not have worked for about four months

because of the accident. I grant Rs.3000/- (750x4) on account of

loss of earning to the appellant.

18. As regards marriage prospects, considering the disability

suffered by the appellant, I grant a sum of Rs.25,000/- for loss of

marriage prospects to the appellant.

19. 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.

20. In view of the foregoing, Rs. 6000/-for medical expenses;

Rs.5000/- for conveyance; Rs.10,000/- for special diet; Rs.30,000/-

for pain and suffering; Rs.25,000/- for loss of amenities of life;

Rs.1,92,000/- for loss of future earning capacity; Rs.3000/- for loss of

earnings and Rs.25,000/- for marriage prospects.

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

enhanced to Rs.2,96,000/- from Rs. 1,45,000/- 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 30 days of this order.

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

04th May, 2009                             KAILASH GAMBHIR, J