IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No. 429/1999
Judgment reserved on: 7th March, 2008.
Judgment delivered on: 13.4. 2009.
Sh. Riazuddin ..... Appellant.
Through: Sh.R.D. Shahalia, Advocate.
Versus
DTC & Anr. ..... Respondents
Through: Mr. J. N. Aggarwal, Adv. for R-1.
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 30.3.99
for enhancement of compensation. The learned Tribunal awarded
FAO No. 429/1999 Page 1 of 9
a total amount of Rs.1,00,000/- with an interest @ 12% PA for theinjuries caused to the claimant appellant in the motor accident.
2. The brief conspectus of facts is as under:
On 11.3.94, at about 11:55, the appellant was going on his two
wheeler scooter on Rama Road to his place of work at C-64,
Mayapuri, New Delhi. When the appellant reached near 8/42,
Industrial Area, Kirti Nagar, a DTC bus bearing registration no. DL-
1P-9074 came from behind at a fast speed in a rash and
negligent manner and overtook the appellant from left side and
took a right turn without giving any signal and in the process, hit
the scooter of the appellant . As a result appellant fell down and
the rear wheel of the bus ran over the left foot of the appellant
resulting into crush injuries and the left toe of the appellant was
amputated.
3. A claim petition was filed on 28.5.94 and an award was passed on
30.3.99. Aggrieved with the said award enhancement is claimed
by way of the present appeal.
4. Sh.R.D. Shahalia, 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
FAO No. 429/1999 Page 2 of 9
the said judgment of Learned Tribunal firstly, on the ground that
the tribunal erred in assessing the loss of future income of the
claimant appellant as he suffered less than 40% permanent
disability. The Counsel also expressed his discontent on the
amount of compensation granted towards treatment, medicines,
special diet & conveyance. Ld. Counsel for the appellant has
further contended that tribunal has not awarded any amount for
loss of happiness and loss of amenities in a happy married life as
well as for cost of litigation & shortening of life expectancy. The
Counsel also expressed his discontent on the amount of
compensation granted towards pain and suffering. Further the
counsel pleaded that the counsel erred in awarding an interest of
12% pa.
5. Mr. J. N. Aggarwal, counsel for the respondents refuted the
contentions of counsel for the appellant and submitted that the
award passed by the learned tribunal is just and fair and does not
require interference by this court.
6. I have heard the counsel for the parties and perused the award.
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
FAO No. 429/1999 Page 3 of 9
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
FAO No. 429/1999 Page 4 of 9
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.”
8. In the instant case the tribunal awarded Rs. 37,770/- for expenses
towards treatment; Rs.3000/- for special diet; Rs.3000/- for
conveyance expenses; Rs.8,590/- for loss of wages & Rs.45,000/-
for permanent disability and pain and sufferings.
9. On perusal of the award, it is manifest that the appellant had
placed on record various bills Ex. P2; P11; P6 to 10; P12 to 31;
P36; P37; P41; P47 and P52 amounting to Rs. 37,770/-. It is no
more res integra that in order to claim compensation under any
head of pecuniary damages, the claimant has to prove the
amount spent by him under the said head and in the absence of
any proof compensation cannot be claimed. Therefore, I do not
find any infirmity in the order in this regard and the same is not
interfered with.
10. As regards the issue that the tribunal awarded only Rs.
3,000/- as conveyance expenses & only Rs. 3,000/- as special diet
expenses, I feel that the tribunal has already been generous and
FAO No. 429/1999 Page 5 of 9
therefore, no interference is required in the award in this regard
since nothing was brought on record by the appellant to prove
the expenses incurred by him towards conveyance and special
diet expenses. Therefore, the award is not modified in this
regard.
11. 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 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/-.
12. As regards loss of earnings, no proof regarding income of
the appellant was brought on record. The appellant deposed that
at the time when he met with the accident he was working with
Goldy Industries, C-64, Mayapuri and was earning Rs. 2,700/-pm.
Since nothing has come on record by way of documentary
evidence as regards the proof of the income of the appellant and
FAO No. 429/1999 Page 6 of 9
thus, the tribunal assessed the income of the appellant by taking
aid of the Minimum Wages Act to assess the income as that of a
unskilled workman i.e. Rs. 1,382/-. The tribunal considering the
evidence on record, Ex. PW2 to P4, assessed the loss of income of
the appellant for a period of six months and awarded Rs.8,590/-
as compensation for loss of earning. In the absence of any proof
having been brought on record by the appellant as regards the
fact that he could not work for more than six months,
compensation cannot be awarded for more than six months to
the appellant. Therefore, the award is not interfered with in this
regard and compensation towards loss of income is taken at Rs.
8,590/-.
13. As regards mental pain & suffering and permanent
disability, the tribunal has awarded Rs. 45,000/- to the appellant.
The left leg of the appellant was operated upon, skin grafting was
done and the toe of his left foot was amputated. The tribunal
ought to have assessed them separately, therefore, on the basis
of Ex P1 it is manifest that the appellant suffered disability to the
extent of less than 40%. Further, The income of the appellant as
discussed above is assessed at Rs. 1382/- pm. The appellant at
FAO No. 429/1999 Page 7 of 9
the time of the accident was of 26 years of age and thus, the
multiplier of 16 is applicable in the facts of the present case.
Thus, the disability compensation would come to Rs. 1,06,137/-
(1382x12x16x40/100). Further, considering that the appellant’s
left leg was operated upon, skin grafting was done and also his
toe of the left foot was amputated, I feel that Rs. 20,000/-
towards mental pain and suffering would be just and fair.
14. 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
FAO No. 429/1999 Page 8 of 9
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.
15. In view of the foregoing, Rs. 37,770/- is awarded for
expenses towards treatment; Rs.3000/- for special diet; Rs.3000/-
for conveyance expenses; Rs.8,590/- for loss of wages; Rs.
25,000/- for loss of amenities and enjoyment of life &
Rs.1,06,137/- for permanent disability and Rs. 20,000/- for pain
and sufferings.
16. In view of the above discussion, the total compensation is
enhanced to Rs. 2,03,497/- from Rs. 1,00,000/- along with
interest @ 7.5% per annum from the date of institution of the
petition till realisation of the award and the same should be paid
to the appellant by the respondent no. 1.
17. With the above directions, the present appeal is disposed
of.
13.4.2009 KAILASH GAMBHIR J.
FAO No. 429/1999 Page 9 of 9