* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 1/2001
Judgment reserved on: 4.2.2008
Judgment delivered on 6.4.2009
Sh. Chander Pal ...... Appellant
Through: Mr. Y.R. Sharma, Adv.
versus
Sh. Sehzad Ansari & Ors. ..... Respondents
Through: Mr. Kanwal Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J.
*
1. The present appeal arises out of the award of compensation
passed by the Learned Motor Accident Claim Tribunal on 19th
September 2000 for enhancement of compensation. The learned
Tribunal awarded a total amount of Rs. 1,25,000/- with an interest @
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10% PA for the injuries caused to the claimant appellant in the motor
accident.
2. The brief conspectus of facts is as under:
On 10th July 1992, the appellant Mr. Chander Pal, aged about 42 years
at the time of the accident, was riding his bicycle from his house. At
around 2:25 P.M. the appellant reached M.B. Road Near Hamdard when
he was hit by a truck bearing registration No. DL 1L 0949 being
driven in a rash and negligent manner. The front wheel of the truck ran
over the right foot of the appellant and it had to be amputated after 2
yrs of accident. In this regard, a claim petition was filed on 22nd
December 1992 and an award was passed on 19th September 2000.
Aggrieved with the said award enhancement is claimed by way of the
present appeal.
3. Sh. Y.R. Sharma, counsel for the appellant urged that the award
passed by the learned Tribunal is inadequate and insufficient looking at
the circumstances of the case. He assailed the judgment of Learned
Tribunal firstly, on the ground that the tribunal erred in assessing the
loss of income of the claimant appellant. It is argued that the appellant
had to take leave for 3 years from his work and thus loss of income for
FAO 1/2001 Page 2 of 13
entire period has to be awarded by the learned Tribunal. He made the
said contention on the basis of the statement of P.W. 6 and Ex. P.W.
6/1. The counsel also expressed his discontent on the amount of
compensation granted towards medical expenses. He claimed an
amount of Rs. 50,000 towards the medical treatment and expenses.
The claimant appellant was not able to produce medical bills to claim
the stated amount, but he contended that he could present medical
bills for an amount of about Rs. 25,000/- and that looking at the facts
and circumstance of the case and the nature of injuries sustained by
the appellant, the learned Tribunal ought to have considered awarding
the said amount. Enhancement is also claimed on the ground that a
mere sum of Rs. 5,000/- is awarded towards conveyance instead of the
claim of Rs. 10,000/- . The Tribunal awarded a sum of Rs. 1,00,000/-
towards mental pain & suffering and loss of amenities and expectation
of life, but the appellant showed his discontent to that as well and
averred that it should have been Rs. 2,00,000/-. He further pleaded
that the Tribunal erred in not awarding any compensation towards
permanent disablement and the same should be awarded. As per the
counsel, Tribunal also erred in not awarding any amount towards the
special diet which should have been granted. Compensation for the
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services rendered by an attendant said to be kept for a period of about
3 years is also sought. Cycle allowance which the appellant used to get
before the accident occurred is also claimed and a claim of Rs.
20,000/- in this respect is made.
4. Per Contra, Mr. Kanwal Chaudhary counsel for the Respondent
Insurance Company urged that the impugned award suffers from no
infirmity and deserves no interference. In furtherance of his
arguments, the learned counsel for the Insurance Company pleaded
that for the medical expenses, the learned Tribunal adequately
compensated the appellant in the impugned award. It is submitted by
the counsel that appellant could not bring on record bills for the entire
amount claimed. It was further pleaded in this regard that the
appellant could not even prove on record that treatment received by
him for the urine infection or the knee fusion was in any way related to
injuries suffered in the said accident. It is further pleaded that the
amount paid towards conveyance charges, pain and suffering and
other non pecuniary heads is also sufficient and adequate and requires
no interference. On the point of loss of salary, it is argued by the
counsel for insurance company that the Appellant failed to show on
record that for which period he could not attend his job and was not
FAO 1/2001 Page 4 of 13
paid the salary. On the point of compensation for personal asisstence
also, it is urged that there is no cogent proof in that regard to show
that an attendant was kept for a salary of 1,000/- P.M. which was half
of his own salary and for how long his services were availed.
