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Surinder Kumar Kansal vs Nadar Khan & Ors. on 6 April, 2009

Delhi High Court
Surinder Kumar Kansal vs Nadar Khan & Ors. on 6 April, 2009
Author: Kailash Gambhir
*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.421/2000

                       Judgment reserved on: 19.03.2008
%                      Judgment delivered on: 6.4.2009


Surinder Kumar Kansal                             ......... Appellant
                       Through: Mr. Ashok Popli, Adv.

             versus


Nadar Khan & Ors.                            ..... Respondents
                       Through: Ms. Manjusha Wadhwa, Adv.
                                Mr. Pradeep Gaur, 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 29.5.2000 for

enhancement of compensation. The learned Tribunal awarded a total

FAO No. 421/2000 Page 1 of 11
amount of Rs.2,70,000/- with an interest @ 12% PA for the injuries

caused to the claimant appellant in the motor accident.

2. The brief conspectus of facts is as under:

3. On 19.12.93 the appellant was going on his two wheeler scooter

bearing registration no. DL 4SJ 8547 with one Sh. Sham Singh on the

pillion. When he reached at round about of Taj Hotel, a car bearing

registration no. DL-17-1347 came at a fast speed, which was being

driven by Respondent no.1 in a rash and negligent manner on the

wrong side and hit the scooter of the appellant with a force. As a

result, appellant fell down and suffered grievous injuries leading to

amputation of left leg below knee.

4. A claim petition was filed on 30.5.94 and an award was made on

29.5.2000. Aggrieved with the said award enhancement is claimed by

way of the present appeal.

5. Sh. Ashok Popli 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 the tribunal erred in

awarding Rs.30,000/- towards pain and suffering which is too low in

FAO No. 421/2000 Page 2 of 11
view of the fact that the appellant remained under active treatment

from 19.12.94 to 28.9.95 and even thereafter. The counsel also

showed his discontent to the amount of compensation awarded by the

Tribunal towards special diet. It is also stated that no compensation

has been granted towards conveyance though the appellant attended

the OPD during active treatment. It is stated that no compensation

towards future treatment has been awarded by the Tribunal, whereas

appellant has to take regular treatment due to use of artificial limb.

Further, the counsel stated that Ld. Tribunal erred in not awarding any

compensation for repair/replacement of the artificial limb. The

counsel further submitted during the course of arguments that

appellant filed bills of Rs.6000/- incurred on account of repair of the

artificial limb, which Ld. Tribunal has not considered. The counsel

further submitted that Ld. Tribunal erred in not awarding any

compensation for further operation as it has now been advised by the

doctor that there is non-union of lower end of femur for which

operation is required and the appellant has to incur Rs.40,000/- on

operation and medicines. It is also stated that Ld. Tribunal has erred in

observing that the appellant being Engineer in DVB will not suffer any

loss on account of injuries as it does not affect his employability while

in service till the age of 60 years. Further, the counsel stated that a

FAO No. 421/2000 Page 3 of 11
sum of Rs.1,00,000/- ought to have been awarded for the injury,

disability, discomforts, inconvenience , loss of longevity of life and for

reduction in quality of life by use of artificial limb. The counsel further

stated that Ld. Tribunal has erred in directing that out of the total

award 90% of the award be deposited in a nationalized bank for a

period of 15 years. Further the counsel pleaded that the counsel erred

in awarding an interest of 12% pa instead of 18% pa.

6. Per contra, Ms. Manjusha Wadhwa and Sh. Pradeep Gaur counsel

for the respondent insurance company contended that the tribunal

passed a just and fair award on the basis of the documents proved by

the appellant and therefore, no interference is required in the same.

7. I have heard the 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

FAO No. 421/2000 Page 4 of 11
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 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 has awarded Rs. 80,000/- for

expenses towards medicines; Rs. 10,000/- for special diet; Rs. 30,000/-

for mental pain and sufferings; Rs. 1,00,000/- on account of permanent

FAO No. 421/2000 Page 5 of 11
disability to the extent of 40% and Rs. 53,600/- on account of loss of

earnings.

10. On perusal of the award, it is manifest that the appellant

remained admitted in AIIMS from 19/12/1993 till 26/1/1994 as per the

discharge slip PW3/1. But still he continued getting treatment as an out

patient, which is proved vide OPD cards Ex. Pw3/2 to PW3/4. PW3/5,

discharge slip proved that he also took treatment at Ganga Ram

hospital. Ex. PW3/6 and Pw3/7 proved that he also took treatment at

Orthonova Hospital. The appellant further deposed as PW3 that for

consultation regarding artificial limb for his amputated leg he sought

consultation from Dr. Sethi of Jaipur and same is proved vide Ex. PW3/8

and Pw3/9. Further Pw3/11 to PW3/25 are the tickets vide which it is

proved that he visited Jaipur for consultation. He had placed on record

various bills Ex. PW3/27 to 30 and Pw3/32 to 56, medical bills, to prove

medical expenses and expenses on purchase of artificial limb. As

regards medical expenses, the tribunal took cognizance of the fact that

the appellant suffered fracture on the thigh and left hand and later on

23/12/1994 his leg was amputated and awarded Rs. 80,000/- even

though the appellant could not prove that he had incurred Rs. 80,000/-

towards medical expenses. The tribunal has already been generous

FAO No. 421/2000 Page 6 of 11
and I do not find any infirmity in the order in this regard, therefore, the

same is not interfered with.

