Delhi High Court
Jatinder Kaur Riar @ Nina Riar vs Jyoti Mittal & Ors. on 4 May, 2009
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.260/98
Judgment reserved on: 28.02.2008
Judgment delivered on: 04.05.2009
Jatinder Kaur Riar @ Nina Riar ......Appellant
Through Ms.S.Janani, Adv
Versus
Jyoti Mittal & Ors. ........ Respondents
Through: Mr.Bhupesh Narula, 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 3.4.98 for
enhancement of compensation. The learned Tribunal awarded a
total amount of Rs. 97,000/- 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 28.2.95 appellant Jatinder Kaur Riar was going to her
residence in her Maruti Car bearing registration no. DDC 2815 and
her daughter Simran Riar was also sitting besides her. When they
reached between sector 27 and 28, Noida an ambassador car
bearing no. DL 2C 8959 came from the opposite direction at a fast
speed being driven by Respondent no.1 in rash and negligent
manner and dashed against the maruti car of the appellant. As a
result of impact , appellant sustained serious injuries on her person.
Appellant remained admitted in the hospital from 28.2.95 to
11.3.95.
4. A claim petition was filed on 23.08.95 and an award was
passed on 3.4.98. Aggrieved with the said award enhancement is
claimed by way of the present appeal.
5. Ms.S.Janani Counsel for the appellant claimant 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 no
compensation was given towards cost of physiotherapy, special diet,
damage to car, economic loss due to leave taken by husband and
daughter, conveyance, loss of expectations of life, permanent
disability and treatment for future. The Counsel also expressed his
discontent on the amount of compensation granted towards
medical expenses. He claimed further medical expenses amount
of Rs.24540/- besides Rs.60,000/- granted by the Tribunal. He
further claimed an amount of RS.5500/- towards physiotherapy
charges. It is further stated that appellant is entitled to
compensation towards economic loss in regard to leave availed by
her husband and her daughter. The Tribunal awarded a sum of
Rs.25,000/- towards mental pain & suffering but the Tribunal
erred in not considering MLC Ex.PW1/1 showing three major
fractures. It is further contended that the Tribunal's finding that
there was no permanent disability is contrary to facts and evidence
on record and he claimed that appellant suffered disability of 30%.
Ld. Counsel further claimed Rs.50,000/- for loss of amenities of life
(including disability). Amount towards expenses incurred in
repairing the damage to the car is also pleaded through this
appeal for a sum of Rs.20,000/-.
6. I have heard the counsel for the appellant and the respondent
and perused the record.
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. 60,000/- for
expenses towards medicines; Rs.12,000/- for maid servant and
RS.25,000/- for pain and suffering.
9. On perusal of the award, it becomes manifest that the
appellant had placed on record various bills on file against which the
Tribunal has awarded a sum of Rs.60,000/- whereas the bills are for
a sum of RS.81,704/-. All the bills are exhibited on file and perusal of
the same I do not feel that the tribunal erred in this regard, thus,
no interference is made in this regard.
10. As regards conveyance expenses, nothing has been brought on
record. The appellant suffered communited fracture -right femur,
chantrick fracture - right femur and communited fracture - left wrist.
In the absence of any cogent evidence I award Rs.5000/- for
conveyance expenses.
11. As regards special diet expenses, nothing was brought on
record by the appellant to prove the expenses incurred by her
towards special diet. I feel that tribunal has committed error in not
awarding the same. The appellant must have also consumed
protein-rich/special diet for her early recovery. I therefore, award
Rs.10,000/- towards special diet.
12. As regards mental pain & suffering, the tribunal has awarded
Rs. 25,000/- to the appellant. The appellant sustained grievous
injuries on her body. In such circumstance, I feel that the
compensation towards mental pain & suffering has rightly been
granted by the Tribunal. I find no infirmity in the order in this respect
and the same is not interfered with.
13. As regards the compensation towards permanent disability, I
feel that the tribunal has not erred in not awarding the same. There
is no disability certificate issued by the competent board of doctors
on file. I feel that the Tribunal has rightly not awarded the amount in
this respect.
14. As regards loss of income, it is crystal clear that the appellant
is a housewife. However, it does not mean that her utility as a
housewife are to be under estimated. She performed her duties
towards her family. She is a non earning person and taking into
account the same, I consider that she can be given compensation
taking into account notional income. The notional income is
Rs.15,000/- p.a. Or Rs.1250/- p.m. Considering the injuries suffered
by the appellant I take that she could not have performed her work
for six months. I grant a sum of RS.7500/- in this respect.
15. AS regards Amount paid to maid servant, the Tribunal awarded
Rs.12,000/- for two years. I do not find any infirmity in the order in
this respect and the same is not interfered with.
16. As regards expenses incurred in repairing the damage of car,
the appellant has placed no document or bill or record that she had
spent some amount on repair of her car. It is no more res integra
that for arriving at a particular figure on each of the heads of
damages, the claimant is duty-bound to produce relevant materials,
on the basis of which, a determination could be made, as to what
would be the best compensation. In the absence of any cogent or
reliable material on record, I do not wish to award any compensation
in this regard.
17. 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. 10,000/-.
18. As regards loss of leave of husband, the appellant has placed
on file a leave certificate issued by Sh AB Aroskar, Wg.Cdr, Air
Headquarter wherein it has been stated that Wg Cdr HS Riar was on
leave from 1March 1995 to 30th March 1995 to attend his wife. The
monthly salary of HS Riar for the month of March 1995 as per salary
slip Ex.PW5/3 was Rs.9527/-. He took leaves for one month. I,
therefore award a sum of Rs.9527/- to the appellant on this account.
19. As regards loss of leaves of daughter of appellant, no material
or certificate of leave has been placed on record. I am not inclined to
award any amount for the same.
20. In view of the foregoing, Rs.60,000/- is awarded for expenses
towards treatment; Rs.10,000/- for special diet; Rs.5000/- for
conveyance expenses; Rs.7500/- for loss of work; Rs.10,000/- for
loss of amenities and enjoyment of life; Rs. 25,000/- for pain and
sufferings; Rs.12,000/- for amount paid to maid servant and
Rs.9527/- as loss of leave of husband of appellant.
21. In view of the above discussion, the total compensation is
enhanced to Rs.1,39,027/- from Rs.97,000/- 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 no.3 within a period
of 30 days from the date of this order.
22. With the above directions, the present appeal is disposed of.
04th May,2009 KAILASH GAMBHIR, J
