Sh. Mangal vs Sh. Kale Singh & Ors.
2009 Latest Caselaw 1818 Del

               IN THE HIGH COURT OF DELHI AT NEW DELHI

                            FAO NO.110/2001

                       Judgment reserved on: 21.02.2008
                       Judgment delivered on: 04.05.2009

Sh.Mangal                                       ......Appellant

                            Through Mr.YR Sharma, Adv

Versus

Sh.Kale Singh & ors.                             ........ Respondents

Through: Sh.Pradeep Gaur,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 14/11/2000

for enhancement of compensation. The learned Tribunal awarded a

total amount of Rs. 60,000/- 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 16.2.87 at about 4.30 p.m the appellant was going towards

Badarpur side from Kalkaji Mandir side on his cycle at a slow speed on

his left hand side. When he reached near Kalkaji DTC Depot

Anandmaya Marg, at that time a truck bearing no. DEG 8619 came

from Kalkaji side at a very fast speed and struck against the petitioner.

Due to the forceful impact the front right wheel of the said truck

passed over the right leg of the appellant and he received compound

fracture in his right leg. The accident was caused due to rash and

negligent driving of the offending truck driven by its driver.

4. A claim petition was filed on 14/8/1987 and an award was passed

on 14/11/2000. Aggrieved with the said award enhancement is claimed

by way of the present appeal.

5. Sh. Y.R. Sharma counsel for the appellant claimant urged that the

tribunal erred in not assessing the income of the claimant appellant at

Rs. 3,940/- PM after considering future increase of income of the

appellant. He contended that the award towards conveyance charges,

special diet expenses and medical expenses should be enhanced to Rs.

1,00,000/-. The counsel also urged that the tribunal should have

awarded Rs. 50,000/- towards loss of amenities of life. The counsel

maintained that the tribunal should have also awarded compensation

towards reduction in income and should have awarded compensation

towards permanent disability considering it to the extent of 18%. The

counsel also averred that the tribunal erred in awarding interest for a

period of 8 years only and same should be allowed from the date of

filing of the petition till realisation.

6. Per contra, Mr. Pradeep Gaur, counsel for the respondent

insurance company submitted that the award passed by the tribunal is

just and fair and does not require any interference by this court.

7. I have heard the counsel for the parties 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. 10,000/- for

expenses towards medicines and Rs. 50,000/- towards loss of income,

present and future, considering the disability and pain and sufferings

suffered by the appellant.

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

placed on record any medical bill to prove the expenses towards the

same. But the tribunal after considering the nature of injuries in this

regard, awarded Rs. 10,000/- towards medical expenses. I do not find

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

with.

11. As regards conveyance and special diet expenses, nothing has

been brought on record. In the absence of any cogent evidence, I

consider that taking into account the nature of injuries suffered by the

injured a compensation in the sum of Rs.5000/- shall meet the ends of

justice.

12. As regards mental pain & suffering, the tribunal has not awarded

any compensation to the appellant. The appellant suffered fracture on

the right leg due to the accident and remained admitted in the hospital

for one month and during that period his injured leg was operated

upon and wounds on the other parts of the body. In such circumstance,

I feel that the compensation towards mental pain & suffering should be

awarded at Rs. 25,000/-.

13. As regards the compensation towards loss of future income for

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

the same. The income of the appellant was not proved though

averments were made that the appellant was earning Rs. 2,500/- to

3,000/- pm through his Bullock Cart. It is no more res integra that mere

bald assertions regarding the income of the injured are of no help to

the claimants in the absence of any reliable evidence being brought on

record. The thumb rule is that in the absence of clear and cogent

evidence pertaining to income of the injured learned Tribunal should

determine income of the injured 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 were Rs. 552/- per month. The

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

appellant at the time of the accident was 32 years, thus, the

appropriate multiplier would be 15 and the 10% disability of the

appellant was duly proved on record. As per the disability certificate

issued by the Safdarjung Hospital dated 22/12/1993 the appellant was

a case of Ankylosis right leg and suffered permanent disability of whole

body to the extent of 10%. Another disability certificate issued by Dr.

C.D. Prashar on the basis of the disability certificate issued by

Safdurjung Hospital and as per this, the appellant suffered 18%

permanent disability. When as per the said Dr. Parashar the said

certificate is based on the earlier certificate, I do not feel that the

tribunal erred in considering the disability as per the certificate issued

by Safdurjung Hospital in this regard. Therefore, after considering all

these factors, the compensation towards disability is awarded at Rs.

9,936/- (552x10/100x12x15) to the appellant.

14. 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 fracture on the right leg due to the accident and

remained admitted in the hospital for one month and during that

period his injured leg was operated upon, 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/-

.

15. 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. 552/- pm as discussed above and

awarded Rs. 552/- towards loss of income for 1 month as claimed by

the appellant for the period during which the appellant could not work.

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

awarding an interest for the period of 8 years only instead of allowing

the same from the date of filing of the petition till realization. The

compensation for the period when the appellant himself was negligent

in pursuing the case has been disallowed. On perusal of the award it

comes into light that the appellant had been negligent and also took a

lot of time in examining the witnesses. No doubt that the MV Act is a

beneficial piece of legislation, legislated with the purpose of giving

relief to the victim of the motor accident but at the same time, a victim

of the motor accident cannot be allowed to gain benefit out of his own

faults and negligence due to which delay was caused in disposal of the

case. Therefore, the tribunal rightly, disallowed the interest to the

appellant for the said period when the appellant was negligent in

pursuing the case. Therefore, no interference is made in the award on

this count.

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

towards medicines; Rs.5000/- for conveyance and special diet; Rs.

25,000/- for mental pain and sufferings; Rs. 25,000/- towards loss of

amenities; Rs. 50,000/- towards loss of income, present and future,

considering the disability and pain and sufferings suffered by the

appellant; Rs. 9936/- on account of permanent disability to the extent

of 10% and Rs. 552/- on account of loss of earnings.

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

enhanced to Rs. 1,15,488/- from Rs. 60,000/- 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 insurance company within a period

of 30 days from the date of this award.

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

May 04, 2009                                KAILASH GAMBHIR, J