Rajiv Gupta vs Bhagwan Dass & Ors.
2012 Latest Caselaw 1860 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Reserved on: 15th March, 2012
                                        Pronounced on:19th March, 2012
+       FAO 198/1988

        RAJIV GUPTA                                ..... Appellant
                            Through:     Mr. Navneet Goyal, Adv.

                                   versus

        BHAGWAN DASS & ORS.                         ..... Respondents
                   Through:              Mr. Pankaj Seth, Adv. for R-3.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                            JUDGMENT

G. P. MITTAL, J.

1. The Appellant seeks enhancement of compensation of ` 34,000/- awarded to him for having suffered injuries in a motor accident which occurred on 14.06.1970. The Appellant suffered injuries in his left arm resulting into fracture of left arm with loss of part of bone and fracture of left forearm.

2. A Claim Petition claiming a compensation of ` 1,00,000/- was filed by the Appellant which came to be decided by an order dated 20.10.1987.

3. On the basis of the pleadings of the parties following issues were framed:-

(i) Whether the Petitioner received injuries as a result of rash and negligent driving of truck No.DLG 3307 on the part of the Respondent No.2 as alleged in the petition?

(ii) Whether the Respondents No.1 and 2 are the owners of truck No.DLG-3307 as alleged in the petition?

(iii) Whether the Respondent No.3 is not liable to pay any amount for the reasons alleged in the additional peal of its written statement?

(iv) To what amount of compensation, if any is the petitioner entitled?

(v) Relief."

4. On issue No.1 the Claims Tribunal held that the accident was caused on account of rash and negligent driving of truck No. DLG-3307 by the first Respondent. On issue No.2 it was held that the second Respondent Baldey Ram was the owner of the offending truck which was insured by the third Respondent. It was held that the first Respondent (before the Claims Tribunal) had no liability to pay the compensation. While dealing with issue No.3, it was held that the third Respondent (the Insurer) was liable to pay the compensation as may be awarded by the Claims Tribunal.

5. No Cross Appeal or Cross Objections have been filed either by the owner or the Insurer. The findings on these issues have, therefore, become final between the parties.

6. My task therefore remains to determine if the Appellant is

entitled to any enhancement.

7. A number of doctors were examined by the Appellant. I would refer to the testimony of PW-7 Dr. S.S. Sethi who was working as a Plastic Surgeon in G.B. Pant Hospital in the year 1970. He performed certain surgical procedure on the Appellant. Similarly, PW-8 Dr. A.Goel, Assistant Professor of Orthopedics performed five surgeries one after the other.

8. PW-7 Dr. S.S. Sethi deposed that on 23.07.1970 patient Rajiv Gupta was admitted in Nursing Home, G. B. Pant Hospital. He was operated upon on 29th July, 1970. His skin was taken from thigh and grafted on the left forearm and the arm. Second operation was performed by him on 2nd or 3rd September, 1970 when a pedicle skin grated from the chest to the arm was used to cover the exposed and affected bone of the arm. He was again operated on 23rd September when his pedicle from the chest to the arm was separated. The witness deposed that all surgical operations involved pain. He deposed that the Appellant remained under his treatment till January, 1971 as an outdoor patient. In cross-examination, the witness deposed that the Appellant had to pay the charges for the Nursing Home, medicines, bed, etc. He deposed that all the operations were performed under general anesthesia.

9. PW-8 Dr. A. Goel, Assistant Professor deposed that five surgeries were performed upon the Appellant. He deposed that

the Appellant remained under his treatment for about two years. He testified that ultimately the patient recovered but was left with multiple scars and shortening of the left arm bone by 1½ inches. The Appellant remained admitted in the hospital from 14.06.1970 to 26.06.1970, 23.07.1970 to 10.08.1970, 31.08.1970 to 02.10.1970 and from 07.12.1970 to 12.12.1970.

10. PW-9 Shri Ram Gupta, the Appellant's father corroborated PW-

7 and 8's testimony about the treatment in G.B. Pant Nursing Home. He deposed that a sum of ` 10,000/- was spent on purchase of medicines and payment of hospital charges. He paid another sum of ` 1,000/- to 1500/- for his son's treatment at Ghaziabad. A sum of ` 5,000/- was spent on special diet and ` 4,000/- was spent on conveyance. He deposed that the Appellant lost two years of his studies. He was shifted from Birla Public School, Pillani to St. Joseph College, Nainital in the 4th standard. He was re-admitted in 4th standard in June, 1972 at St. Joseph College. He had to incur expenditure of ` 8,000/- on additional fees for the same class and the documents were marked as Ex.PW-9/1 to Ex.PW-9/46.

