Achint Kaur Uppal vs Deepak Kumar & Others
2009 Latest Caselaw 1835 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

                             FAO NO.665/2002

                           Judgment reserved on: 11.02.2008
                           Judgment delivered on: 04.05.2009



Achint Kaur Uppal                                        ......Appellant

                             Through Mr.D.D Singh, Adv




Versus




Deepak Kumar & Others                            ........ Respondents

Through: None

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 26.8.2002 for

enhancement of compensation. The learned Tribunal awarded a total

amount of Rs. 1,83,120.50/- 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 21.4.98 at about 10 a.m appellant Achint Kaur was getting

ready to go on her scooter to Pragti Maidan with her son Inderdeep

Singh when Maruti Van bearing Registration no. DL 4CC 7894 being

driven in rash and negligent manner by respondent no.1 came from

behind and hit against the left arm of Achint Kaur and the handle of

her scooter in the process of overtaking the scooter from left side. Due

to impact both Achint Kaur and Inderdeep Singh fell on the road. Left

knee and leg of Achint Kaur were crushed while Inderdeep Singh

suffered fracture shaft of left tibia. Both were removed to hospital for

treatment.

4. A claim petition was filed on 15/1/99 and an award was passed on

26/8/2002. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Sh. D.D. Singh, counsel for the appellant claimant urged that the

tribunal erred in assessing the income of the claimant appellant as it

did not consider that the appellant was also earning by purchase and

sale of scrips. The counsel maintained that the tribunal erred in

awarding a lower amount of compensation towards pain and

sufferings, conveyance expenses and also erred in not allowing any

compensation towards loss of amenities, expenses on an attendant,

physiotherapy treatment and special diet expenses. the counsel

further contended that the tribunal erred in not assessing the

compensation towards permanent disability as per the principles of law

and awarded a lumpsum amount towards it. The counsel also

submitted that the tribunal erred in allowing interest @ 12% pa instead

of 15% pa.

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

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. 7039.50/- for

expenses towards medicines; Rs. 5,000/- for conveyance expenses; Rs.

25,000/- for mental pain and sufferings; Rs. 75,000/- on account of

permanent disability to the extent of 25% and Rs. 71,081/- on account

of loss of leave.

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

covered under the medical claim policy and the counsel of the

appellant before the tribunal submitted that the claim of the appellant

as regards medical expenses is restricted to Ex. PW7/1 to 26 which

amounted to Rs. 7039.50/- the tribunal awarded the said amount as

duly proved by the appellant. 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 suffered bicondylar fracture of left tibia apart

from other bruises on different parts of the body. The tribunal after

taking notice of this fact and in the absence of any cogent evidence

awarded Rs. 5,000/- 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 her

towards special diet but still the tribunal should have taken notice of

the fact that since the appellant sustained bicondylar fracture of left

tibia apart from other bruises on different parts of the body, thus, she

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

recovery and should 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 has awarded Rs.

25,000/- to the appellant. The appellant suffered bicondylar fracture of

left tibia apart from other bruises on different parts of the body. The

appellant also went through operations under local anesthesia twice. In

such circumstance, I feel that the compensation towards mental pain &

suffering should be enhanced to Rs. 50,000/-.

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

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

the same as per the settled principles of law. As per the disability

certificate issued by AIIMS, the appellant suffered 25% disability. The

appellant met with the accident in the year 1998. The appellant at the

time of the accident was of 38 years of age, thus the multiplier of 16

as per the II Schedule to the MV Act shall be applied. The income of the

appellant at the time of the accident was duly proved at Rs. 8671/- pm.

Therefore, after considering all these factors, the compensation

towards disability is awarded at Rs. 4,16,208/- (8671 x 12 x 16 x 25%)

to the appellant.

15. As regards expenses for physiotherapy treatment, the PW1 Dr.

A.K. Kochhar deposed that the problem of inability to walk of the

appellant would be solved if she takes physiotherapy treatment

continuously for 6 months. Also, considering the testimony of PW3

Physiotherapist, I feel that the tribunal erred in not allowing

compensation in this regard, I award compensation in this regard at Rs.

100 per visit, which would make compensation under this head at Rs.

18,000/- (100x30x6).

16. As regards house attendant, Sh. Naveen Chander Arya was

contended to be the person who was kept for attending the house and

assisting the appellant since she had suffered grievous injuries in the

accident and could not do household work. But the said Mr. Arya was

not examined before the tribunal, further, the receipt PW7/C also does

not contain any date of issue and also does not bear the address of the

said attendant. Thus, the tribunal rightly did not err in not awarding

any compensation in this regard.

17. 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 bicondylar fracture of left tibia apart from other

bruises on different parts of the body, 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. 25,000/-.

18. As regards loss of earnings, it has come on record that the

appellant remained on leave from 26/11/1998 to 24/6/1999 and then

from 4/10/1999 till 5/11/1999. PW2 R.S. Johar proved salary record of

the appellant vide Exs. PW4/O to T and the same contain details of the

salary of the appellant for each moth when she was on leave. After

considering the same, the tribunal assessed the loss of leave suffered

by the appellant at Rs. 71,081/-. I do not find any infirmity in this

regard. Thus, no interference is made on this count.

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

p.a. awarded by the tribunal is on the lower side, 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.

20. In view of the foregoing, Rs. 7039.50/- is awarded for expenses

towards medicines; Rs. 5,000/- for special diet; Rs. 5,000/- for

conveyance expenses; Rs. 18,000/- for physiotherapy treatment; Rs.

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

amenities; Rs. 4,16,208 on account of permanent disability to the

extent of 25% and Rs. 71,081/- on account of loss of earnings.

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

enhanced to Rs. 5,97,328.50/- from Rs. 1,83,120.50/- 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.

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

May, 04, 2009                               KAILASH GAMBHIR, J