IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.364/99
Judgment reserved on:17.1.2008
Judgment delivered on:4.5.2009
Harish Kumar ......Appellant
Through Mr.O.P.Goyal, Adv
Versus
Ashok Kumar Tyagi ........ 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 28/4/99 for
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enhancement of compensation. The learned Tribunal awarded a total
amount of Rs. 8,500/- 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 29.12.86 appellant was crossing ring road near General Store,
Punjabi Bagh, Delhi where he was hit by motorcycle no. CHU 5992
driven by respondent no.1 Ashok Kumar Tyagi . After accident he was
removed to ESI Hospital. The left leg of the appellant was got fractured
in the accident.
4. A claim petition was filed on 29/6/87 and an award was passed on
28/4/99. Aggrieved with the said award enhancement is claimed by
way of the present appeal.
5. Sh. O.P. Goyal counsel for the appellant claimant urged that the
tribunal awarded inadequate amount towards conveyance expenses,
special diet expenses, mental pain and sufferings etc. The counsel also
contended that the tribunal erred in not awarding compensation
towards permanent disability, loss of income during treatment and loss
of amenities to the appellant. Further, the counsel submitted that the
tribunal erred in awarding an interest of 12% pa instead of 15% pa.
FAO NO. 364/99 Page 2 of 8
6. Nobody appeared for the respondents.
7. I have heard the counsel for the appellant and perused the
award.
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
FAO NO. 364/99 Page 3 of 8
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 has awarded Rs. 2,500/- for
expenses towards medicines; Rs. 2,500/- for special diet; Rs. 1,000/-
for conveyance expenses; and Rs. 2,500/- for mental pain and
sufferings.
10. On perusal of the award, it is manifest that the appellant received
fracture in his left leg, a cut wound in his right leg and stitches were
applied on the same. He also sustained injuries on the head and other
parts of the body. It has come on record that the treatment of the
appellant at the ESI hospital and the Safdurjung hospital was free of
charge. But still he must have purchased some medicines, considering
the same, the tribunal awarded Rs. 2,500/- towards medical expenses.
FAO NO. 364/99 Page 4 of 8
I do not find any infirmity in the order in this regard and the same is
not interfered with.
11. As regards conveyance expenses, nothing has been brought on
record. The appellant received fracture in his left leg, a cut wound in
his right leg and stitches were applied on the same. He also sustained
injuries on the head and other parts of the body. The tribunal after
taking notice of this fact and in the absence of any cogent evidence
awarded Rs. 1,000/- for conveyance expenses. I do not find any
infirmity in the order in this regard and the same is not interfered with.
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 received fracture in his left leg, a cut wound in his
right leg and stitches were applied on the same. He also sustained
injuries on the head and other parts of the body. Thus he must have
also consumed protein-rich/special diet for his early recovery and
awarded Rs. 2,500/- for special diet expenses. I do not find any
infirmity in the order in this regard and the same is not interfered with.
13. As regards mental pain & suffering, the tribunal awarded Rs.
2,500/- to the appellant. The appellant received fracture in his left leg,
FAO NO. 364/99 Page 5 of 8
a cut wound in his right leg and stitches were applied on the same. He
also sustained injuries on the head and other parts of the body. At the
time of the accident, appellant was of 17 years of age and was
studying in XII standard. In such circumstance, I feel that the
compensation towards mental pain & suffering should be enhanced to
Rs. 15,000/-.
14. As regards the compensation towards permanent disability, I feel
that the tribunal has not erred in not awarding the same. No disability
certificate has been brought on record to award compensation under
this head to the appellant. Thus, no interference is made in the award
in this regard.
15. As regards medical attendants, I feel that the tribunal has not
erred in not awarding the same. No evidence has been brought on
record to award compensation under this head to the appellant. Thus,
no interference is made in the award in this regard.
16. As regards loss of amenities, 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
FAO NO. 364/99 Page 6 of 8
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/-.
17. As regards loss of earnings, I feel that the tribunal has not erred
in not awarding the same. At the time of the accident, appellant was of
17 years of age and was studying in XII standard. Since nothing has
come on record to award compensation under this head, therefore, no
interference is made in the award in this regard.
18. As regards the issue of interest that the rate of interest of 12%
p.a. awarded by the tribunal is on the lower side, I feel that the rate of
interest awarded by the tribunal is just and fair and requires no
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, policy being adopted by Reserve
Bank of India from time to time and other economic factors. In the
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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.
19. In view of the foregoing, Rs. 2,500/- is awarded for expenses
towards medicines; Rs. 2,500/- for special diet; Rs. 1,000/- for
conveyance expenses; Rs. 15,000/- for mental pain and sufferings; and
Rs. 25,000/- towards loss of amenities.
20. In view of the above discussion, the total compensation is
enhanced to Rs. 46,000/- from Rs. 8,500/- 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 within 30
days of this order.
21. With the above directions, the present appeal is disposed of.
May 04,2009 KAILASH GAMBHIR, J
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