Maj (Now Col.Retd)Dushyant Lal ... vs Lt. N.K. Kohli & Ors.
2009 Latest Caselaw 1833 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 FAO NO.43/94


                                  Judgment reserved on: 05.02.2008

                                  Judgment delivered on:04.05.2009

Maj (now Col.Retd) Dushyant Lal Kapoor                  ......Appellant

                                    Through Mr.R.D.Sahalia, Adv

Versus

Lt.N.K.Kohli & Ors.                                 ........ Respondents

                                    Through: Mr.A.K.Bajpai, 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 28.9.93 for

enhancement of compensation. The learned Tribunal awarded a

total amount of Rs. 40,000/- 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 31.1.79 at about 7.30 p.m appellant alongwith his wife was

going on the Kachha patri along Mandir Marg towards Mall Road

crossing in Delhi Cantonment area. When they were going near

Bunglow no. 19 on the said road a motorcycle no. UTL 4390 which

was being driven by Respondent no.1 came from behind at a very

high speed and hit the appellant as a result of which he fell down &

sustained severe head injury as well as fracture of Tibia and Fabula

in the left leg. The accident took place due to rash and negligent

driving of respondent no.1. The appellant was removed to Army

hospital where he remained unconscious for a number of days. He

became permanently handicapped and his promotion chances got

completely ruined.

4. A claim petition was filed on 8.11.1979 and an award was

passed on 28.9.93. Aggrieved with the said award enhancement is

claimed by way of the present appeal.

5. Sh. RD Sahalia 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 not awarding adequate compensation on the heads

- mental pain and agony pain and sufferings, special diet,

conveyance, treatment and future conveyance. It is submitted that

the appellant remained in ICU for about 36 days and remained

unconscious for about a week. It is further urged that the Ld.Tribunal

has ignored the facts that the career of the appellant was ruined as

he could not get his promotion on time and may persons superseded

him. Ld. Counsel claimed the amount for loss of leaves suffered by

the appellant. Further the counsel pleaded that the counsel erred in

awarding an interest of 6% pa instead of 12% pa.

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

and perused the award.

7. In a plethora of cases the 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 has awarded Rs.30,000/- for

general damages and Rs.10,000/- for monetary loss on account of

delay in promotion.

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

not placed on record any bills of medicines. The appellant was

treated in Army Hospital which is a Government Hospital meant for

Army personnels. It is obvious that even in Government Hospital

some expenses are incurred for purchase of medicines from the

open market. But the appellant has not placed any bill on file. In

view of the injury suffered by the appellant, I award a sum of

Rs.5000/- to the appellant for medicines/medical expenses.

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

record. The appellant suffered fracture of Tibia and Fabula of left

leg. The tribunal has not awarded any amount towards conveyance.

In view of the nature of injury I grant a sum of Rs.5000/- to the

appellant for conveyance.

11. As regards special diet expenses, nothing was brought on

record by the appellant to prove the expenses incurred by him

towards special diet. The appellant sustained fracture in left leg. He

must have also consumed protein-rich/special diet for his early

recovery. I award a sum of Rs.7500/- to the appellant for special

diet.

12. As regards mental pain & suffering, the tribunal has not

awarded separately under this head. The appellant remained

admitted in the hospital for 36 days. He remained in ICU for 3 days.

His promotion to the post of Lt.Col. Was delayed for one year. He

sustained fracture of Tibia and Fabula of left leg. In such

circumstance, I feel that the compensation towards mental pain &

suffering should be granted to Rs.20,000/-.

13. As regards the compensation towards permanent disability, I

feel that the tribunal has not erred in not awarding the same. The

appellant has not placed any disability certificate before the

Ld.Tribunal. The Tribunal has rightly not awarded any compensation

for permanent disability. I do not find any infirmity in the order

passed by the Tribunal and the same is not interfered with.

14. 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/-.

15. As regards loss of Rs.150/- per month for one year because of

delay to the post of Ltd. Col., it has been proved by the appellant on

record by filing documents that his promotion was delayed for one

year. I am inclined to compensate the appellant for this and the

amount of compensation for one year comes to Rs. 1800/-.

16. As regard loss of earnings/loss of leaves, nothing has been

deposed by the appellant before the Tribunal that he suffered loss of

earnings/loss of leaves after the accident. The appellant is a

Government Servant. He remained admitted in the hospital for

about 36 days as per the deposition made by the appellant. After

discharge from hospital he must have spent sometime at home. I

consider that he would have taken leaves for about two months.

The appellant has mentioned his income as Rs.2000/- p.m in the

petition. Taking the same into consideration I award Rs.4000/- for

the loss of leaves suffered by him.

17. With regard to loss in future promotion, PW5 Lt.Col.RS Rathee

deposed that the appellant was placed in category A6 initially which

mean that he is temporary not fit for all duties and subsequently in

A3 which means that he is not fit for combat duties in hilly terrain

and cold areas. The appellant was also categorized Cat-P which

means low physical capability of the head and it was for about 8

months. He was under the treatment of Neuro Surgeon. Category -P

was not a permanent category and it was for about 8 months only.

However the appellant was in category A3 and A6 due to which the

the promotion chances of the appellant was affected. Considering

the above, I am inclined to award a sum of Rs. 30,000/- to the

appellant for loss of future promotion.

18. As regards the issue of interest that the rate of interest of 6%

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, 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 @ 6% pa by

the tribunal and the same is not interfered with.

19. In view of the foregoing, Rs.5000/- is awarded for expenses

towards treatment; Rs.7500/- for special diet; Rs.5000/- for

conveyance expenses; Rs.20,000/- for pain and suffering;

Rs.10,000/- for loss of amenities and enjoyment of life; Rs.1800/- for

loss of promotion to the post of Ltd.Col.; Rs.4000/- for loss of leaves

and Rs.30,000/- for loss of promotion.

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

enhanced to Rs. 83,300/- from Rs. 40,000/- 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 respondents as directed by the

tribunal within 30 days of this order.

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

04th May, 2009                               KAILASH GAMBHIR, J