Shri K.B. Dhingra vs Shri Chaggu Ram & Ors.
2009 Latest Caselaw 1834 Del

         * IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     FAO No. 537/1999

                      Judgment reserved on: 9.4.2008
%                     Judgment delivered on: 4.5.2009


Shri K.B. Dhingra                           ...... Appellant
                      Through: Mr. M.L. Mahajan, Advocate

                                versus


Shri Chaggu Ram & Ors.                     ..... Respondents
                   Through: Mr. Kanwal Chaudhary, 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 2.9.99 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs.2,80,000/- with an interest @ 10% PA for the injuries

caused to the claimant appellant in the motor accident.

2. The brief conspectus of the facts is as follows:

3. On 29.11.88, the appellant was crossing the road from post office

on Shanker Road. At that time, a three wheeler scooter driven by R1

came at a very fast speed in a rash and negligent manner and hit the

appellant, as a result of which appellant fell down and became

unconscious and also suffered grievous injuries. A claim petition was

filed on 23.5.89 and an award was passed on 2.9.99. Aggrieved with

the said award enhancement is claimed by way of the present appeal.

4. Sh. M.L. Mahajan, 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 as appellant

suffered head injuries and also paralysis of the right hand and right leg

and on account of head injury, he developed mental as well as physical

disability. The counsel submitted that Ld. Tribunal erred in not granting

any compensation on account of pain & suffering, mental pain and

agony, loss for earning capacity, loss for expectation of life, loss of

amenities in life, disfigurement, discomfort besides disappointment,

frustration and mental stress and also to keep a permanent attendant

for rest of his life. Counsel for the appellants contended that the

tribunal also erred in not granting non pecuniary damages on account

of total wreck because the appellant has become permanently disabled

person being of unsound mind. It is stated that since appellant has

become a person of unsound mind, he requires the assistance of an

attendant throughout his life and Tribunal should have awarded

compensation on that count. It is also stated that Ld. Tribunal has

erred in deducting the pension while calculating the income of the

appellant. The counsel further stated that Ld. Tribunal has awarded

Rs.10,000/- towards medical expenses and same should have been

Rs.2Lacs as appellant is incurring expenses on medicine and has to

incur so throughout his life. It is also submitted that Ld. Tribunal

granted compensation only for 11 years whereas same should be

granted for 20 years. The counsel also stated that the order of Ld.

Tribunal directing 50% of the amount awarded to be deposited in FDR

for a period of six years is not justified in the present case as appellant

has no source of income and is dependent upon this amount for

meeting the expenses of his treatment and for looking after his family.

The counsel also raised the contention that the rate of interest allowed

by the tribunal is on the lower side and the tribunal should have

allowed simple interest @15 per annum in place of only 12% per

annum.

5. Per contra, Mr. Kanwal chaudhary counsel for the respondent

insurance company contended that the award passed by the Ld.

Tribunal in the facts of the present case is just and fair and does not

warrant interference of this court.

6. I have heard counsel for the parties and perused the award.

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 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 awarded Rs. 10,000/- for expenses

towards medicines; Rs.2,23,475/- for loss of appellant on account of his

compulsory retirement; and Rs. 47,000/- on account of permanent

disability to the extent of 60%.

9. PW1 Vinod Kumar who was working at the office of the appellant

deposed that the appellant was compulsorily retired from the office. He

deposed that date of birth of Mr. K.B. Dhingra is 5/3/1943 and he was

drawing a salary of Rs. 1,853/-pm. He also deposed that had the

deceased not met with the accident he would have become a Suptd.

Class II, Gazette Post. Dr. N.L. Gupta deposed that injuries sustained by

the injured are such that he may develop both mental as well as

physical disability. Smt. Rita wife of the appellant deposed that the

appellant is bed ridden since the date of the accident, he is senseless,

and he passes urine on bed and is not aware of his own condition. She

also deposed that her children or she herself is beside the appellant 24

hrs to attend him.

10. On perusal of the award, it is manifest that the appellant had not

placed on record any medical bill. As regards medical expenses, the

tribunal took cognizance of the fact that the appellant sustained

serious injuries; suffered head injuries and also paralysis of the right

hand and right leg and on account of head injury, he developed mental

as well as physical disability and awarded Rs. 10,000/- even though the

appellant could not prove that he had incurred Rs. 10,000/- towards

medical expenses. 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 serious injuries; suffered head injuries

and also paralysis of the right hand and right leg and on account of

head injury, he developed mental as well as physical disability injuries.

The tribunal after taking notice of this fact and in the absence of any

cogent evidence should have awarded Rs. 5,000/- for conveyance

expenses. Thus, the award is modified in this regard.

