Shri Kunwar Mahinder Singh vs Bhupindere Singh & Ors
2009 Latest Caselaw 1827 Del

        * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO NO. 98/2002



                      Judgment reserved on: 13.3.2008
%                     Judgment delivered on: 4.5.2009


Shri Kunwar Mahinder Singh                 ...... Appellants
                   Through: Mr. O.P. Goyal, Advocate

                                versus


Bhupinder Singh & Ors.                 ..... Respondents
                   Through: Mr. D.K. Sharma, 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 20.11.2001

for enhancement of compensation. The learned Tribunal awarded a

total amount of Rs.1,06,345/- with an interest @ 9% PA for the injuries

caused to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. On 20.9.98, at about 9:55AM, the appellant was proceeding on

his two wheeler scooter from his residence in Moti Bagh to his office i.e

High Court of Delhi at Sher Shah Road, New Delhi. When he reached

at C-Hexagen Road, opposite Jodhpur Hostel Mess, a bus bearing

registration no. DEP-5939 being driven by R1 in a rash and negligent

manner came from the side of Pandara Road. The said bus was taking

a turn towards Sher shah Road and in that process, the front left corner

of the bus struck against the rear side of the two wheeler scooter. The

front left door of the bus was flung opened and it also dashed against

the two wheeler scooter of the appellant. The appellant alongwith the

scooter was dragged by the bus causing extensive injuries to the

appellant.

4. A claim petition was filed on 17.3.1989 and an award was passed

on 20.11.2001. Aggrieved with the said award enhancement is claimed

by way of the present appeal.

5. Sh. O.P. 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. He assailed the said

judgment of Learned Tribunal firstly, on the ground that the tribunal

erred in granting Rs.20,000/- towards medical expenses. He contended

that an amount of Rs.2.75 Lacs towards the medical treatment and

expenses ought to have been awarded by the tribunal. 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 was operated for open

reduction and internal fixation of left ulna and bone grafting was also

done, the learned Tribunal should have considered awarding that

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

Rs.5000/- is awarded towards conveyance instead of the claim of

Rs.4,00,000/-. Amount towards the special diet is also sought to be

enhanced from Rs.5000/- to Rs.1,00,000/-. It is further stated that Ld.

Tribunal ought to have awarded Rs.3,00,000/- as damages for cost of

transport and conveyance during the treatment and afterwards. A

compensation of Rs.2,00,000/- is also sought on account of future

treatment. The counsel further stated that damages on account of

disfigurement of the body needs to be increased to Rs.2,00,000/-. It is

also stated by the counsel that the compensation of Rs.30,000/-

awarded by the Ld. Tribunal towards pain and suffering is on the lower

side. Further the counsel pleaded that the counsel erred in awarding

an interest of 9% pa instead of 15% p.a. It is further submitted that Ld.

Tribunal has not considered the fall in the value of money between the

date of accident and the date of judgment.

6. Mr. D.K. Sharma counsel for the respondent contended that the

award passed by the tribunal is just and fair thus, no interference is

warranted by 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 and

fatal accidents cases should be on awarding substantial, just and fair

damages and not mere token amount. In cases of personal injuries and

fatal accidents the general principle is that such sum of compensation

should be awarded which puts the injured or the claimants in case of

the fatal accidents matter in the same position as he would have been

had accident had 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.20,000/- for

expenses towards medicines; Rs.5000/- for special diet; Rs.5000/- for

conveyance expenses; Rs.10,000/- for transportation for the period of

one year for which he was unable to drive the two wheeler scooter;

Rs.30,000/- for mental pain and sufferings; Rs.20,000/- towards

disfigurement of the body; Rs.10,000/- towards future treatment and

Rs.6345/- on account of loss of leave.

10. The appellant suffered fracture of ribs (6 to 8on the right side),

fracture of right elbow and fracture of elbow joint. Apart from these, he

also suffered deep abrasions on the right side of the chest, right arm

and on the right side of the face as is evident from the photograph Ex.

