Smt. Neenu Dutta vs Sh. Alimuddin & Ors
2009 Latest Caselaw 1822 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI
                            FAO NO.799/2003
                  Judgment reserved on: 15.2.2008
                  Judgment delivered on: 04.05.2009
Smt. Neenu Dutta                                             ......Appellant

                            Through Mr. Y.R. Sharma, Adv

                       Versus

Sh. Alimuddin & Ors.                               ........ Respondents

                         Through: Mr. R.N. Sharma, 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 22.08.03 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 32,000/- with an interest @ 8% PA for the injuries caused

to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. On 11.5.99 appellant was travelling in vehicle no. DL 1PA 1504

(bus) and was sitting on a seat just above the left rear wheel for going to

her residence. When the bus reached Narvana Road, near Vinod Nagar

Bus Stand, Delhi, the left rear tyre of the bus bursted. As a result thereof,

the aluminium sheet fixed on the floor of the bus got damaged. Because

of that the appellant suffered grievous injuries in her left leg by

entangling herself in the hole of the damaged floor.

4. A claim petition was filed on 11.1.2000 and an award was passed

on 22.08.03. 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 granting medical

expenses. He claimed an amount of Rs.20,000/- towards the medical

treatment and expenses. The claimant appellant is not able to 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

sustained fracture in her leg, the learned Tribunal must have considered

awarding that amount. Enhancement is also claimed on the ground that

a sum Rs.20,000/-should have been granted for conveyance whereas no

amount under this head has been granted. The Tribunal awarded a sum

of Rs. 10,000/- towards mental pain & suffering but the counsel shows

his discontent to that as well and averred that the leg of the appellant

remained plastered for six months and compensation should have been

Rs. 50,000/-. It is further stated that Ld.Tribunal has erred in awarding a

sum of Rs.18,000/- on account of loss of leave whereas the appellant was

getting RS.7914/-p.m and she remained on leave for 96 days. He claimed

a sum of Rs.25,500/- on this account. It is further averred that

Ld.Tribunal has erred in not granting any expenses for keeping maid

servant and he claimed Rs.24,000/- on this account. Further the counsel

pleaded that the Tribunal erred in awarding an interest of 8% pa

instead of 12% pa from the date of filing of the petition till realization.

6. I have heard the counsel for the appellant Sh YR Sharma and counsel for respondent Sh. RN Sharma 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.4000/- for expenses

towards medicines; Rs. 10,000 for mental pain and sufferings; &

Rs.18,000/- toward loss of leaves.

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

placed on record various bills which comes to a total of Rs. 3829.95/-

which are Ex.P1 to P15 issued by various medical stores. As regards

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

appellant sustained serious injuries and awarded Rs.4000/- even though

the appellant could not prove that she had incurred Rs.4000/- 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 injury in her leg. The tribunal has not

awarded any amount in this regard. Though, there is no cogent evidence

available on filed. However, I am inclined to award a sum of Rs.10,000/-

towards conveyance charges.

11. As regards special diet expenses, the Ld. Tribunal has not awarded

any amount. Nothing was brought on record by the appellant to prove

the expenses incurred by him towards special diet. Taking into account

the injury suffered by the appellant, I award a sum of Rs.10,000/-

towards special diet to the appellant.

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

Rs.10,000/- to the appellant. The appellant sustained injury in her leg. In

such circumstance, I feel that the compensation towards mental pain &

suffering should be enhanced to Rs. 15,000/-.

13. As regards the compensation towards permanent disability, there is

no certificate of disability available on file. It has also not been averred in

the appeal filed by the appellant. No relief is granted in this respect.

14. As regards medical attendants PW3 Ms. Har Bai stated that he was

working as an attendant for the appellant and used to get Rs.2000/- per

month. The period of employment with the appellant has not been

disclosed by her. As per leave certificate, the appellant remained at

house for about 96 days. Therefore, I award a sum of Rs.6000/- to the

appellant on this account.

15. 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.5000/-.

16. As regards loss of earnings/wages, the appellant was on leave

for about 96 days from her office. She is a Government employee. During

her leave period she has got her full wages. However, she suffered loss

of her leaves for 96 days. The tribunal has calculated the loss of leaves

by taking basic + DA as on the date of accident. In my view the Tribunal

has calculated the loss of leaves to the tune of Rs.18,000/- correctly and I

do not find any infirmity in the order passed by the Ld.Tribunal and the

same is not interfered with.

17. As regards the issue of interest that the rate of interest of 8% p.a.

awarded by the tribunal is on the lower side and the same should be

enhanced to 12% p.a from the date of filing of the petition till realisation,

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 @ 8% pa by the

tribunal and the same is not interfered with. However, I award the said

interest from the date of filing of the petition till realisation.

18. In view of the foregoing, Rs. 4000/- is awarded for expenses

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

conveyance expenses; Rs.18,000/- for loss of leaves; Rs.5000/- for loss of

amenities and enjoyment of life; Rs.6000/- for attendant expenses; &

Rs.15,000/- for pain and sufferings.

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

to Rs. 68,000/- from Rs.32,000/- 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.

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

04th May, 2009                                  KAILASH GAMBHIR, J.