Delhi High Court
Bhure Singh vs Ram Jeet Singh on 4 May, 2009
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.733/2003
Judgment reserved on: 29.02.2008
Judgment delivered on: 04.05.2009
Bhure Singh ......Appellant
Through Mr.JS Kanwar, Adv
Versus
Ram Jeet Singh ........ Respondents
Through: Mr.A.K.De, 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 14.7.03 for
enhancement of compensation. The learned Tribunal awarded a
total amount of Rs. 4,17,000/- with an interest @ 8% PA for the
injuries caused to the claimant appellant in the motor accident.
2. The brief conspectus of facts is as under:
3. On 5.7.97 when the petitioner was coming from Janakpuri
Dairy U.P Border on his bicycle , vehicle no. TATA 38 9348 came at
high speed without blowing any horn and hit the appellant due to
which the appellant sustained grievous injuries on his head, legs and
other parts of the body and became unconscious at the spot. Both
his hands and legs were bruised and injured very badly, and
suffered 90% permanent disability.
4. A claim petition was filed on 10.9.97 and an award was passed
on 14.7.03. Aggrieved with the said award enhancement is claimed
by way of the present appeal.
5. Sh.J.S.Kanwar 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 tribunal erred in not
believing the income stated by the appellant and corroborated by
his employer i.e. Rs.3000/- p.m. Ld. Tribunal erred in calculating the
loss of earning power without considering the nature of job, the
appellant was doing at the time of accident and Ld.Tribunal ought to
granted compensation on the basis of 100% disability and not on
90% basis. It is further contended that Ld.Tribunal has erred in not
considering the future prospects of the appellant. It is further urged
that Ld.Tribunal erred in applying the multiplier of 17 in the peculiar
facts and circumstances of the case. On the point of interest
awarded, it is submitted that the same has not been paid from the
date of filing of the petition and Ld. Tribunal erred in awarding the
interest of only 8%.
6. I have heard the counsel the appellant and the respondent
and have perused the record.
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 has awarded Rs.3,67,200/- for
reduction in earning capacity; Rs.10,000/- for expenses towards
medicines; Rs.40,000/- for pain & suffering.
9. On perusal of the award, it is manifest that the appellant had
not placed any bill before the Trial court. As regards medical
expenses, the tribunal took cognizance of the fact that the appellant
sustained serious injuries and he suffered 90% permanent disability.
Even though the appellant could not prove that he had incurred
expenses on medical treatment, still the Tribunal awarded
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.
10. As regards conveyance expenses, nothing has been proved on
record. The appellant suffered 90% disability. The tribunal has erred
in not awarding any amount on account of conveyance. Taking into
account the nature of injury and disability, I award a sum of
Rs.5000/- towards conveyance.
11. As regards special diet expenses, the Ld. Tribunal has erred in
not awarding the same. Though, nothing was brought on record by
the appellant to prove the expenses incurred by him towards special
diet yet since the appellant sustained serious injuries and he
suffered 90% disability, he must have also consumed protein-
rich/special diet for his early recovery. I am inclined to award
Rs.10,000/- for special diet expenses.
12. As regards mental pain & suffering, the tribunal has awarded
Rs. 40,000/- to the appellant. The appellant sustained 90%
permanent disability that too in right hand. In such circumstance, I
feel that the compensation towards mental pain & suffering is
inadequate and should be enhanced to Rs. 75,000/-.
13. As regards adopting multiplier of 18, the appellant mentioned
his age as 25 years at the time of filing of the petition. When his
statement on oath was recorded before the Tribunal he deposed his
age as 28 years. At the time of issuance of disability certificate his
age is mentioned as 30 years. In view of above, the appropriate
multiplier to be adopted is of 18 as per Second Schedule. The
appellant has stated his income to be Rs.3000/- p.m. but the tribunal
assessed it at Rs.1937/-p.m as it has not been proved by adducing
the evidence. It is no more res integra that mere bald assertions
regarding the income of the deceased are of no help to the
claimants in the absence of any reliable evidence being brought on
record. The thumb rule is that in the absence of clear and cogent
evidence pertaining to income of the deceased learned Tribunal
should determine income of the deceased on the basis of the
minimum wages notified under the Minimum Wages Act. The
tribunal ought to have assessed the income of the appellant in
accordance with the minimum wages of a unskilled workman,
notified under The Minimum Wages Act on the date of the accident,
which were Rs.1784/- per month (rounded of to Rs.1800/-) or
Rs.21600/- p.a. The appellant suffered 90% permanent disability.
Taking his loss of income to be 90% and by applying the
appropriate multiplier of 18, the loss of earning capacity comes to
Rs. 3,49,920/-. But considering that no dispute in this regard is made
by the respondents, thus, no interference is made in this regard.
14. As regards loss of amenities, Compensation for loss of
amenities of life compensates victim resulting from the defendant's
negligence, severely affects the 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.25,000/-.
15. As regards the issue of interest that the rate of interest of 8%
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, 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 @ 8% pa by the tribunal and the same is not interfered
with.
16. In view of the foregoing, Rs.10,000/- is awarded for expenses
towards treatment; Rs.10,000/- for special diet; Rs.5000/- for
conveyance expenses; Rs.25000/- for loss of amenities and
enjoyment of life & Rs.3,67,200/- for loss of earning capacity
because of permanent disability and Rs. 75,000/- for pain and
sufferings.
17. In view of the above discussion, the total compensation is
enhanced to Rs.4,92,200/- from Rs.4,17,000/- 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 respondent no.3 within a period
of 30 day from the date of this order.
18. With the above directions, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J
