Harbhajan Singh vs Narender Kumar & Ors.
2009 Latest Caselaw 1816 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            FAO NO.585/99


                             Judgment reserved on: 07.03.2008
                             Judgment delivered on: 04.05.2009

Harbhajan Singh                                      ......Appellant

                                 Through Mr.Y.R.Sharma, Adv

Versus

Narender Kumar & & Ors.                           ........ Respondents

                                 Through: Ms.Gaganpreet Kaur, 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 17.09.99

for enhancement of compensation. The learned Tribunal awarded a

total amount of Rs.1,78,000/- 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 30.5.93 at about 6.25 p.m., Harbhajan Singh was returning

from Lajpat Nagar, New Delhi to his residence. He alighted from a

private bus plying on route no. 914 at Punjabi Bagh bus stop and

started going towards his house situated at Madhuban Enclave,

Madipur, Delhi. All of a sudden a bus bearing registration no. DL 1P

1756 came from the Punjabi Bagh side and hit the petitioner who fell

down on the road and sustained grievous injuries. He suffered

fracture of neck of right femur and was shifted to hospital. His

treatment however, continued for a number of days at different

hospitals. The accident was caused due to rash and negligent

driving of the offending bus driver.

4. A claim petition was filed on 30.11.93 and an award was

passed on 17.09.99. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Sh. Y.R.Sharma 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

awarding Rs.55,000/- only on account of treatment and medicines

whereas a sum of Rs.44,343/- has been proved on record towards

the treatment and medicines and the appellant is still under active

treatment of Dr.Sanjeev Khandari. The tribunal ought to have

awarded Rs.1,00,000/- towards the treatment and medicines.

Enhancement is also claimed on the ground that a sum of just

Rs.15,000/- is awarded towards conveyance instead of the claim of

Rs. 3,00,000/- . Amount towards the special diet is also sought to be

enhanced from Rs. 15,000/- to Rs.40,000/-. The Tribunal awarded a

sum of Rs. 15,000/- 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/-. For permanent disablement also he sought

enhancement from Rs 54,000/- to Rs.5,54,880/-. Amount towards

expenses incurred in repairing the damage to the car has also been

claimed to be awarded through this appeal. Further the counsel

pleaded that the tribunal erred in awarding an interest of 12% pa

instead of 15% pa. It is further contended that Ld.Tribunal ought to

have awarded atleast Rs.10,000/- towards cost of proceedings.

6. I have heard Sh YR Sharma Ld.counsel for the appellant and

Sh. Gaganpreet Kaur Counsel 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 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."

8. In the instant case the tribunal has awarded Rs. 55,000/- for

expenses towards medicines; Rs. 15,000/- for special diet;

Rs.15,000/- for conveyance expenses; Rs.24,000/- for keeping

medical attendants; Rs. 15,000/- for mental pain and sufferings;

Rs.54,000/- on account of permanent disability to the extent of 20%.

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

placed on record various bills against which the ld.tribunal has

awarded a sum of Rs. 55,000/- as against the bills of Rs.44,343/-. As

regards medical expenses, the tribunal took cognizance of the fact

that the appellant sustained serious fracture of neck of right femur

injuries in his spine and his right femur and awarded Rs.55,000/-

even though the appellant could not prove that he had incurred

Rs.55,000/- towards medical expenses. I do not find any infirmity in

the order in this regard and the same is not interfered with.

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

record. The appellant suffered fracture of neck and right femur. The

tribunal after taking notice of this fact and in the absence of any

cogent evidence awarded Rs.15,000/- for 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 took notice of the

fact that since the appellant sustained serious injuries, he must have

also consumed protein-rich/special diet for his early recovery and

awarded Rs.15,000/- for special diet expenses. I do not find any

infirmity in the order in this regard and the same is not interfered

with.

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

Rs. 15,000/- to the appellant. The appellant sustained fracture of

neck of right femure. In such circumstance, I feel that the

compensation towards mental pain & suffering should be enhanced

to Rs.30,000/-.

13. As regards the compensation towards loss of earning due to

permanent disability, I feel that the tribunal has erred in awarding

the same. The income of the appellant was assessed by the tribunal

at Rs.2500/- pm as per income tax return. The appellant has placed

on record two disability certificates one showing disability of less

than 40% and another showing disability of 34%. It is not clear

whether the disability is for whole body or particular limb. Hence, I

also take the disability to be 20%. By taking the loss of appellant to

be 20%, the loss comes to Rs.500/- p.m or 6000/- p.a. The appellant

met with the accident in the year 1993. The age of the appellant at

the time of the accident was 48 years. The appropriate multiplier at

the age of 48 years is of 13. Therefore, after considering all these

factors, the compensation towards disability is awarded at

Rs.78,000/- (Rs.6000x13) to the appellant.

14. As regards medical attendants PW3 Sh. Harjeet Singh stated

that he was working as an attendant for the appellant and used to

get Rs.2000/- per month and he worked for appellant for one year.

The Ld. Tribunal accordingly awarded Rs.24,000/- to the appellant

on account of attendant expenses. I do not find any infirmity in the

order of the Tribunal and the same is not interfered with.

15. 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.15,000/-.

16. As regards loss of earnings, the appellant has placed on record

his income tax return. Taking it into consideration the monthly

income of the appellant comes to Rs.2500/-. The appellant has

stated that he could not work for about one year as his shop

remained closed for one year. PW7 also corroborated his version. I

feel it to award a sum of Rs. 30,000/- (Rs.2500x12 months) to the

appellant on account of loss of earnings.

17. 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.

18. In view of the foregoing, Rs. 55,000/- is awarded for expenses

towards treatment; Rs.15,000/- for special diet; Rs.15,000/- for

conveyance expenses; Rs.30,000/- for loss of wages/earning; Rs.

15,000/- for loss of amenities and enjoyment of life & Rs.78,000/- for

permanent disability; Rs.24,000/- on account of charges of attendant

and Rs.30,000/- for pain and sufferings.

19. The appellant died during the pendency of the present appeal

and thus his LR's were impleaded as a party. Therefore, the

compensation shall fall in their hands as loss of estate.

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

enhanced to Rs.2,62,000/- from Rs.1,78,000/- 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.

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

      04th May, 2009                                 KAILASH GAMBHIR, J