* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 168/99
Judgment reserved on: 20.2.2008
% Judgment delivered on: 04.05.2009
Dr. Ravi Kant ...... Appellant
Through: Mr. Vimal Wadhawan, Advocate
versus
Shri Ved Ram & Ors. ..... Respondents
Through: Mr. Pradeep Gaur, Advocate
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 NO
in the Digest?
KAILASH GAMBHIR, J.
1. The present appeal arises out of the award of compensation
passed by the Learned Motor Accident Claim Tribunal on 5/11/1998 for
enhancement of compensation. The learned Tribunal awarded a total
FAO NO. 168/1999 Page 1 of 10
amount of Rs. 22,000/- 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 13.11.92 at about 1.30 p.m. the appellant was going on his
scooter while one Kishan Singh Verma was sitting on the pillion. When
they reached Sham Giri Temple cut at I.S.B.T. fly over road, they were
hit by a truck bearing registration No. DIG-8339 which was being
driven rashly and negligently by respondent No. 1 at a high speed. The
appellant fell down and received grievous injuries on his person.
4. A claim petition was filed on 31/1/1994 and an award was passed
on 5/11/1998. Aggrieved with the said award enhancement is claimed
by way of the present appeal.
5. Sh. Vimal Wadhawan counsel for the appellant claimant urged
that the tribunal erred in assessing the income of the claimant
appellant at Rs. 3,000/- PM and the same should have been assessed
at Rs. 6,000/-. Based on this, it is further contended that the
compensation for loss of income should also be enhanced, accordingly.
The Counsel also contended that the amount of compensation granted
towards medical expenses should be enhanced. He claimed an amount
FAO NO. 168/1999 Page 2 of 10
of Rs. 1,00,000/- towards the medical treatment and expenses.
Enhancement is also claimed at Rs. 50,000/- towards conveyance.
Amount towards the special diet is also sought to be enhanced to
50,000/-. The Tribunal awarded a sum of Rs. 3,000/- towards mental
pain & suffering but the appellant showed his discontent to that as well
and averred that it should have been Rs. 50,000/-. For permanent
disablement also he sought enhancement from Rs. 9,000/- to Rs.
1,16,640/-. Amount towards expenses incurred in repairing the
damage to the car is also claimed through this appeal. Further the
counsel urged that the tribunal erred in awarding an interest of 12% pa
from 31/1/1994 till 21/4/1994 and from 14/5/1994 till realization
instead of awarding the same from the date of filing of the petition till
realisation.
6. Per contra, Mr. Pradeep Gaur counsel for the respondent
insurance company refuted the contentions of the counsel for the
appellant and submitted that the award passed by the Ld. Tribunal is
just and fair and does not require any interference of this court.
7. I have heard learned counsel for the parties and perused the
record.
FAO NO. 168/1999 Page 3 of 10
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:
“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 )FAO NO. 168/1999 Page 4 of 10
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 has awarded Rs. 5,000/- for
expenses towards medicines; special diet; and conveyance expenses;
Rs. 3,000/- for mental pain and sufferings; Rs. 5,000/- on account of
temporary disability to the extent of 9% of his right elbow and Rs.
9,000/- on account of loss of earnings for three months.
10. The appellant deposed before the tribunal as PW3 that due to the
accident he received injuries on head and under right eye and also got
fracture of nasal bone, right and left shoulders, collar bone and right
jaw. His tooth got upset due to the accident and also received injuries
on wrist. He also received fracture on his right elbow and his lower lip
was stitched due to injuries. He also deposed that he received
abrasions and lacerated wounds on his right knee joint.
11. On perusal of the award, it is manifest that the appellant did not
place on record any medical bills or bills for purchase of electronic
FAO NO. 168/1999 Page 5 of 10
machines which he required for the treatment. As regards conveyance
expenses and special diet expenses also, nothing has been brought on
record. The tribunal took cognizance of the fact that the appellant
received injuries on head and under right eye and also got fracture of
nasal bone, right and left shoulders, collar bone and right jaw and
other injuries referred above and awarded Rs. 5,000/- even though the
appellant could not prove that he had incurred such an amount
towards medical expenses, conveyance expenses and special diet
expenses. I do not find any infirmity in the order in this regard and the
same is not interfered with.
