Laxmi Narain vs Tirlochan Singh & Ors
2009 Latest Caselaw 1820 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI
                               FAO NO.289/99
                Judgment reserved on: 28.2.2008
                Judgment delivered on:4.5.2009
Laxmi Narain                                            ......Appellant

                           Through Mr. O.P. Goyal, Adv

                      Versus

Tirlochan Singh & Ors.                             ........ Respondents

                         Through: Mr. Kanwal Chaudhary, 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 01.05.99 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 95,400/- 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 2.6.89 at about 2 p.m, appellant Laxmi Narain was driving a two

wheeler scooter bearing registration no. DHF 5092 and was going

towards his house situated in Madipur, New Delhi. In the meantime bus

bearing registration no. DBP 3356 came on the wrong side of the road

and hit his scooter. As result of this, the petitioner fell down and received

injuries.

4. A claim petition was filed on 13.10.89 and an award was passed on

01.05.99. Aggrieved with the said award enhancement is claimed by way

of the present appeal.

5. Sh. O.P Goyal 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 assessing the

income of the claimant. The appellant was earning Rs.1500/- to Rs.

2000/- per month and loss of income for three years should have been

Rs.54,000/- instead of Rs.20,000/-. Based on this, it is further contended

that the loss of income should also be enhanced, accordingly. The

Counsel also expressed his discontent on the amount of compensation

granted towards medical expenses. Enhancement is also claimed on

the ground that a sum of just Rs. 10,000/- is awarded towards

conveyance. Amount towards the special diet is also sought to be

enhanced from Rs.5000/- to 20,000/-. The Tribunal awarded a sum of

Rs.5000/- towards mental pain & suffering but the counsel shows his

discontent to that as well and averred that it should have been Rs.

5,00,000/-. In respect to a sum of RS. 54,000/- for total loss of earnings

for a period of three years, learned counsent contended that the Tribunal

ought to have awarded 40% loss of wages and future prospects should

have been assessed. Loss of earning capacity of 40% for a period of 30

years should also have been awarded to the tune of Rs.3,60,000/-.

Amount towards expenses incurred in repairing the damage to the

vehicle is also pleaded through this appeal. Further the counsel pleaded

that the tribunal has erred in awarding the interest on Rs. 20,000/- only

and he claimed interest @ 18% p.a. w.e.f the date of filing of the petition.

6. I have heard the counsel for the appellant Sh.OP Goyal and Sh Kanwal Chaudhary Counsel for the 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 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.5000/- for expenses

towards medicines; Rs. 5000/- for special diet; Rs.10,000/- for

conveyance expenses; Rs. 5,000/- for mental pain and sufferings; Rs.

50,400/- on account of permanent disability to the extent of 20% and Rs.

20,000/- on account of loss of earnings.

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

placed on record various bills which are Ex.PW4/1 to Ex.PW4/67 which

comes to worth Rs.3,000/-. As regards medical expenses, the tribunal

took cognizance of the fact that the appellant sustained serious crush

injury in his leg (compound fracture of tibia and fibula of left leg).

awarded Rs.5000/- even though the appellant could not prove that he

had incurred Rs.5000/- towards medical expenses. The appellant has

been treated in Government Hospitals as per available record. 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 compound fracture injuries. The tribunal

after taking notice of this fact and in the absence of any cogent evidence

awarded Rs.10,000/- 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 and thus he must have also

consumed protein-rich/special diet for his early recovery and awarded Rs.

5000/- for special diet expenses. I do not finding any informing in the

order in this regard and same is not interference with.

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

5,000/- to the appellant. The appellant sustained compound fracture of

tibia and fabula in left leg and his skin was peeled off. He was also

operated and skin grafting was done. In such circumstance, I feel that

the compensation towards mental pain & suffering should be enhanced

to Rs. 50,000/-.

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

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

same. The income of the appellant was not duly proved. However, the

Tribunal has considered the income as Rs.1500/- p.m as mentioned in

the petitioner. The petitioner suffered 40% disability for a particular limb.

His disability therefore is taken as 20% for the whole body. In other

words his earning capacity has been reduced by Rs.300/- p.m. Or 3600

p.a. The age of the appellant is mentioned as 30 years as on the date of

accident. The appropriate multiplier at the age of 30 is of 18. Therefore

the amount for permanent disability comes to Rs. 64,800/-.

14. 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.20,000/-.

15. As regards loss of earnings during treatment, no proof

regarding income of the appellant was brought on record. The tribunal

assessed notional income of the appellant at Rs. 1500/- pm and awarded

Rs.20,000/- towards loss of income, the period during which the

appellant could not work. The appellant has stated that he could not

work for 3 years. In such a circumstances and facts of the case the

appellant is awarded a sum of Rs.25,000/- towards loss of income.

16. 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 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 interfered with.

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

towards treatment; Rs.5,000/- for special diet; Rs.10,000/- for

conveyance expenses; Rs.25,000/- for loss of wages; Rs.20,000/- for loss

of amenities and enjoyment of life & Rs.64,800-/- for permanent disability

and Rs.50,000/- for pain and sufferings.

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

to Rs.1,79,800/- from Rs.95,800/- 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 should be paid to the appellant by

the respondents as directed by the tribunal within 30 days of this order.

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

04th May, 2009                              KAILASH GAMBHIR, J