Delhi High Court
Rahul Kumar vs Om Prakash & Ors on 9 January, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 5th January, 2012
Pronounced on: 9th January, 2012
+ MAC.APP. 133/2004
RAHUL KUMAR ..... Appellant
Through: Mr. Rajiv Bakshi Advocate,
Ms. Suchi Smita, Advocate.
versus
OM PRAKASH & ORS. .... Respondents
Through: Mr. Pankaj Seth Advocate for
R-4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
CM APPL. 4502/2004 (delay in re-filing)
1. There is a delay of 90 days in re-filing the Appeal. For the
reasons stated in the application, the same is allowed. The
delay of 90 days in re-filing the Appeal is condoned.
MAC.APP. 133/2004
2. The Appellant seeks enhancement of compensation for having
suffered a fracture in his left leg and some facial injuries in an
accident which took place on 23.11.1988 at 10:15 P.M.
3. Appellant as PW-1 deposed that after the accident he was
removed to AIIMS where he remained admitted for one day.
He was shifted to Holy Family Hospital and remained admitted
there for two weeks. He was shifted and taken to Bombay
Hospital, Bombay where he remained admitted for three weeks.
The Appellant deposed that he spent a sum of `1,00,000/- on his
treatment and conveyance. He could not place on record any
original bill or cash memo with regard to the payment. The
Appellant deposed that the same had been misplaced.
4. The Tribunal believed that the accident was caused on account
of rashness and negligence on the part of the driver of vehicle
number DED 8173 and that the Appellant was entitled to
compensation. With regard to the quantum of compensation
and non production of the original bills, the Trial Court held as
under:-
"In the present case, the petitioner has not suffered
any disability. He has not examined any doctor to
prove that he had been operated upon. He has not
produced any witness to prove the cash memos/bills
(Photostate copies). There are cuttings and
interpolations in the bills. There is no corroborative
evidence to show that he was earning ` 4,000/- p.m.
In the petition it was mentioned that he was a student.
In column 6 nothing was mentioned as to how he has
been earning ` 4,000/- p.m. Keeping in view the facts
and circumstances of the case, as well as the evidence
led by the petitioner, following sum shall be just fair
compensation.
1. For pain, sufferings and immobility
(past and future) ` 15,000/-
2. For loss of expectation of life ` 10,000/-
3. For medicines ` 2,000/-
4. For conveyance and special diet ` 3,000/-
__________
TOTAL ` 30,000/-
__________
5. At the time of the accident, the Appellant was doing
Articleship with a Chartered Accountant. It was urged by the
learned counsel for the Appellant that he (the Appellant) shifted
to Bombay because his father was working in a private
company. It is contended that once the accident and the
treatment was believed, there was no ground to deny the amount
of ` 1,00,000/- spent on the treatment by the Appellant.
6. It is argued that another boy Anurag travelling with the
Appellant suffered minor injuries. He was awarded a
compensation of `50,000/- whereas the Appellant who suffered
much serious injuries was awarded a compensation of `
30,000/- only. It is submitted that the compensation awarded
towards pain and suffering is not just and fair.
7. On the other hand, it is urged by the learned counsel for the
Respondent Insurance Company that the Appellant's father was
working in a Private Company at Mumbai so non production of
the record and original bills for purchase of medicines with
regard to the Appellant's treatment would show that the
Appellant's father must have got reimbursement thereof either
from his employer or against a mediclaim policy.
8. Section 168 of the Motor Vehicles Act enjoins the Tribunal to
make an award determining the amount of compensation which
appears to be just. In the case of General Manager, Kerala State
Road Transport Corporation, Trivandrum v. Susamma Thomas
(Mrs.) and Ors. (1994) 2 SCC 176, it was held as under:-
".....that the determination of the quantum must
answer what contemporary society "would deem to be
a fair sum such as would allow the wrongdoer to hold
up his head among his neighbours and say with their
approval that he has done the fair thing". The amount
awarded must not be niggardly since the "law values
life and limb in a free society in generous scales". At
the same time, a misplaced sympathy, generosity and
benevolence cannot be the guiding factor for
determining the compensation. The object of
providing compensation is to place the claimant(s), to
the extent possible, in almost the same financial
position, as they were in before the accident and not
to make a fortune out of misfortune that has befallen
them."
9. It is important to note that the Appellant not only failed to
produce the original bills with regard to the purchase of
medicines and the payment made to the hospitals, he did not
produce any treatment papers in respect of the treatment
received by him in either the Holy Family Hospital or Bombay
Hospital, Bombay. In this view of the matter, the contention
raised on behalf of the Respondent Insurance Company that the
Appellant's father might have received reimbursement either
from his employer or against a mediclaim policy, cannot be
easily brushed aside.
10. Be that as it may, if the original bills regarding payment of
treatment and purchase of medicines were misplaced, the
Appellant ought to have led foundation for production of
secondary evidence and produce the same. As stated above, no
evidence as to the actual treatment received by the Appellant
was adduced.
11. Copy of the judgment or any other document in respect of the
compensation awarded in case of the Appellant's co-traveler
(Anurag) has not been placed on record. Each case has to be
decided on its own facts and circumstances. Without there being
any record as to what were the injuries suffered by the co-
traveler, the contention that the Appellant was discriminated
cannot be accepted. Moreover, in this case, the denial of the
compensation in respect of the amount spent on the treatment
was because of the non production of the original bills and
record with regard to the treatment of the Appellant.
12. The accident took place in the year 1988. An overall
compensation of ` 25,000/- towards non pecuniary damages, `
2,000/- for purchase of medicines and ` 3,000/- for conveyance
and special diet was awarded by the Tribunal. In the absence of
production of the original bills and the record regarding the
treatment, the Tribunal's findings cannot be faulted.
13. The Appeal is without any merit; the same is accordingly
dismissed. No costs.
(G.P. MITTAL)
JUDGE
JANUARY 09, 2012
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