Chandan Singh vs Dtc & Anr.
2009 Latest Caselaw 1825 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI
                             FAO NO.109/97

                                 Judgment reserved on: 1.4.2008
                                 Judgment delivered on:4.5.2009


Chandan Singh                                          ......Appellant
                                 Through Mr.OP Goyal, Adv

                                  Versus

D.T.C & Anr.                                       ........ Respondents

                                 Through: Mr.JN Agarwal, 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 23.08.97 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 77,000/- with an interest @ 12% PA for the injuries caused

to the claimant appellant in the motor accident.

The brief conspectus of facts is as under:

2. On 6.12.86 at about 9.30 a.m when the appellant was going on his

bicycle on Vikas Marg vehicle bearing registration no. DHP 2911 being

driven by Respondent no.2 hit the bicycle from behind as a result of

which the appellant sustained injuries. The accident took place because

of the rash and negligent driving of respondent no.2.

3. A claim petition was filed on 09.04.87 and an award was passed on

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

of the present appeal.

4. Sh. OP Goyal 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 and submitted that the tribunal

erred in assessing the income of the claimant appellant at Rs. 400/- PM

and stated that the same should have been Rs.750/-as per minimum

wages Act. Based on this, it is further contended that the loss of

income should also be enhanced, accordingly. It is further submitted

that Tribunal ought to have awarded atleast 60% loss of wages to the

appellant. The Counsel also expressed his discontent on the amount of

compensation granted towards medical expenses. He claimed an

amount of Rs.5000 to Rs.6000/- 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 treated for

multiple injuries and compound fracture in his right leg which was

subsequently amputated below knee, the learned Tribunal should have

considered awarding that amount. He claimed Rs.6,75,800/- towards loss

of permanent earning capacity. It is further submitted that the Tribunal

ought to have awarded cost of limb and cost of replacement of artificial

limb. The Tribunal awarded a sum of Rs.15,000/- towards mental pain

& suffering but the counsel shows his discontent to that as well and

averred that it should have been Rs.1,00,000/-. For permanent

disablement also he sought a sum of Rs.2,00,000/-.

5. Per contra, Mr. J.N. Aggarwal contended that the award passed by

the Tribunal is just and fair and does not require interference by this

Court.

6. I have heard counsel for the parties and perused the recod.

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 awarded Rs. 2000/- for expenses

towards medicines, special diet and conveyance expenses; Rs.15,000/-

for mental pain and sufferings; Rs.20,000/- towards loss of amenities;

Rs.10,000/- for loss of expectation of life; and Rs.30,000/- for loss of

earnings.

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

had not placed on record any medical bill. As regards expenses towards

medical, special diet and conveyance, the tribunal took cognizance of the

fact that the appellant sustained serious injuries and his right leg was

amputated and awarded Rs.2000/- under these heads. The accident has

taken place in the year 1986. I feel inclined to enhance the same to

Rs.15000/-.

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

15,000/- to the appellant. The appellant sustained fracture in his right leg

and his leg was amputated. In such circumstance, I feel that the

compensation towards mental pain & suffering should be enhanced to

Rs. 25,000/-.

11. 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. The right leg of the appellant was

amputated and he has to live without his leg for entire life. 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.50,000/-.

12. The Tribunal has rightly awarded Rs.10,000/- for loss of expectation

of life and I do not find any infirmity in the order in this regard.

13. As regards loss of earnings, due to permanent disability the

appellant has placed on record photocopy of one certificate issued from

his employer showing monthly salary as Rs.450/- p.m. Therefore

contention of Ld. counsel to consider minimum wages cannot be

considered. The accident took place in the year 1986. The appellant

suffered 60% disability as per the certificate available on file.

Considering the age of the appellant multiplier of 16 shall be appropriate.

The amount towards loss of earning is thus enhanced to Rs.51,840/- (450

x 12 x 16 x 60%).

14. In view of the foregoing, Rs.15,000/- is awarded for expenses

towards treatment, conveyance and special diet; Rs.25,000/- for pain and

sufferings, Rs.50,000/- for loss of amenities and loss of enjoyment of life

due to disability; Rs.10,000/- for expectancy of life; and Rs.51840/- for

future loss of income.

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

to Rs. 1,51,840/- from Rs.77,000/- 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.1 DTC within a period of 30 days from the date of this

order.

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

      04th May, 2009                                KAILASH GAMBHIR, J