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 ofFAO 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