Deepak Saxena vs Kulvinder Singh & Ors.
2009 Latest Caselaw 1829 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                          FAO NO.383/2002
                                  Judgment reserved on:28.2.2008
                                  Judgment delivered on:4.5.2009

Deepak Saxena                                    ......Appellant

                      Through Mr.Y.R.Sharma, Adv

Versus

Kulvinder 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 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 1.4.2002 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 18,102/- 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 1.7.91, the appellant was travelling in TSR alongwith his elder

brother and other persons and they were coming from Subzi Mandi

Railway Station and when the said TSR reached at Chowk of Road no.

40 and Road no. 37, Inderlok, Delhi at that time, a truck bearing

registration no. DEL-5763 driven by its driver in a rash and negligent

manner at a fast speed came and struck against the TSR. Due to the

forceful impact, the TSR overturned and appellant received grievous

injuries.

4. A claim petition was filed on 22.8.1991 and an award was passed

on 1.4.2002. Aggrieved with the said award enhancement is claimed

by way of the present appeal.

5. Sh.Y. R. Sharma, Ld. 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 awarding Rs.3602/- towards medicines and treatment

and stated that Tribunal should have awarded Rs.10,000/- on this

count. It is further argued that Ld. Tribunal has erred in awarding

Rs.5000/- towards pain & suffering and same should have been

Rs.25,000/-. The Counsel also expressed his discontent on the

amount of compensation granted towards loss in studies. He claimed

Rs.5000/- on this count. Further, Counsel submitted that Ld. Tribunal

has erred in awarding Rs.5000/- only on account of scars on the face of

the appellant and same should have been Rs.20,000/-. Amount

towards the special diet is also sought to be enhanced from Rs. 2000/-

to Rs.5000/-. Further Ld. counsel pleaded that the Tribunal erred in

awarding an interest of 9% p.a from the date of filing of the petition till

the date of decision minus five years instead of 12% p.a from the date

of filing of the petition till realization.

6. Nobody appeared for the respondents.

7. I have heard the counsel for the appellant 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. 1,602/- for

expenses towards medicines; Rs. 2,000/- for continuing/future

treatment; Rs. 2,000/- for special diet; Rs. 2,000/- for conveyance

expenses; Rs. 5,000/- for scars on the face; Rs. 500/- for loss of studies

and Rs. 5,000/- for mental pain and sufferings.

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

on record photocopy of medical bills, which comes to a total of Rs.

945/-. The appellant also placed on record medical bills, for a sum of

Rs. 701.03/-. As regards medical expenses, the tribunal took

cognizance of the fact that the appellant sustained head injuries along

with multiple facial cuts and fracture of the clavicle and awarded Rs.

1,602/- as duly proved on record. 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 head injuries along with multiple facial

cuts and fracture of the clavicle. The tribunal after taking notice of this

fact and in the absence of any cogent evidence awarded Rs. 2,000/- 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 head injuries along with multiple facial

cuts and fracture of the clavicle, thus he must have also consumed

protein-rich/special diet for his early recovery and awarded Rs. 2,000/-

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.

5,000/- to the appellant. The appellant sustained head injuries along

with multiple facial cuts and fracture of the clavicle. He was a small

child in class III, in such circumstance, I feel that the compensation

towards mental pain & suffering should be enhanced to Rs. 25,000/-.

14. 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 sustained head

injuries, multiple facial cuts and fracture of the clavicle, 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. 15,000/-

15. As regards compensation for scars on the face, the tribunal

awarded Rs. 5,000/-. Considering that the appellant, a small child,

sustained head injuries along with multiple facial cuts and fracture of

the clavicle, I feel that the compensation under the said head should

be enhanced to Rs. 15,000/-.

16. As regards loss of studies, no documentary evidence was brought

on record, but still the tribunal awarded Rs. 500/-. I do not feel that the

same requires any interference by this court.

17. As regards future treatment, considering that the appellant has

facial scars, I feel the compensation should be enhanced to Rs.

10,000/-.

18. As regards the issue of interest that the rate of interest of 12%

p.a. awarded by the tribunal is on the lower side and the same should

be enhanced to 12% 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.

19. In view of the foregoing, Rs. 1,602/- for expenses towards

medicines; Rs. 10,000/- for continuing/future treatment; Rs. 2,000/- for

special diet; Rs. 2,000/- for conveyance expenses; Rs. 15,000/- for

scars on the face; Rs. 15,000/- towards loss of amenities; Rs. 500/- for

loss of studies and Rs. 25,000/- for mental pain and sufferings.

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

enhanced to Rs. 71,102/- from Rs. 18,102/- 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.

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

      May 04, 2009                           KAILASH GAMBHIR, J