Geeta Sharma vs Tarun Kumar & Ors.
2009 Latest Caselaw 1828 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                           FAO NO.118/02


                       Judgment reserved on: 13.03.2008
                       Judgment delivered on: 04.05.2009



Geeta Sharma                                    ......Appellant

                            Through Mr.O.P.Goyal, Adv

Versus

Tarun Kumar & Ors.                              ........ Respondents

                            Through: Mr.Pankaj Seth, 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 26.11.01

for enhancement of compensation. The learned Tribunal awarded a

total amount of Rs. 1,46,900/- 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 24.6.95 appellant Smt.Geeta Sharma was going on her two

wheeler scooter bearing registration no. DL 2SF 6708 to her

mother's residence and when she reached near Kamal Restaurant,

Anand Parbat there was a red light and she stopped. In the

meantime a tempo bearing registration no. HR 47 1112 being driven

in rash and negligent manner by Respondent no.1 came from behind

and hit against the appellant's scooter. The appellant was dragged

and in that process she suffered 30% disability.

4. A claim petition was filed on 16.8.95 and an award was passed

on 26.11.01. Aggrieved with the said award enhancement is claimed

by way of the present appeal.

5. The appellant/claimant has claimed enhancement through this

appeal. Sh.O.P.Goyal counsel for the appellant 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 not

awarding any compensation for permanent disability suffered by the

appellant and he claimed Rs.2.00 lacs for the same. It is further

submitted that the appellant suffered 30% disability due to fracture

of ribs and one ununited rib and multiple mal united ribs on both

sides. Ld.Tribunal has not acted upon the evidence of PW5 and Ld.

Tribunal ought to have taken the disability as 30% and accordingly

the loss of income amount should have been awarded. The Counsel

also expressed his discontent on the amount of compensation

granted towards medical expenses. He claimed an amount of

Rs.2,00,000/- towards the medical treatment and expenses. The

claimant even if has not able to produce medical bills to claim the

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

circumstance of the case the learned Tribunal should have

considered awarding that amount. Enhancement to Rs.2,00,000/- is

also claimed towards conveyance. It is further claimed that no

amount has been awarded by the Tribunal for the termination of

pregnancy due to injuries suffered by her and she claimed

Rs.10,00,000/- on this account. She further claimed Rs.3,00,000/- on

account of mental pain & suffering.

6. I have heard Ld.counsel for the appellant and the respondent

and perused the record.

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 into 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.80,000/- for

expenses towards medicines/medical treatment; Rs.5000/- for

special diet and conveyance expenses; Rs.11,900/- for loss of leave

and Rs.50,000/- for pain suffering.

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

appellant had placed on record various bills Ex.P1 to Ex.P45, which

comes to a total of Rs.79,978/-. The Ld.tribunal has rounded of the

same and awarded Rs.80,000/- for medical treatment. The Tribunal

rightly discarded the medical bills when have totally unrelated with

the injuries sustained by the appellant. I do not find any infirmity in

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

10. As regards conveyance expenses & special diet, nothing has

been brought on record. The appellant suffered multiple fracture of

ribs, multiple abrasions, contusions and lacerated wound,

periscapular haematoma of spleen, sucapsular haematoma right

lobe of liver and contusion of liver. The tribunal after taking note of

the fact that no cogent evidence has placed on record to prove

expenses incurred towards conveyance and special diet awarded

Rs.5000/-. However, looking into the nature of injuries suffered by

her, I am inclined to enhance the same to Rs.20,000/- (Rs.10,000/-

for conveyance and Rs.10,000/- for special diet).

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

Rs. 50,000/- to the appellant. The appellant sustained fracture of

ribs and her ribs were removed. As per her deposition she has even

suffered abortion as at the time of accident she was pregnant for

three months. In such circumstance, I feel that the compensation

towards mental pain & suffering is on lower side and therefore same

deserves to a separate amount of Rs.50,000/- is awarded towards

loss of three months foetus.

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

permanent disability, I feel that the tribunal has not erred in not

awarding the same. The appellant has placed certificate showing

30% permanent disability. Perusal of the certificate reveals that this

certificate has been issued by a private practitioner. It has not been

issued by Government Hospital and Board of Doctors constituted by

the Medical Superintendent. The Tribunal has discussed the

evidence of Dr.SPS Gujral, Orthopaedic Surgeon who was running his

clinic under the name and style, of 'Fracture Clinic' much in details

and found the same untrustworthy. No explanation comeforth as to

why disability certificate obtained from Ganga Ram Hospital where

she was admitted twice. I am not inclined to award any amount on

this count as the appellant failed to prove her permanent disability

to any ratio much less to the extent of 30%.

13. As regards medical attendants, no witness who attended the

appellant has been examined before the Tribunal. Even as per the

deposition made by the appellant before the Tribunal she has not

deposed that she employed any attendant during the period she

remained under treatment. I am not inclined to award any amount

on this count,

14. As regards loss of earnings, the Tribunal has awarded

Rs.11,900/-considering her income to be Rs.2643/- p.m for 4 ½

months. She was a Telephone operator in INS Sena Bhawan and

Superintendent has been examined by her from office who has

stated that she suffered loss of leaves for 4 ½ months. I do not find

any infirmity in the order passed by the Tribunal in this respect and

the same is not interfered with.

15. As regards future loss in earning capacity, the appellant could

not prove the disability certificate as per Law. Even the disability

certificate placed on record has not been issued by the Medical

Board of Doctors any Government Hospital or even from the hospital

where she was under treatment. Therefore, I am not inclined to

award any amount on this count.

16. 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 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, 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 @ 9% pa by the

tribunal and the same is not interfered with.

17. In view of the foregoing, Rs. 80,000/- is awarded for expenses

towards treatment; Rs.20,000/- for special diet and conveyance

expenses; Rs.50,000/- for loss pain and suffering; Rs.50,000/- for

loss of feotus and Rs.11,900/- for loss of leaves.

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

enhanced to Rs.2,11,900/- from Rs.1,46,900/- 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 as directed by the

tribunal within 30 days of this order.

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

04th May, 2009                           KAILASH GAMBHIR, J