IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO. No542/2001
Judgment reserved on: 5.2.2008
Judgment delivered on: 13.4.2009.
Shri Jai Prakash Gupta ..... Appellant.
Through: Mr.R.D.Shahlia, Adv
versus
Sh. Chandar Bahadur & Ors. ..... Respondents
Through: Mr. Kanwal Chaudhary, 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 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 7.7.2001
for enhancement of compensation. The learned Tribunal awarded a
FAO No. 542/2001 Page 1 of 8
total amount of Rs.40,000/- 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 21.2.85 at about 6.45 P.M. the appellant along with his
friends was going for a walk on Jhandu Marg, all of a sudden a car
bearing registration no. DIA-4233 came from behind at a very fast
speed without blowing any horn and hit the appellant, as a result of
which the appellant was thrown and dragged for some distance and
he sustained grievous injuries including fracture of right leg
(fractures of Fabula and Tibia Bones) and grievous injuries on the
head as well as on the forehead.
4. A claim petition was filed on 20.8.85 and an award was
passed on 7.7.2001. Aggrieved with the said award enhancement is
claimed by way of the present appeal.
5. Sh.R.D. Shahlia, 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 assessing the income of the claimant
appellant at Rs. 1500/- PM and the same should be enhanced to Rs.
FAO No. 542/2001 Page 2 of 8
3,000/- p.m. 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. 20,000/-
towards the medical treatment and expenses. The claimant
appellant is not able to produce medical bills to claim the stated
amount, but he contended that looking at the facts and
circumstance of the case and the fact that the claimant was treated
for fracture of right tibia and fibula at Safdarjung Hospital, Delhi,
the learned Tribunal must have considered awarding that amount.
Enhancement is also claimed on the ground that a sum of just Rs.
1000/-is awarded towards conveyance instead of the claim of Rs.
10,000/- . Amount of Rs. 10,000/- towards the special diet is also
sought, which has not been awarded by the tribunal. The Tribunal
awarded a sum of Rs. 30,000/- towards mental pain & suffering
but the counsel shows his discontent to that as well and averred
that it should have been Rs. 40,000/-.
6. Per contra Shri Kanwal Chaudhary counsel for the appellant
urged that the award passed by the Tribunal is just and fair and
does not require interference by this Court.
FAO No. 542/2001 Page 3 of 8
7. I have heard 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 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
FAO No. 542/2001 Page 4 of 8
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.3,000/- for
expenses towards medicines, Rs. 1000/-for conveyance expenses;;
Rs.30,000 for mental pain and sufferings; Rs. 6,000/- towards loss
of earnings.
10. On perusal of the award, it is manifest that the appellant did
not place on record any medical bill to prove the expenses incurred
towars medical treatment. To consider grant of medical expenses,
the tribunal took cognizance of the fact that the appellant sustained
serious injuries in his spine and his right femur and awarded Rs.
3,000/- even though the appellant failed to prove that he had
incurred any expenses towards medical expenses. I do not find any
infirmity in the order in this regard and the same is not interfered
with.
FAO No. 542/2001 Page 5 of 8
11. As regards conveyance expenses, nothing has been brought
on record. The appellant suffered 5% injuries. The tribunal after
taking notice of this fact and in the absence of any cogent evidence
awarded Rs.1000/- for conveyance expenses. I do not find any
infirmity in the order in this regard and the same is not interfered
with.
12. As regards expenses towards special diet I feel that the
Tribunal erred in not awarding the same and thus Rs. 1,000/- is
awarded in this regard.
13. As regards mental pain & suffering, the tribunal has awarded
Rs. 30,000/- to the appellant. The appellant sustained fracture on
right leg and injuries on his forehead. In such circumstance, I feel
that the compensation towards mental pain & suffering does not
require any interference.
14. As regards the compensation towards permanent disability,
the income of the appellant was averred to be at Rs.1500/- pm. As
per the disability certificate the appellant suffered 5% disability.
Also considering that the appellant at the time of the accident was
of 25 years of age and thus multiplier of 16 shall be applicable
considering that the accident took place in the year 1985. Thus, the
FAO No. 542/2001 Page 6 of 8
compensation towards 5% disability comes to Rs. 14,400/- (1500 x
12 x 16 x 5/100).
15. As regards loss of amenities, which results from the
defendant’s negligence, on 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. I feel that the tribunal erred in not
awarding the same and in the circumstances of the case same is
allowed to the extent of Rs. 10,000/-.
16. As regards loss of earnings, the tribunal assessed notional
income of the appellant at Rs. 1500/- pm and awarded Rs. 6000/-
towards loss of income for four months, the period during which the
appellant could not work. I consider that no interference is called
for.
17. In view of the foregoing, Rs. 6,000/- is awarded towards loss of
earning for 4 months, Rs. 10,000/- is awarded towards loss of
amenities; Rs. 14,400/-; towards permanent disability to the extent
of 5%; Rs.30,000/- towards mental pain and sufferings; Rs. 1,000/-
towards conveyance expenses; Rs. 1,000/- towards special diet and
Rs. 3,000/- towards medical expenses.
FAO No. 542/2001 Page 7 of 8
18. In view of the above discussion, the total compensation is
enhanced to Rs. 65,400/- from Rs. 40,000/- 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 insurance company.
19. With the above direction, the present appeal is disposed of.
13.4.2009 KAILASH GAMBHIR, J.
FAO No. 542/2001 Page 8 of 8