Sh. Sadruddin vs Sh. Prem Singh & Ors
2009 Latest Caselaw 1821 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 372/1999

                      Judgment reserved on: 20.2.2008
%                     Judgment delivered on: 4.5.2009


Sh. Sadruddin                                ...... Appellant
                      Through: Mr. Y.R. Sharma, Advocate

                                versus


Sh. Prem Singh & Ors.                        ..... Respondents
                    Through: Mr. Manoj Ranjan Sinha, Advocate


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         NO
      in the Digest?


KAILASH GAMBHIR, J.

1. The present appeal arises out of the award of compensation

passed by the Learned Motor Accident Claim Tribunal on 10.5.99 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs.98,354/- 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 08.12.88, at about 11AM, the claimant Sh. Sadruddin while

driving his two wheeler scooter bearing registration no. DBO-9218 was

passing from Tek chand Railway crossing, New Delhi at a slow speed

on his proper left hand side. At that very time, a bus bearing

registration no. DBP-781 driven by R1 rashly and negligently and at a

fast speed came from Faridabad side and hit the petitioner appellant

from behind without blowing any horn or giving any signal. As a result,

Sadruddin suffered serious injuries.

4. A claim petition was filed on 29.05.89 and an award was passed

on 10.05.1999. 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 assessing the loss of income of the claimant

appellant at Rs. 1500/- and stated that the same should have been at

Rs.36,000/-. The Counsel also expressed his discontent on the amount

of compensation granted towards medical expenses. He claimed an

amount of Rs.20,000/- towards the medical treatment and expenses.

The claimant appellant did not produce medical bills to claim the

stated amount, but he contended that looking at the facts and

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

prolonged treatment, the learned Tribunal should have considered

awarding that amount. Enhancement is also claimed on the ground

that a sum of just Rs.10,000/- is awarded towards conveyance instead

of the claim of Rs.50,000/- . Amount towards the special diet is also

sought to be enhanced from Rs.5,000/- to Rs.1,50,000/-. The Tribunal

awarded a sum of Rs.60,000/- towards non-pecuniary damages/pain

and suffering but the counsel showed his discontent to that as well and

averred that it should have been Rs.2,00,000/-. Further, petitioner

claimed Rs.2,00,000/- for permanent disablement suffered by him.

Claimant appellant also claimed Rs.14,400/- towards the amount paid

to the attendant for rendering his services. Further, the counsel

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

instead of 18% pa.

6. Per contra, Mr. Manoj Ranjan Sinha counsel for the respondent

insurance company contended that the award passed by the Ld.

Tribunal in the facts of the present case is just and fair and does not

warrant interference of 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 has awarded Rs.11,874/- for

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

for conveyance expenses; Rs.60,000/- for non-pecuniary damages; and

Rs.1500/- on account of loss of income.

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

placed on record various bills bearing bill no. 85390 dated 22/12/1998

Ex PW2/4, which comes to a total of Rs3068/-, bills Ex. PW7/1 to Ex.

PW7/62 totalling for a sum of Rs.7869.65/- and bills Ex. PW3/2 to Ex.

PW3/21 totalling for a sum of Rs.936.35/-. As regards medical

expenses, the tribunal took cognizance of the fact that the appellant

sustained serious head injuries and awarded Rs.11,874/- towards

medical expenses on the basis of the aforesaid documents. I do not

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

interfered with.

11. As regards conveyance expenses, no documentary evidence was

produced on record. The appellant suffered head 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.

12. 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 head injuries, thus he must have

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

awarded Rs.5,000/- for special diet expenses. I do not find any infirmity

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

13. As regards compensation towards non pecuniary

damages/mental pain & suffering, permanent disability and loss of

amenities of life, the tribunal awarded Rs. 60,000/- to the appellant.

The Tribunal after considering the fact that due to the accident, the

entire life of the appellant was paralysed and same also affected the

life of the family members awarded the said amount. Considering that

the appellant sustained head injury and bruises & abrasions all over

the body, I feel that the compensation under these heads should have

been separately awarded by the tribunal. In this regard, Rs. 50,000/- is

awarded towards mental pain and sufferings.

14. As regards loss of earnings due to permanent disability of 50%,

considering that Tribunal assessed notional income of the appellant at

Rs. 3,000/- p.m. and considering that he was of 38 years of age at the

time of the accident and accident took place in 1988, the multiplier of

14 shall be appropriate, then loss of earnings due to disability shall

come to Rs. 2,52,000/- (3000 x 12 x 14 x 50%).

15. 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 amputation of his toe, 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/-

.

16. As regards medical attendant, claimant deposed that he engaged

an attendant at a salary of Rs.1200/-per month to look after him for a

period of about one year. The same fact has also come in the

deposition of PW-7 brother of the claimant. The appellant has claimed

compensation towards attendant charges incurred by the appellant for

one year @ Rs. 1200/-pm. But, no documentary proof was given in this

regard. Considering the fact that appellant suffered head injury which

would not have restricted his movements and also considering that he

had a large family comprising of five children and wife and also

considering the fact that he was earning about Rs.2,500/- pm, I feel

that he could not have afforded an attendant. Therefore, I am not

inclined to award any amount under this head as claimed by the

appellant.

17. As regards loss of earnings, no documentary proof regarding

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

notional income of the appellant at Rs. 3,000/- pm and awarded Rs.

1,500/- towards loss of income for 17 days, the period during which the

appellant could not work. It is no more res integra that mere bald

assertions regarding the income of the deceased 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 deceased learned Tribunal should

determine income of the deceased on the basis of the minimum wages

notified under the Minimum Wages Act. But considering that no dispute

in this regard is raised by the appellants, in the interest of justice, no

interference is made in the award.

18. 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,

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.

19. In view of the foregoing, Rs.11,874/- is awarded for expenses

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

conveyance expenses; Rs.50,000/- for mental pain and sufferings; Rs.

25,000/- for loss of amenities of life due to permanent disability; Rs.

2,52,000/- towards loss of earnings due to permanent disability and

Rs.1500/- on account of loss of income.

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

enhanced to Rs. 3,55,374/- from Rs. 98,354/- with interest on the

differential amount @ 7.5% per annum from the date of filing of the

petition till realisation 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 order.

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

04th May, 2009                         KAILASH GAMBHIR, J.