Balwan Singh vs Sh. Randhir Singh & Ors.
2009 Latest Caselaw 1823 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 616/2002

                      Judgment reserved on: 28.2.2008
%                     Judgment delivered on: 4.5.2009


Balwan Singh                                 ...... Appellant
                      Through: Mr. O.P. Mannie, Advocate

                                versus


Sh. Randhir Singh & Ors.                   ..... Respondents
                    Through: Nemo.


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 2.8.2002 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs.88,300/- with an interest @ 9% p.a for a period of two

and a half years for the injuries caused to the claimant appellant in the

motor accident.

2. The brief conspectus of facts is as under:

3. On 27.12.97, at about 5PM, the appellant was getting down from

DTC bus bearing registration no. DBP-6372 at bus stand village Jaunti

and when he was in the process of getting down, the bus driver started

the bus with a jerk, as a result of which the appellant fell down and his

leg was crushed under the wheels of the bus.

4. A claim petition was filed on 6.8.98 and an award was passed on

2.8.2002. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Sh. O.P. Mannie, 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 contended that the

tribunal erred in assessing the income of the claimant appellant at Rs.

1800/- PM whereas the monthly income of the appellant was Rs.4000/-.

It was further contended that Ld. Tribunal erred in applying multiplier

of 12 while computing loss of earnings of the appellant since the

appellant was 44 years of age at the time of accident and has suffered

80% permanent disability and Ld. Tribunal ought to have applied

multiplier of 15 in reference to IInd Schedule of M.V Act. It was further

submitted that Ld. Tribunal erred in not considering the fact that

income of the appellant would have been increased with the passage

of time in near future and the fact that minimum wages are being

revised from time to time. Based on this, it is further contended that

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

expressed his discontent on the amount of compensation granted

towards treatment and medicines. He claimed an amount of

Rs.40,000/- towards the medical treatment and expenses.

Enhancement is also claimed on the ground that a sum of just

Rs.5,000/- is awarded towards conveyance instead of the claim of

Rs.25,000/-. The Tribunal awarded a sum of Rs. 25,000/- towards

mental pain & suffering but the counsel showed his discontent to that

as well and averred that it should have been Rs.1,00,000/-. It was

further urged by the counsel that tribunal erred in holding that

accident in question was caused on account of 50% contributory

negligence of the appellant. It is also submitted that Ld. Tribunal has

failed to appreciate that the tribunal on his own could not have

imagined a situation in favour of Delhi Transport Corporation without

any plea to that effect on their part. It is argued by the counsel that Ld.

Tribunal failed to appreciate that respondents have not taken any

defence that the accident was caused due to the negligence of

appellant himself. It was further argued by the counsel that Ld.

Tribunal erred in holding that the appellant was not fit for making

statement in the hospital as he was under the influence of liquor.

Further, the counsel pleaded that the tribunal erred in awarding an

interest of 9% p.a for a period of two and a half years and the same

should have been 18% p.a from the date of filing of the petition till

realisation.

6. Nobody appeared for the respondent.

7. I have heard counsel for the appellant and perused the record.

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. 10,000/- for

expenses towards medicines; Rs. 7,000/- for special diet; Rs. 5,000/-

for conveyance expenses; Rs. 25,000/- for mental pain and sufferings;

and Rs. 1,29,600/- on account of permanent disability to the extent of

50%.

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

placed on record medical bills which come to a total of Rs. 600/-. As

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

the appellant sustained grievous injuries and his right leg was

amputated above knee and awarded Rs. 10,000/- even though the

appellant could not prove that he had incurred said amount 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 expenses, nothing has been brought on

record. The appellant sustained grievous injuries and his right leg was

amputated above knee. The tribunal after taking notice of this fact and

in the absence of any cogent evidence awarded Rs. 5,000/- 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 grievous injuries and his right leg was

amputated above knee thus, he must have also consumed protein-

rich/special diet for his early recovery and awarded Rs. 7,000/- 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 mental pain & suffering, the tribunal has awarded Rs.

25,000/- to the appellant. The appellant sustained grievous injuries and

his right leg was amputated above knee. In such circumstance, I feel

that the compensation towards mental pain & suffering should be

enhanced to Rs. 50,000/-.

14. As regards the compensation towards loss of earning due to

permanent disability, the tribunal assessed the income of the appellant

by taking aid of the Minimum Wages Act as the appellant could not

bring on record any cogent evidence to prove that he was earning Rs.

4,000/- pm. The appellant merely deposed that he was a self employed

farmer and was also plying buffalo boggie earning Rs. 4,000/-pm.

Thus, the tribunal assessed the income of the deceased at Rs. 1,800/-

pm.

15. The appellants right leg was crushed in the accident and suffered

50% disability of the entire body. Ex. PW3/15 is the disability certificate

issued by the office of the civil surgeon, Jhajjar and according to it, he

suffered 80% disability due to amputation of his right leg above knee.

The age of the appellant at the time of the accident was 44 years and

the 50% disability of the appellant was duly proved on record as Ex.

PW3/15. The tribunal applied multiplier of 12 considering the age of the

appellant, I feel that the tribunal erred in this regard as this case

pertains to the year 1997 and by that time II Schedule to the MV Act

had already been brought on record. Thus, the applicable multiplier of

15 as per the II Schedule shall be applied herein. Therefore, after

considering all these factors, the compensation towards loss of

earnings due to disability is awarded at Rs. 1,62,000/- (1800 x 50/100

x 12 x 15) to the appellant.

16. As regards loss of amenities due to 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, 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/-.

17. As regards loss of earnings during treatment, it has come on

record that the appellant was under treatment for 2 months and 10

days. Considering the fact that the appellant would not have been able

to work, the tribunal ought to have awarded compensation in this

regard. In view of the foregoing, compensation for about three months

towards loss of earnings is assessed at Rs. 5,400/- (1800/- x 3).

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

awarded by the tribunal is on the lower side, 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 @ 8% pa by the tribunal and the

same is not interfered with.

19. As regards the contention that the tribunal awarded interest for

only 2 and a half years, I do not feel that the same requires any

interference by this court. The tribunal has observed in the award that

the claim petition was filed on 6/8/1998 and issues were framed in July

1999 and the appellant completed the evidence in August 2001. 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 for the said period of two and a half years.

Therefore, no interference is made in the award on this count.

20. As regards, the issue of contributory negligence, I feel that the

contention of the counsel for the appellant has merit. On perusal of the

award it is manifest that the tribunal on its own took up the issue of

contributory negligence when the same was not even raised by the

respondents. The tribunal has to decide the issue after considering the

rival contentions of the parties and does not have to imagine or self

assume the contentions, which are not raised by the parties. Thus, the

award is modified in this regard.

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

towards medicines; Rs. 7,000/- for special diet; Rs. 5,000/- for

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

25,000/- towards loss of amenities; Rs. 1,62,000/- on account of

permanent disability to the extent of 50% and Rs. 5,400/- on account

of loss of earnings.

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

enhanced to Rs. 2,64,400/- from Rs. 88,300/- 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 DTC within a period of 30 days from

the date of this award.

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

04th May, 2009                              KAILASH GAMBHIR, J.