11. As regards conveyance expenses, the appellant deposed as PW3

that for consultation regarding artificial limb for his amputated leg he

sought consultation from Dr. Sethi of Jaipur and same is proved vide

Ex. PW3/8 and Pw3/9. Further Pw3/11 to PW3/25 are the tickets vide

which it was proved that he visited Jaipur for consultation. As

mentioned above, the tribunal awarded the said expenses under the

head of medical expenses. Thus the same has already been awarded

to the appellant by the tribunal. I do not find any infirmity in the order

in this regard and the same is not interfered with.

12. 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 notice of the fact that

since the appellant sustained serious injuries and his leg was also

amputated and thus he must have also consumed protein-rich/special

diet for his early recovery and awarded Rs. 10,000/- for special diet

expenses. I do not find any infirmity in the order in this regard and the

same is not interfered with.

FAO No. 421/2000 Page 7 of 11

13. As regards mental pain & suffering, the tribunal has awarded Rs.

30,000/- to the appellant. The appellant sustained fracture of thigh and

left hand and later the leg was amputated. In such circumstance, I feel

that the compensation towards mental pain & suffering should be

enhanced to Rs. 50,000/-.

14. As regards the compensation towards permanent disability, the

tribunal awarded Rs. 1,00,000/- to the appellant. Considering the facts

of the case and also considering that the appellant could not prove

that he is facing any problem in the job as a DESU Inspector, I feel that

the tribunal has already been quite generous. Therefore, I do not feel

that any enhancement is required in this regard.

15. 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. 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. 50,000/-.

16. As regards the issue of interest that the rate of interest of 12%

p.a. awarded by the tribunal is on the lower side and the same should

FAO No. 421/2000 Page 8 of 11
be enhanced to 15% p.a., I feel that the rate of interest awarded by the

tribunal is just and un/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 @ 12% pa by the tribunal and the same is not interfered with.

17. As regards the contention that the tribunal erred in not awarding

compensation towards future medical expenses and expenses towards

repair of artificial limb, nothing has been brought on record to prove

the same. But considering that the appellant is completely dependant

on the said artificial limb and said artificial limb being a machine can

require repairmen, I feel that awarding a sum of Rs. 25,000/- under the

said head would be just and fair.

FAO No. 421/2000 Page 9 of 11

18. As regards the issue that the tribunal deposited 90% of the award

amount in the nationalized bank, I feel that the same does not suffer

from infirmity. In Lilaben Udesing Gohel vs. Oriental Insurance

Co. Ltd. – 1996 ACJ 673 (SC) the Hon’ble Apex Court laid down

broad guidelines which the Claims Tribunal should follow while

disposing of the claim applications arising under the Motor Vehicles

Act, 1939 to scotch complaints of misapplication of compensation

money and that as per those guidelines the compensation money

should be invested in a nationalised bank as a fixed deposit and the

interest thereon should be paid directly to the claimant or his guardian,

as the case may be. Therein, the Apex Court also held that in personal

injury cases if treatment is necessary the Claims Tribunal on being

satisfied about the same may after recording reasons for such

satisfaction direct the Insurance Company to pay such amount to the

claimant as is necessary for incurring the expenses for such treatment.

This permission should be granted strictly after verifying the necessity

of medical expenses. Therefore, the appellant can always seek

withdrawal of the said deposited amount upon proof of exigency.

Therefore, no interference is made in the award on this count.

FAO No. 421/2000 Page 10 of 11

19. In view of the above discussion, Rs. 80,000/- is awarded for

expenses towards medicines; Rs. 10,000/- for special diet; Rs. 50,000/-

for mental pain and sufferings; Rs. 50,000/- towards loss of amenities

of life; Rs. 1,00,000/- on account of permanent disability to the extent

of 40%; Rs. 25,000/- towards future medical expenses and Rs. 53,600/-

on account of loss of earnings.

20. In view of the above discussion, the total compensation is

enhanced to Rs. 3,68,600/- from Rs. 2,70,000/- along with interest @

7.5% per annum, on the enhanced compensation from the date of

institution of the present petition till realisation of the award and the

same should be paid to the appellant by the respondent no.3.

21. With the above directions, the present appeal is disposed of.

6.4.2009                                    KAILASH GAMBHIR, J




FAO No. 421/2000                                       Page 11 of 11
 

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