12. As regards mental pain & suffering, the tribunal has awarded Rs.
3,000/- to the appellant. The appellant received injuries on head and
under right eye and also got fracture of nasal bone, right and left
shoulders, collar bone and right jaw. His tooth got upset due to the
accident and also received injuries on wrist. He also received fracture
on his right elbow and his lower lip was stitched due to injuries and
also received abrasions and lacerated wounds on his right knee joint.
In such circumstance, I feel that the compensation towards mental
pain & suffering should be enhanced to Rs. 25,000/-.
FAO NO. 168/1999 Page 6 of 10
13. As regards the compensation towards permanent disability, I feel
that the tribunal has erred in awarding the same. It has come in the
testimony of PW1 that the disability of the appellant is not permanent.
But considering that no dispute in this regard is made by the
respondents, no interference is made in the award on this count.
14. As regards expenses incurred in repairing the damage to his
scooter, the appellant had not placed on record anything to prove the
same. In the absence of any cogent or reliable material on record, I do
not wish to award any compensation in this regard.
15. As regards loss of amenities due to permanent disability resulting
from the defendant’s negligence, which affects the injured person’s
ability to participate in and derive pleasure from the normal activities
of daily life, and the individual’s inability to pursue his talents,
recreational interests, hobbies or avocations. Considering that the
appellant suffered amputation of his toe, I feel that the tribunal erred
in not awarding compensation under this head and in the
circumstances of the case same is allowed to the extent of Rs. 25,000/-
.
FAO NO. 168/1999 Page 7 of 10
16. As regards loss of earnings, no proof regarding income of the
appellant was brought on record. The tribunal assessed notional
income of the appellant at Rs. 3,000/- pm and awarded Rs. 9,000/-
towards loss of income for 3 months, the period during which the
appellant could not work. It is no more res integra that mere bald
assertions regarding the income of the injured are of no help to the
claimant 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 injured learned Tribunal should
determine income of the injured on the basis of the minimum wages
notified under the Minimum Wages Act. However, considering that no
dispute in this regard is raised by the respondents and that on applying
the said principle at this stage, the compensation under this head will
dwindle down and thus in the interest of justice, the award is not
interfered with in this regard and compensation towards loss of income
is taken at Rs. 9,000/-.
17. As regards the issue of interest that the tribunal erred in
awarding an interest for the period from 31/1/1994 till 21/4/1994 and
from 14/5/1994 till realization instead of allowing the same from the
date of filing of the petition till realization. The compensation for the
FAO NO. 168/1999 Page 8 of 10
period from 22.4.1994 to 13.5.1998 has been disallowed. But on
perusal of the award it comes into light that the appellant had been
negligent and also took a lot of time in examining the witnesses. The
claim petition was filed on 30/1/1994, issues were framed on
22/4/1994 and petitioner evidence was closed on 13/5/1998. No doubt
that the MV Act is a beneficial piece of legislation, legislated with the
purpose of giving relief to the victim of the motor accident but at the
same time, a victim of the motor accident cannot be allowed to gain
benefit out of his own faults and negligence due to which delay was
caused in disposal of the case. Therefore, the tribunal rightly,
disallowed the interest for the said period, from 22.4.1994 to
13.5.1998, to the appellant. Therefore, no interference is made in the
award on this count.
18. In view of the foregoing, Rs. 5,000/- is awarded for expenses
towards medicines; special diet; and conveyance expenses; Rs.
25,000/- for mental pain and sufferings; Rs. 25,000/- towards loss of
amenities; Rs. 5,000/- on account of temporary disability to the extent
of 9% and Rs. 9,000/- on account of loss of earnings.
FAO NO. 168/1999 Page 9 of 10
19. In view of the above discussion, the total compensation is
enhanced to Rs. 69,000/- from Rs. 22,000/- 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. 2 as directed by the tribunal
within a period of thirty days from the date of this order.
20. With the above directions, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J.
FAO NO. 168/1999 Page 10 of 10