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 did not take notice of the fact

that since the appellant sustained serious injuries and sustained

serious injuries; suffered head injuries and also paralysis of the right

hand and right leg and on account of head injury, he developed mental

as well as physical disability, thus he must have also consumed

protein-rich/special diet for his early recovery and ought to have

awarded Rs. 5,000/- for special diet expenses. Thus, the award is

modified in this regard.

13. As regards mental pain & suffering, the tribunal did not award

anything to the appellant. The appellant sustained serious injuries;

suffered head injuries and also paralysis of the right hand and right leg

and on account of head injury, he developed mental as well as physical

disability and other minor wounds on the body. In such circumstance, I

feel that the compensation towards mental pain & suffering should be

enhanced to Rs. 25,000/-.

14. As regards the compensation towards loss of future earnings due

to permanent disability, the tribunal has rightly assessed the income of

the appellant. Learned Tribunal has rightly applied the multiplier and

also took note of the rise in income. I do not see any reason to

interfere in the same.

15. As regards medical attendants, Smt. Rita wife of the appellant

deposed that the appellant is bed ridden since the date of the

accident, he is senseless, and he passes urine on bed and is not aware

of his own condition. She also deposed that her children or she herself

is beside the appellant 24 hrs to attend him. It is a settled proposition

that even if a member of the family is rendering his/her service to the

injured, the compensation is required to be granted. The service

rendered by the family members is to be assessed in monitory.

However, such services cannot be quantified in a precise manner. Thus

taking into account the facts and circumstances of the case, I hereby

award a lump sum compensation of Rs. 25,000/- on this account.

16. As regards loss of amenities due to permanent disability,

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 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 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 @ 12%

pa by the tribunal and the same is not interfered with.

18. As regards the issue that the tribunal deposited a percentage of

the award amount in the nationalized bank, I feel that the same does

not suffer from infirmity. In Lilaben Udesing Gohel vs. Oriental

Insurance Co. Ltd. - 1996 ACJ 673 (SC) the Hon'ble Apex Court laid

broad guidelines which the Claims Tribunal should follow while

disposing of the claim applications arising under the Motor Vehicles

Act, 1939 to scotch complaints of misapplication of compensation

money and that as per those guidelines the compensation money

should be invested in a nationalised bank as a fixed deposit and the

interest thereon should be paid directly to the claimant or his guardian,

as the case may be. Therein, the Apex Court also held as follows:

8. Before proceeding to enumerate the various grounds on which the impugned judgment is challenged, it would be proper to have a look at the guidelines laid down in the case of Muljibhai 4 . The following part of that judgment needs to be quoted for the purpose:

"6. Having regard to the fact that day in and day out thousands of rupees are paid by way of compensation to various categories of claimants, we think that before we part, we may indicate a few broad guidelines which the Claims Tribunals may follow while disposing of claim applications arising under the Motor Vehicles Act, 1939, to scotch complaints of misapplication of compensation money:

( i ) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long-term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may however be allowed to be withdrawn; ( ii ) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in ( i ) above, but if lump sum payment is required for effecting purchases of any moveable or immovable property, such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;

( iii ) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at ( i ) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding existing business or for purchasing some property as mentioned in ( ii ) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;

( iv ) In the case of literate persons also the Tribunal may resort

to the procedure indicated in ( i ) above, subject to the relaxation set out in ( ii ) and ( iii ) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;

( v ) In the case of widows the Claims Tribunal should invariably follow the procedure set out in ( i ) above;

( vi ) In personal injury cases if further treatment is necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; ( vii ) In all cases in which investment in long-term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;

( viii ) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the Claims Tribunal may invest it in more than one fixed deposit so that if need be one such FDR can be liquidated."

This Court in the case of Union Carbide Corpn. v. Union of India 5 SCC (686) referred to the guidelines laid down in Muljibhai case 4 in laying down guidelines for disbursement of compensation to the gas victims of the well-known Bhopal disaster. The guidelines laid down in Union Carbide case 5 were in spirit quite similar to those laid down in Muljibhai case 4 . The Court, however, did not include the clause regarding literate persons' compensation also to be given the same treatment in case the Court found it necessary to do so to protect the compensation awarded to them.

19. Therefore, the appellant can always seek withdrawal of the said

deposited amount upon proof of exigency. Therefore, no interference is

made in the award on this count.

20. In view of the foregoing discussion, Rs. 10,000/- is awarded for

expenses towards medicines; Rs.2,23,475/- for loss of appellant on

account of his compulsory retirement and permanent disability; Rs.

5,000/- for special diet; Rs. 5,000/- for conveyance expenses; Rs.

50,000/- for loss of amenities; Rs. 25,000/- for mental pain and

sufferings and Rs. 25,000/- on account of attendant.

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

enhanced to Rs. 3,43,475/- from Rs. 2,80,000/- 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.