* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 37/2003
Judgment reserved on: 11.02.2008
% Judgment delivered on: 13.4.2009
SHRI BHUSHAN KUMAR ...... Appellant
Through: Mr. O. P. Mannie, Advocate.
versus
DTC AND ORS. .... Respondents
Through: Mr. Kanwal Chaudhary,
Advocate.
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 dated 3 rd
September 2002 of the Motor Accident Claims Tribunal whereby
the Tribunal awarded a sum of Rs. 33,500/- with a simple interest
@ 12% pa.
FAO No. 37/03 Page 1 of 10
2. The brief conspectus of the facts is as follows:
On 8th June 1985, at around 1:45 P.M., the injured appellant Mr.
Bhushan Kumar, aged about 35 years was travelling on the road
leading to the Ring Road from Vinay Marg on a two wheeler
scooter as a pillion rider when suddenly a DTC bus bearing
Registration No. DEP 3888 being driven on the wrong side of the
road hit the scooter resulting into causing serious injuries to the
appellant who was on the pillion seat. He received injuries in his
chest, left hand and arm, face and other body parts including his
left leg which was completely fractured. The injured was removed
to the Safdarjang Hospital.
3. A claim petition was filed on 7th December 1985 and an
award was passed on 3rd September 2002. Aggrieved with the
said award the appellant claimed enhancement by way of the
present appeal.
4. Sh. O.P. Mannie 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 said judgment of Learned Tribunal firstly, on the ground that
FAO No. 37/03 Page 2 of 10
the tribunal erred in assessing the income of the claimant
appellant at Rs. 750/- PM without considering his earnings from
Burma Trunk House where from he was drawing a salary of Rs.
20/-per day. Based on this, it is further contended that the loss of
income should also be enhanced, accordingly. The Counsel also
expressed his discontent on the amount of compensation granted
towards medical expenses. He claimed an amount of Rs. 25,000/-
towards the medical treatment and expenses. Enhancement is
also claimed on the ground that a meager amount of just Rs.
1,500/- has been awarded towards conveyance instead of the
claim of Rs. 12,000/- . Amount towards the special diet is also
sought to be enhanced from Rs. 4,000/- to 35,000/-. The Tribunal
awarded a sum of Rs. 15,000/- towards mental pain & suffering
but the counsel showed his discontent to that as well and averred
that it should have been Rs. 50,000/-. Further the counsel
pleaded that the counsel erred in awarding an interest of @9% pa
instead of 12% pa.
5. Mr. Kanwal Chaudhry counsel for the respondent/insurance
company refuted the contentions of counsel for the appellant and
stated that the impugned award is just and fair and requires no
FAO No. 37/03 Page 3 of 10
interference as far as enhancement is concerned. He urged that
the tribunal awarded compensation without there being any
documentary or cogent evidence on record under the heads of
conveyance expenses, medical expenses etc.
6. I have heard counsel for the appellant 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
injury and fatal accidents 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 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 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:
FAO No. 37/03 Page 4 of 10
“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.”
8. In the instant case the tribunal awarded Rs. 5000/- for
expenses towards medicines; Rs. 4000/- for special diet; Rs.
1500/- for conveyance expenses; Rs. 15,000 for mental pain and
sufferings and Rs. 3000/- on account of loss of earnings.
9. On perusal of the award, it is manifest that the appellant is
the government employee and he took most of the treatment
from a government hospital where he was not charged and the
FAO No. 37/03 Page 5 of 10
appellant was reimbursed the amount he spent under treatment
in the said hospital. The appellant placed on record various bills
and medical vouchers of private doctors and hospitals as
Ex.PW3/21 to 29. As regards medical expenses, the tribunal took
cognizance of the fact that the appellant sustained injuries on
various parts of the body and awarded Rs. 5000/- even though
the appellant could not prove that he incurred Rs. 5000/- towards
medical expenses. I do not find any infirmity in the order in this
regard and the same is not interfered with.
10. As regards conveyance expenses, nothing has been proved
on record. The appellant suffered injuries on various parts of his
body and in his statement he made the averment that he had
spent rupees 12,000 on conveyance of three Wheeler Scooter as
he had to visit the hospital at least 15 times for his treatment.
The tribunal after taking note of this fact and in the absence of
any cogent evidence awarded Rs. 1500/- 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 took
FAO No. 37/03 Page 6 of 10
note of the fact that since the appellant sustained fracture thus
he must have also consumed protein-rich/special diet for his early
recovery and awarded Rs. 4000/- for special diet expenses. I do
not find any infirmity in the order in this regard and the same is
not interfered with.
12. As regards mental pain & suffering, the tribunal awarded
Rs. 15,000/- to the appellant. The appellant sustained major and
serious injuries in his chest, left hand and the arm, face and other
parts of the body and the bone of his left leg were completely
fractured below the knee. On perusal of the award it is manifest
that on the date of filing of the petition, the leg of the appellant
was in plaster and he could not walk without the help of crutches.
The appellant was examined as PW3 and he deposed that that he
finds it difficult to board the bus. In such circumstance, I feel that
the compensation towards mental pain & sufferings should be
enhanced to Rs. 25,000/-.
13. As regards loss of amenities, Compensation for loss of
amenities of life compensates victim for the limitation, 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,
FAO No. 37/03 Page 7 of 10
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. I feel
that the tribunal erred in not awarding the same and in the
circumstances of the case same are awarded at Rs.10,000/-.
14. As regards loss of earnings, proof regarding income of the
appellant was brought on record as exhibit PW 3/50. The
appellant was employed with Indian Air Force at the monthly
salary of rupees 750 per month. The appellant also deposed that
besides the said work he was earning Rs 20 per day at Burma
Trunk House. It is no more res integra that mere bald assertions
regarding the income of the injured are of no help to the
claimants in the absence of any reliable evidence being brought
on record. Since the appellant could not prove his income of
rupees 20 per day at Burma trunk house, thus the tribunal only
considered his income as an employee of Indian air force. It has
been duly proved on record that the Appellant remained on leave
for a period of about 196 days. Exhibit PW 3/51 to 52 a
certificate to the effect of loss of wages and according to the said
certificate the tribunal worked out the compensation towards loss
of earnings as Rs 7650 which was rounded off to Rs 8000. I do
FAO No. 37/03 Page 8 of 10
not find any infirmity in the same & therefore, it is not interfered
with.
15. As regards the issue of interest that the rate of interest of
9% p.a. awarded by the tribunal is on the lower side and the
same should be enhanced to 12% p.a., 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 facts and
circumstances of the case, I do not find any infirmity in the award
regarding award of interest @ 9% pa by the tribunal and the
same is not/ interfered with.
16. Therefore, Rs. 5,000/- is awarded towards medical
expenses; Rs.1,500/- for conveyance expenses; Rs.4,000/- for
FAO No. 37/03 Page 9 of 10
special diet; Rs.25,000/- for mental pain & sufferings; Rs.10,000/-
for loss of amenities & Rs.8,000/- towards loss of earnings.
17. In view of the above discussion, the total compensation is
enhanced to Rs. 53,500/- from Rs. 33,500/- 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/insurance company.
18. With the above direction, the present appeal is disposed of.
13.4.2009 KAILASH GAMBHIR, J
FAO No. 37/03 Page 10 of 10