PW11/64, PW11/64A, 65 and 69.

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

placed on record various bills which were proved by the statements of

PW 2 Ms. Manju Gupta; PW 3 Rajinder Kr. Gupta & PW9 Subhash

Mehta, which comes to a total of Rs. 15,660/-. As regards medical

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

suffered fracture of ribs (6 to 8on the right side), fracture of right elbow

and fracture of elbow joint. Apart from these, he also suffered deep

abrasions on the right side of the chest, right arm and on the right side

of the face as is evident from the photograph Ex. PW11/64, PW11/64A,

65 and 69 and awarded Rs. 20,000/- even though the appellant could

not prove that he had incurred the said amount towards medical

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

same is not interfered with.

12. As regards conveyance expenses, nothing has been brought on

record. The appellant suffered fracture of ribs (6 to 8on the right side),

fracture of right elbow and fracture of elbow joint. Apart from these, he

also suffered deep abrasions on the right side of the chest, right arm

and on the right side of the face as is evident from the photograph Ex.

PW11/64, PW11/64A, 65 and 69. 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.

13. 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 suffered fracture of

ribs (6 to 8on the right side), fracture of right elbow and fracture of

elbow joint. Apart from these, he also suffered deep abrasions on the

right side of the chest, right arm and on the right side of the face as is

evident from the photograph Ex. PW11/64, PW11/64A, 65 and 69, 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.

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

30,000/- to the appellant. The appellant suffered fracture of ribs (6 to

8on the right side), fracture of right elbow and fracture of elbow joint.

Apart from these, he also suffered deep abrasions on the right side of

the chest, right arm and on the right side of the face as is evident from

the photograph Ex. PW11/64, PW11/64A, 65 and 69 and he deposed as

PW 11 that he has scars on his body which are incurable and also that

pus comes out during summer from these scars and there is itching

and pain in them. He also stated that he cannot straighten his right

arm completely. In such circumstance, I feel that the compensation

towards mental pain & suffering should be enhanced to Rs. 50,000/-.

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

permanent disability, no disability certificate has been brought on

record, therefore, no compensation in this regard can be awarded.

16. As regards loss of amenities, 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. 50,000/-.

17. As regards, future medical expenses the tribunal awarded Rs.

10,000/-. Considering that the appellant suffered fracture of ribs (6 to

8on the right side), fracture of right elbow and fracture of elbow joint.

Apart from these, he also suffered deep abrasions on the right side of

the chest, right arm and on the right side of the face as is evident from

the photograph Ex. PW11/64, PW11/64A, 65 and 69 and he deposed as

PW 11 that he has scars on his body which are incurable and also that

pus comes out during summer from these scars and there is itching

and pain in them. He also stated that he cannot straighten his right

arm completely. I feel that the compensation under this head should

be enhanced to Rs. 25,000/-.

18. As regards disfigurement, the tribunal awarded Rs. 20,000/-. In

the facts of the present case, considering that it has come on record

that a large chunk of skin was scooped out from right arm and chest

and considering the condition of the scars, I feel that the same should

be enhanced to Rs. 25,000/-.

19. As regards the issue of interest that the rate of interest of 9% p.a.

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

enhanced to 15% 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 @ 9% pa

by the tribunal and the same is not interfered with.

20. In view of the foregoing, Rs.20,000/- is awarded for expenses

towards medicines; Rs.5000/- for special diet; Rs.5,000/- for

conveyance expenses; Rs.10,000/- for transportation for the period of

one year for which he was unable to drive the two wheeler scooter;

Rs.50,000/- for mental pain and sufferings; Rs.25,000/- towards

disfigurement of the body; Rs. 50,000/- for loss of amenities;

Rs.10,000/- towards future treatment and Rs.6345/- on account of loss

of leave.

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

enhanced to Rs. 1,81,345/- from Rs. 1,06,345/- 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 30 days of this order.

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

04th May, 2009                               KAILASH GAMBHIR, J.