Delhi High Court High Court

Manoj Kumar vs Vijender Singh & Ors. on 4 May, 2009

Delhi High Court
Manoj Kumar vs Vijender Singh & Ors. on 4 May, 2009
Author: Kailash Gambhir
      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              FAO NO.314/03


                        Judgment reserved on: 29.02.2008
                        Judgment delivered on:04.05.2009

Manoj Kumar                                                ......Appellant

                               Through Mr.O.P.Goyal, Adv

Versus

Vijender Singh & Ors.                                ........ Respondents

                               Through: Mr.R.K.Tripathi, 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 5.3.03 for

enhancement of compensation. The learned Tribunal awarded a

FAO No. 314/2003 Page 1 of 8
total amount of Rs.4,67,000/- 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 11.6.93 the appellant was returning after appearing in Civil

Engineering examination in bus bearing registration no. DL 1P 3997

plying on route no. 131 from Lampur Border to Old Delhi Railway

Station. The bus was full of passengers. The driver of the offending

vehicle was driving in a rash and negligent manner and a in zig zag

way due to which some of the passengers fell on appellant and he

suffered a jerk and his right hand was thrown out of window and was

crushed by a truck bearing no. DEL 8018 which was coming from the

opposite direction. His hand was cut off and fell out of the bus. Only

1/3rd portion of the hand over the elbow was left.

4. A claim petition was filed on 09.12.94 and an award was

passed on 05.03.2003. Aggrieved with the said award enhancement

is claimed by way of the present appeal.

5. Sh. OP Goyal 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. He assailed the said

judgment of Learned Tribunal firstly, on the ground that the tribunal

erred in not awarding the special damages for a sum of Rs.93,000/-.

FAO No. 314/2003 Page 2 of 8
Ld. Tribunal ought to have calculated the loss in earning capacity as

80% for a period of atleast 50 years as appellant was below 20 years

of age at the time of accident. He claimed Rs.60,00,000/- for loss in

earning capacity. It is stated that Ld.Tribunal erred in assessing the

income of the claimant appellant at Rs.3000/- PM and he made the

said contention on the basis of the testimony of PW8 who in his

deposition disclosed his earning at Rs.8400/-p.m as on 8.1.2003.

Based on this, it is further contended that the loss of income should

also be enhanced, accordingly. The counsel expressed his

discontent that the Tribunal has not awarded any compensation for

permanent disability suffered by the appellant and he claimed

Rs.5.00 lac for permanent disability. The Counsel also expressed his

discontent on the amount of compensation granted towards medical

expenses. He claimed an amount of Rs. 1,25,000/- towards the

medical treatment and expenses and stated that looking at the facts

and circumstance of the case,the Tribunal ought to have awarded

this amount. The Tribunal awarded a sum of Rs. 20,000/- towards

mental pain & suffering, dietary and conveyance etc but the counsel

shows his discontent to that as well and averred that it should have

been Rs. 5,00,000/-including loss of enjoyment of life.

6. I have heard Ld. counsel for the appellant and the

respondents and perused the award.

FAO No. 314/2003 Page 3 of 8

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

FAO No. 314/2003 Page 4 of 8
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.4,32,000/- for

loss of earning capacity; Rs.15,000/- for medicines and Rs.20,000/-

towards pain, suffering, dietary, conveyance charges etc.

9. On perusal of the award, it becomes manifest that the

appellant had placed on record various bills which shows that he has

paid a sum of Rs.11,650/-. He has also placed some other receipts of

medicines. The Tribunal has granted Rs.15,000/- to the appellant

towards medicines. I do not find any infirmity in the order in this

regard and the same is not interfered with.

10. As regards conveyance, the tribunal awarded consolidated

amount of RS.20,000/- for pain & suffering, dietary, conveyance

charges etc. Instead of awarding separate damages under these

heads. I, therefore propose to award separate damages under these

heads. Nothing was brought on record by the appellant that he

spent money on conveyance. However, he must have performed to

and fro journey to hospital for his treatment. I am inclined to award

a sum of RS. 5000/- on this count.

11. As regards special diet expenses, although nothing was

brought on record by the appellant to prove the expenses incurred

FAO No. 314/2003 Page 5 of 8
by him towards special diet. The appellant suffered 85% permanent

disability as his right hand was amputated. He must have consumed

protein-rich/special diet for his early recovery. I award a sum of

Rs.10,000/- on account of special diet.

12. As regards mental pain & suffering, it is apparent that the

appellant suffered amputation of his right hand and as per the

disability certificate he suffered 85% disability. In such

circumstance, I feel that the compensation towards mental pain &

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

13. As regards the compensation towards permanent disability and

loss of amenities, I feel that the tribunal has erred in not awarding

the same. In view of the disability suffered by the appellant, I award

a sum of Rs.50,000/- on this count.

14. As regards loss of earning capacity, the appellant at the time

of accident was pursuing civil engineering. The appellant in his

testimony has deposed that due to loosing of his right hand he could

not pursue and complete diploma course in civil engineering. PW8

Manoj Kumar in his deposition stated that he was one year senior to

the appellant in the said course and got his job in the year 1996

after about one year of completion of diploma course. He further

deposed that he was earning a sum of Rs.8400/- as on thte date of

his deposition i.e. 8.1.2003. Based on the testimony of PW8 and of

FAO No. 314/2003 Page 6 of 8
the appellant himself the Ld. Tribunal notionally assessed the

income of the deceas3ed at Rs.3000/- p.m. The appellant in the

normal course would have also completed his diploma course in civil

engineering in the year 1996 and would have been in a position to

secure employment in the year 1997-98 as PW8 could get

employment just in a year’s time after completing the course. In

these circumstances I do not find any fault in the approach of the Ld.

Tribunal in taking the notional income but the same being little on

the lower side and looking into the earning of PW8 I assess the same

at Rs.4000/- as monthly income of the appellant the loss of income

would be 4000×85% which comes to Rs.3400/-. After applying the

appropriate multiplier of 16 as per the IInd schedule of MV Act the

exact loss of income would come to RS.6,52,800/-.

15. In view of the foregoing, Rs.15000/- is awarded for expenses

towards treatment; Rs.10,000/- for special diet; Rs.5000/- for

conveyance expenses; Rs.50,000/- for permanent disability and loss

of amenities; Rs.6,52,800/-for loss in earning capacity and

Rs.50,000/- for pain and sufferings.

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

enhanced to Rs.7,82,800/- from Rs.4,67,000/- 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

FAO No. 314/2003 Page 7 of 8
shall be paid to the appellant by all the respondents jointly and

severally within a period of 30 days from the date of this order.

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

04th May,2009                              KAILASH GAMBHIR,J




               FAO No. 314/2003                                Page 8 of 8