5. I have heard both the counsel and perused the award.
6. In plethora of cases the Hon’ble Apex Court and various High
Courts have held that the emphasis of the courts in personal injury and
fatal accidents cases should be in 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 the 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 into 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)FAO 1/2001 Page 5 of 13
” 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.”
7. In the instant case the tribunal has awarded Rs. 20,000/- for
expenses towards medicines; Rs. 5,000/- for conveyance expenses;
and Rs. 1,00,000/- for mental pain and sufferings, loss of amenities and
loss of expectation of life.
8. On perusal of the award, it is manifest that the appellant had
placed on record various medical bills as Ex. PX 1 to 66. As per Ex. PX
37A dated 30/9/1999 a purchase of a single item of Rs. 770/- has been
made towards artificial limb. Further, according to the deposition of
PW4 Doctor Deepak Joshi, the appellant paid Rs. 4,500/- for amputation
FAO 1/2001 Page 6 of 13
of his right toe of right leg. It has also come on record that the right leg
of the appellant below knee was amputated in the year 1994. Again,
PW7 Doctor P.K. Kohli deposed that after 5 years of the accident the
appellant was admitted in the hospital for knee surgery as well as urine
infection and for the same the appellant incurred Rs. 16,385/-. Since
the appellant could not prove that the treatment under PW7 Dr. Kohli
was anyhow related to the accident, therefore, the tribunal took
cognizance of the sole fact that the right leg of the appellant below
knee was amputated and awarded Rs. 20,000/-. Even though the
appellant could not prove that he had incurred Rs.20,000/- towards
medical expenses yet I feel that the said amount is on the lower side
considering the gravity of the sufferings of the appellant. I feel that the
tribunal ought to have awarded at least Rs.30,000/- in this regard. The
enhancement is made under this head of compensation by this Court.
9. It has come on record in the deposition of the appellant that after
every three months he requires an artificial limb costing Rs. 770/-. But
the same has not been supported by any cogent evidence, but still Rs.
5,000/- is awarded towards future medical expenses.
FAO 1/2001 Page 7 of 13
10. As regards conveyance expenses, nothing has been brought on
record. In the accident, the front wheel of the truck ran over the right
foot of the appellant claimant. Earlier, only right toe of the right foot
was amputated but after a gap of about 2 years the entire right leg
below knee was amputated. The tribunal after taking note of this fact
and in the absence of any cogent evidence awarded Rs. 5,000/- for
conveyance expenses. I do not find any infirmity in the order in this
regard and the same is not interfered with.
11. 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 ought to have taken notice of
the fact that since the appellant sustained serious injuries in the
accident and his entire right leg below knee was amputated thus he
must have also consumed protein-rich/special diet for his early
recovery and should have at least awarded Rs. 5,000/- for special diet
expenses. Also, PW4 Dr. Deepak Joshi deposed that the appellant was
recommended protein rich diet by him. In these circumstances, I find
infirmity in the order in this regard and therefore, the award of
Rs.5,000/- is made in this regard.
FAO 1/2001 Page 8 of 13
12. As regards mental pain & suffering, loss of amenities and loss of
expectation of life, the tribunal has awarded Rs. 1,00,000/- to the
appellant. In the accident, the front wheel of the truck ran over the
right foot of the appellant claimant. Earlier, only right toe of the right
foot was amputated but after a gap of about 2 years the entire right
leg below knee was amputated and thus suffered 40% permanent
disability as per the deposition of PW8 Dr. V.K. Sharma of Safdurjang
Hospital. Compensation for loss of amenities of life compensates victim
for the shortcomings, defects or restrictions 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. In such circumstance, I feel that the
compensation towards mental pain & suffering, loss of amenities and
loss of expectation of life, as awarded by the tribunal is just and fair.