11. Shri Ram Gupta deposed that due to the injuries growth of the Appellant's left hand had been restricted. It is shortened and is smaller as compared to the other hand. He could not play games, swim or ride. The disability and disfigurement will stand in the way of his marriage.

12. In General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs.) and Ors, (1994) 2 SCC 176, the Supreme Court observed 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.

13. It may be mentioned that the Trial Court record was destroyed and the photocopies of the statements of the witnesses were obtained from the Counsel for the Appellant and the record was reconstructed.

14. The Claims Tribunal awarded a compensation of ` 18,000/-

towards pain and suffering. Considering that the accident occurred in the year 1970 and the value of money at that time, this compensation seems to be adequate. PW-9's testimony that he had to incur extra expenditure of ` 8,000/- in fees for the 4th standard and shifting the school from Birla Public School,

Pillani to St. Joseph College, Nainital was not shaken in cross- examination. No rebuttal to the documents Mark PW-9/1 to PW-9/46 was made. Considering that it was a prestigious boarding school, expenditure of ` 8,000/- cannot be said to be exaggerated. I would accordingly award a sum of ` 8,000/- towards extra expenditure on studies as against a sum of Rs. 2,000/- provide by the Claims Tribunal.

15. The Appellant lost two years of his studies so he was left behind in his life by two years including his earnings for those two years. I would make a guess work and award a compensation of ` 10,000/- for the same.

16. The Appellant belonged to an affluent family. His father owned a car in those days and used to pay Income Tax @ ` 3,000/- per year. He was studying in boarding school initially at Birla Public School, Pillani and then at St. Joseph College, Nainital. The Appellant's testimony that his son was taking training in riding was not challenged. The Appellant was deprived of the pleasures and amenities in life i.e. swimming, riding apart from disfigurement and loss of marriage prospects. I would award a sum of ` 20,000/- towards loss of amenities in life and ` 20,000/- on account of disfigurement and loss of marriage prospects.

17. The compensation awarded under the heads of special diet and conveyance seems reasonable from 1970 standard.

18. The compensation awarded is recomputed as under:-

Sl. Compensation under Awarded by Awarded various heads the Claims by this No. Tribunal Court

1. Medical expenses ` 10,000/- ` 10,000/-

          2.    Conveyance                          ` 2,000/-            ` 2,000/-

          3.    Extra diet                          ` 2,000/-            ` 2,000/-

          4.    Extra expenditure           on      ` 2,000/-            ` 8,000/-
                studies

          5.    Mental Agony, Permanent            ` 18,000/-          ` 18,000/-
                Disability and Pain

          6.    Loss of studies and two                      --        ` 10,000/-
                years in life

          7.    Loss of amenities in life                    --        ` 20,000/-

          8.    Loss of marriage prospects                   --        ` 20,000/-
                and disfigurement

                                      Total        ` 34,000/-          ` 90,000/-

19. The compensation is enhanced from ` 34,000/- to ` 90,000/-.

The overall compensation is thus enhanced by ` 56,000/-.

20. It is urged by the learned counsel for the Appellant that till the year 2000, the trend of the Claims Tribunal and Courts was to grant interest @ 12% per annum considering the bank rate of interest at the relevant time. The Claims Tribunal awarded interest only @ 8% per annum on the ground that the Appellant

was also responsible for the delay. He took nine years to complete his evidence and sought successive adjournments. In the circumstances, I would not interfere with the discretion of the Claims Tribunal. I would, therefore, award interest @ 8% per annum only from the date of filing of the petition till the date of award and @ 12% per annum from the date of the award i.e. 20.10.1987 till 31.12.2000. The Appellant would be entitled to interest @ 7.5% per annum from 01.01.2001 to 31.12.2009. He would further be entitled to interest @ 9% per annum from 01.01.2010 till the date of deposit of the enhanced amount along with interest with Registrar General of this Court.

21. The third Respondent Insurer of the offending vehicle is directed to deposit the enhanced amount of ` 56,000/- alongwith interest as stated earlier within six weeks from the date of this order.

22. The Appeal is allowed in above terms.

23. No costs.

(G.P. MITTAL) JUDGE MARCH 19, 2012 vk