Delhi High Court
Ravinder Kumar vs Gulshan Kumar Sohi on 4 May, 2009
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.461/99
Judgment reserved on:28.2.2008
Judgment delivered on:4.5.2009
Ravinder Kumar ......Appellant
Through Mr.M.P.Sharma, Adv
Versus
Gulshan Kumar Sohi ........ Respondents
Through: Mr.Pradeep Gaur, 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 24.8.99 for
enhancement of compensation. The learned Tribunal awarded a
total amount of Rs.49,041/- with an interest @ 12% PA for the
injuries caused to the claimant appellant in the motor accident.
2. The brief conspectus of facts is as under:
3. On 28.11.1992 at about 8.30 p.m the appellant was coming
from his office at Connaught Place on his two wheeler at a very
normal speed and when he reached near E-2 Greater Kailash, car
no. DL 3C C3605 came at a very high speed from the opposite side
and hit the scooter of appellant bearing registration no. DL 3SC 6844
as a result of which the appellant fell down and received multiple
injuries. The accident was caused due to rash and negligent driving
by the respondent no.1 who was driving the offending car at a very
high speed. The appellant was removed to Mool Chand Khairti Ram
Hospital and remained admitted there from 29.11.92 to 10.12.92.
4. A claim petition was filed on 22.4.93 and an award was passed
on 24.8.99. Aggrieved with the said award enhancement is claimed
by way of the present appeal.
5. Sh.M.P.Sharma 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 Ld. Trial Court has
miserably failed to appreciate the facts of the case, evidence,
documents and law while passing the impugned Judgment. It is
further claimed that the Ld. Trial court has wrongly declined the
statement of PW5 who is the owner and partner of Kumar Industries.
It is further urged that court has erred in granting Rs.15,000/- for
10% permanent disability , pain and mental agony to the appellant.
Further the counsel pleaded that the Tribunal erred in awarding an
interest of 12% pa instead of 18% pa.
6. Mr. Pradeep Gaur, advocate for the respondent submitted that
there is no justification for interference in the Award.
7. I have heard the counsels for the appellant and respondent
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
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.23341/- for
expenditure on medicine and treatment, Rs. 800/- towards loss of
salary; Rs.10,000/- towards special diet, conveyance etc.,
Rs.15,000/- for pain and suffering.
10. On perusal of the award, it is manifest that the appellant had
placed on record various bills which are Ex.PW4/2 to Ex.PW4/5 total
of which comes to Rs.15,241/-. He also proved on record receipt Ex.
PW2/I for purchase of iron rod for a sum of RS.8000/- and X-ray
receipt Ex.PW4/2 for Rs.100/-. The total amount comes to
Rs.23,341/-. I do not find any infirmity in the order in this regard and
the same is not interfered with.
11. As regards conveyance expenses and special diet, nothing has
been brought on record. The appellant suffered fracture in his leg
and iron rod was inserted into his leg. The tribunal after taking note
of the fact that the appellant remained under medical treatment for
long period but in the absence of any cogent evidence awarded
Rs.10,000/- for conveyance & special diet etc. I am inclined to
enhance the same to Rs.15,000/-.
12. As regards mental pain & suffering, the tribunal has awarded
Rs. 15,000/- to the appellant. The appellant sustained fracture in his
leg and iron rod was inserted into it. In such circumstance, I feel that
the compensation towards mental pain & suffering should be
enhanced to Rs. 20,000/-.
13. As regards loss of amenities, 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. 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. 10,000/-.
14. As regards loss of earnings, the appellant has placed two
salary certificates on record. One has been issued by Kumar Hotels
and Restaurants showing his salary to be Rs.1500/- p.m and in
another certificate issued by Kumar Industries, monthly salary is
mentioned as Rs.800/- p.m. In the certificate issued by Kumar
Industries it is mentioned that the appellant was doing part time job.
Part time job is not a permanent job. The same cannot be taken into
account. IN view of the injury suffered by the appellant, I presume
that he could not have worked for 3 months. His loss of earning
comes to Rs. 4500/-.
15. As regards future loss in earning capacity, the appellant has
not filed any certificate of disability before the Tribunal. At the back
of registration card issued by Mool Chand Hospital, it is mentioned
by the doctor that the appellant has deformity of 10%. This
certificate has not been issued by the board of doctors constituted
by the Medical Superintendent of Government Hospital. Hence, this
certificate is of no evidentiary value. I am not inclined to grant any
compensation for future loss in earning capacity.
16. 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 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 @ 12% pa by the
tribunal and the same is not interfered with.
17. In view of the foregoing, Rs. 23,341/- is awarded for expenses
towards treatment; Rs.15,000/- for special diet & conveyance
expenses; Rs.4500/- for loss of wages; Rs.10,000/- for loss of
amenities and enjoyment of life & Rs.20,000/- for pain and
sufferings.
18. In view of the above discussion, the total compensation is
enhanced to Rs.72,841/- from Rs.49,041/- 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 insurance company within a
period of 30 days from the date of this order.
19. With the above directions, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J