13. As regards the compensation towards permanent disability, I feel
that the tribunal has erred in not awarding the same. It has come on
record that in the accident, the front wheel of the truck ran over the
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right foot of the appellant claimant. Earlier, only right toe of the right
foot was amputated but after a gap of about 2 years the entire right
leg below knee was amputated and thus suffered 40% permanent
disability as per the deposition of PW8 Dr. V.K. Sharma of Safdurjang
Hospital. According to the PW 6 Sh. Ram Phal the appellant drew his
last salary in Nov 1996 and since December 1996 he has not been
getting anything from his employer. The said witness deposed that the
appellant joined services with DDA on 5/6/1980 at a salary of Rs. 196
and he drew his last salary for November 1996 at Rs. 2592/-. On
account of 40% disability due to which the appellant was unable to do
any work in his office, the tribunal ought to have awarded some
compensation. The injured was around 42 years of age at the time of
accident. As per second Schedule, at the age of 42, the multiplier of 15
has been prescribed. Thus taking into account the income of Rs. 2592/-
p.m. and disability to the extent of 40%, the compensation on account
of permanent disability comes to Rs. 1,86,624/- (2592 x 12 x 40/100 x
15).
14. As regards medical attendants Sh. Rajpal PW6 stated as on
24/7/1997 that he was working as an attendant for the appellant and
used to get Rs. 800 per month, in the year 1992-1994 and since
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January 1995 he was getting Rs.1,000pm plus food and clothings and
he used to work 24 hrs. for the appellant. He deposed that he helped
the appellant for his natural calls and in his other daily routine. He also
stated that he used to go to purchase medicines from the market and
other items required by the appellant. The appellant has claimed
compensation towards attendant charges incurred by the appellant
from August 1992 to December 1997 @ Rs. 800 per month, for the
year 1992-1994 and Rs.1,000pm from January 1995 to December
1995. But, no documentary proof was given in this regard. I feel that
since the appellant’s right leg below knee was amputated he must
have required assistance of some person. But it does not seem correct
that the appellant took assistance of an attendant since the time of the
accident. The right leg below knee of the appellant was amputated in
the year 1994 and I feel that the compensation under this head should
be awarded from the time the right leg below knee of the appellant
was amputated. In the facts of the present case, Rs. 5,000/- is
awarded in this regard.
15. As regards loss of earnings, the income of the appellant was duly
proved at Rs. 2908/- pm by Pw 6 Sh. Ram Phal, Head Clerk, DDA. The
appellant met with the accident on 10/7/1992. The age of the appellant
FAO 1/2001 Page 11 of 13
at the time of the accident was 39 years and the 40% disability of the
appellant was duly proved on record as per the deposition of PW8 Dr.
V.K. Sharma of Safdurjang Hospital. According to the said witness PW
6, Sh. Ram Phal, the appellant drew his last salary in Nov 1996 and
since December 1996 he has not been getting anything from his
employer. But nothing was brought on record to prove as to for which
period the appellant was on leave and as to whether he was being paid
any salary for the said period or not. Therefore, after considering all
these factors, the compensation towards loss of earnings has rightly
not been awarded by the tribunal.
16. In view of the foregoing, Rs. 30,000/- is awarded towards medical
expenses, Rs. 5,000/- towards future medical expenses, Rs. 5,000/-
towards conveyance expenses, Rs. 5,000/- towards special diet, Rs.
1,00,000/- towards mental pain & suffering, loss of amenities & loss of
expectation of life; Rs. 1,86,624/- towards permanent disability & Rs.
5,000/- towards medical attendants’ fee.
17. In view of the above discussion, the total compensation is
enhanced to Rs. 3,36,624/- from Rs. 1,25,000/- along with interest @
7.5% per annum on the enhanced compensation from the date of
FAO 1/2001 Page 12 of 13
institution of the petition till realisation of the award and the same
should be paid to the appellant by the respondent insurance company.
18. With the above direction, the present appeal is disposed of.
6.4.2009 KAILASH GAMBHIR, J.
FAO 1/2001 Page 13 of 13