IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.276/2000
Judgment reserved on: 7.3.2008
Judgment delivered on:27.4.2009
Devdutt ......Appellant
Through Mr.O.P.Mannie, Adv
Versus
Madan & Ors. ........ Respondents
Through: Nemo
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 07.03.2000 for
enhancement of compensation. The learned Tribunal awarded a total
amount of Rs.1,08,782/04 with an interest @ 12% PA for the injuries
caused to the claimant appellant in the motor accident.
2. The brief conspectus of facts is as under:
3. On 7.3.93 at about 5 p.m, appellant Dev Dutt was hit by Tempo
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bearing registration no. HR 26A 7190 at Mandoli Chungi opposite bus
stand at Wazirabad Road, Delhi. The tempo was being driven at a very
high speed in rash and negligent manner by respondent no.1 Madan. As
a result of the impact, the appellant received serious injuries on his
person. His right leg had to be amputated on account of injuries received
in the right leg. The appellant became permanent disabled.
4. A claim petition was filed on 21.5.93 and an award was passed on
7.3.2000. Aggrieved with the said award enhancement is claimed by way
of the present appeal.
5. Sh.O.P.Mannie counsel for the appellant/claimant claims
enhancement through this appeal. The counsel urged that the award
passed by the learned Tribunal is inadequate and insufficient looking at
the circumstances of the case. He averred for enhancement on the
ground that a sum of just Rs. 2000/- is awarded towards conveyance &
special diet instead of the claim of Rs.3000 for conveyance and
Rs.18,000/- for special diet. He also prayed for future conveyance since
the appellant has suffered 40% disability. Ld. Tribunal has failed to
appreciate that appellant has suffered 40% disability and he claimed
compensation for reduction in marriage prospects. It was further urged
that the Tribunal has erred in not paying any compensation on account
of reduction in earning capacity and future prospects of the appellant. It
was further urged that the Tribunal has erred in taking into account a
sum of RS.1342/- p.m for working out damages on account of disability
FAO No.276/00 Page no.2
and Tribunal ought to have taken into consideration the future
advancement in the career. The Tribunal has erred in not awarding
towards mental pain & suffering and the counsel shows his discontent
to that. It was further submitted that Ld. Tribunal has erred in not paying
any compensation for the loss of amenities of life, damages for loss of
expectation of life, inconvenience, hardship, discomfort etc as well as
disfigurement and for loss of studies. Further the counsel maintained
that the counsel erred in awarding an interest of 12% pa instead of 18%
pa.
6. Nobody appeared for the respondents.
7. I have heard the counsel for the appellant and perused the record.
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:
FAO No.276/00 Page no.3
“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 awarded Rs.3716.44 for expenses
towards medicines; Rs.2000/- for special diet & conveyance; and
Rs.1,03,065/60 for damages on account of disability.
10. On perusal of the award, it is manifest that the appellant had
placed on record various bills which comes to a total of Rs. 3716/44. As
regards medical expenses, the tribunal has awarded on the basis of the
bills placed on record. I do not find any infirmity in the order in this
regard and the same is not interfered with.
11. As regards conveyance, nothing has been brought on record. The
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appellant suffered amputation of his right leg below knee injuries. The
tribunal after taking notice of this fact and in the absence of any cogent
evidence awarded Rs.2000/- for conveyance expenses including special
diet. I enhance the same to Rs.5,000/- towards conveyance to the
appellant.
12. As regards special diet expenses, although nothing was brought on
record by the appellant to prove the expenses incurred by him towards
special diet but still the tribunal took notice of the fact that since the
appellant sustained serious injuries and thus he must have also
consumed protein-rich/special diet for his early recovery and awarded
Rs.2000/- for special diet including conveyance. Taking into consideration
the amputation suffered by the appellant and that he must have taken
high protein diet, I enhance the same to Rs.5,000/-.
13. As regards mental pain & suffering, the tribunal has erred in not
awarding any amount in this respect. The appellant suffered amputation
in his right leg below knee. In such circumstance, I feel that the
compensation towards mental pain & suffering should be granted at Rs.
50,000/-.
14. As regards the compensation towards disfigurement, considering
that the appellant has become permanently disabled and his right leg
was amputated due to which his body got disfigured. I feel that a sum of
Rs.25,000/- should be granted for disfigurement of body.
FAO No.276/00 Page no.5
15. As regards loss of amenities due to disablement, Compensation for
loss of amenities of life compensates victim for the limitation, resulting
from the defendant’s negligence, on the injured 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.
20,000/-.
16. As regards loss of studies, no material has been placed by the
appellant on file to prove that the appellant was studying at the time of
accident. However as per the petition his age has been mentioned as 13
years and that he is a student. Even nothing has been pleaded in the
plaint in this respect. As per the testimony of PW1 appellant he has
deposed in his testimony that at the time of accident he was studying in
class 6th. He could not go to school for about 8 months. He lost his
studies for about one year. Considering the above testimony, I grant a
sum of Rs. 25,000/- to the appellant for loss of his studies for one year.
17. As regards marriage prospectus, the appellant has to live with his
amputated leg and he might or might not get spouse for marriage. I
award a sum of Rs.20,000/- on this account.
FAO No.276/00 Page no.6
18. As regards damages on account of disability, the appellant was
a student at the time of accident and he was not earning anything. He
suffered 40% disability for a particular limb which can be considered 25%
for the whole body. Since there is no proof regarding income of the
appellant, I take into account the notional income of Rs.15,000/- p.a of
non-earning person. The appellant was 13 years of age at the time of
accident. The appropriate multiplier is 15 at the age of 13 years. The loss
of earning capacity @25% comes to Rs.3750/-p.a and after applying
multiplier of 15, the amount for damages on account of disability comes
to Rs.56,250/-. But considering that no dispute in this regard is raised by
the respondents, no interference in this regard is made in the award.
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 and the same should be
enhanced to 18% p.a., I feel that the rate of interest awarded by the
tribunal is just and fair and requires 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
FAO No.276/00 Page no.7
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.3716/- is awarded towards medicines;
Rs.5,000/- towards conveyance, Rs. 5,000/- towards special diet;
Rs.50,000/- towards pain and suffering, Rs.25,000/- towards
disfigurement; Rs.20,000/- towards amenities of life; Rs.25,000/- for loss
of studies ; Rs.20,000/- for marriage prospectus and Rs.1,03,065.60 for
damages due to disability.
21. In view of the above discussion, the total compensation is enhanced
to Rs.2,56,781/- from Rs.1,08,782.04 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 and within 30
days of this order.
22. With the above directions, the present appeal is disposed of.
April 27, 2009 KAILASH GAMBHIR, J. FAO No.276/00 Page no.8