IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.107/2001
Judgment reserved on: 29.2.2008
Judgment delivered on:4.5.2009
Jagdev Singh ......Appellant
Through Mr.S.C Singhal, Adv
Versus
Gurdip Singh & Others ........ Respondents
Through: None
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 21/9/2000 for
enhancement of compensation. The learned Tribunal awarded a total
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amount of Rs. 35,160/- 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 1.12.86 appellant Jagdev Singh was going on his two wheeler
scooter no. DBZ 9724 from his house to Red Fort at about 10 a.m. In
his front, car no.DLY 429 was going and just near the gate no.3 on the
main road opposite Exhition Ground, Pragati Maidan respondent no.1
stopped his car without any signal suddenly. As a result of which the
scooter of appellant struck on the back tail of the car and was grown
on the road with great impact resulting in multiple compound
injuries/fracture of both of his legs. Respondent no.1 was driving the
offending vehicle in rash and negligent manner,
4. A claim petition was filed on 27/8/1987 and an award was passed
on 21/9/2000. Aggrieved with the said award enhancement is claimed
by way of the present appeal.
5. Sh. S.C. Singhal counsel for the appellant claimant urged that the
tribunal erred in not assessing the income of the claimant appellant at
Rs. 4,000/- PM after considering future increase of income of the
appellant. He contended that the award towards mental pain and
FAO NO.107/2001 Page 2 of 8
sufferings should be enhanced to Rs. 2,00,000/-. The counsel also
urged that the tribunal should not have contributory negligence of the
appellant since, same was neither pleaded before the tribunal by the
respondents nor the same was in issue. The counsel maintained that
the tribunal should have also not deducted compensation towards
medical expenses while considering contributory negligence.
6. Per contra, Mr. D.K. Sharma, counsel for the respondent
insurance company submitted that the award passed by the tribunal is
just and fair and does not require any interference by this court.
7. I have heard the counsel for the parties 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
FAO NO.107/2001 Page 3 of 8
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 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. 47,779/- for expenses
towards medical treatment; Rs. 3112/- for medicines; Rs. 25,000/- for
mental pain and sufferings; and Rs. 12,000/- on account of loss of
earnings for six months.
FAO NO.107/2001 Page 4 of 8
10. On perusal of the award, it is manifest that the appellant had
placed on record various medical treatment bills PW3/1 to 6, which
comes to a total of Rs. 47,779/-. The appellant had also placed on
record medical bills, Exs. A1 to A 53 for a sum of Rs. 3,112/-. Thus, the
tribunal allowed the said amount of Rs. 3,112/- towards medicines and
Rs. 47,779/- towards medical treatment. I do not find any infirmity in
the order in this regard and the same is not interfered with.
11. As regards mental pain & suffering, the tribunal awarded Rs.
25,000/- to the appellant. The appellant sustained multiple compound
injuries on the body. In such circumstance, I feel that the
compensation towards mental pain & suffering does not warrant any
interference.
12. As regards the compensation towards permanent disability, no
disability certificate has been brought on record. Therefore, the
tribunal rightly did not allow compensation in this regard.
13. 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 multiple
FAO NO.107/2001 Page 5 of 8
compound injuries on the body, 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/-.
14. 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. 2,000/- pm and awarded Rs. 12,000/-/-
towards loss of income for 6 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. The tribunal ought to have
assessed the income of the appellant in accordance with the minimum
wages of a skilled workman, notified under The Minimum Wages Act on
the date of the accident, but since on applying the said principle at this
stage, the compensation under this head will dwindle down and
considering that no dispute in this regard is raised by the respondents,
thus in the interest of justice, the award is not interfered with in this
FAO NO.107/2001 Page 6 of 8
regard and compensation towards loss of income is taken at Rs.
12,000/-.
15. As regards the issue of contributory negligence, I am in
agreement with the contention of counsel for the appellant that in the
absence of any such contention of contributory negligence on the part
of the appellant having been raised by the respondents, the tribunal
cannot self assume such contentions and assess compensation. The
MV Act is a beneficial piece of legislation and the tribunals are required
to act within the premise of the powers conferred upon them by the
Act. Also, the tribunal cannot decide an issue without it being framed.
Thus, the award is modified in this regard.
16. In view of the foregoing, 47,779/- is awarded for expenses
towards medical treatment; Rs. 3112/- for medicines; Rs. 25,000/- for
mental pain and sufferings; Rs. 25,000/- towards loss of amenities; and
Rs. 12,000/- on account of loss of earnings for six months.
17. In view of the above discussion, the total compensation is
enhanced to Rs. 1,12,891/- from Rs. 35,160/- 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
FAO NO.107/2001 Page 7 of 8
to the appellant by the respondents as directed by the tribunal within
30 days of this order.
18. With the above directions, the present appeal is disposed of.
May 04, 2009 KAILASH GAMBHIR, J
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