* IN THE HIGH COURT OF DELHI AT NEW DELHI
• FAO No.297/01
Judgment reserved on: 21.02.08
% Judgment delivered on: 6.4.2009
VIJAY KUMAR ...... Appellants
Through: Mr. Santosh Chauriha, Adv.
versus
DEVINDER SINGH ..... Respondent
Through: None.
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 of compensation
passed by the Learned Motor Accident Claim Tribunal on 01.02.2001.
The learned Tribunal awarded a total amount of Rs. 33,923/- with an
interest @ 10% PA for the injuries caused to the claimant appellant in
the motor accident.
FAO No. 297/01 Pages 1 of 8
The brief conspectus of facts is as under:
2. On 23.1.95 at about 9.30 a.m an accident took place due to rash
and negligent driving on the part of the bus driver who was driving bus
no. UGP 4316 at very high speed, negligently and rashly while going
from Haldwani side to Muradabad. The accident took place at Gram
Taharpur. The bus was hit against a tree as a result of which the
petitioner and other passengers received serious injuries.
3. A claim petition was filed on 21.11.2000 and an award was made
on 1.2.2001. Aggrieved with the said award enhancement is claimed
by way of the present appeal.
4. Appellant claimant claims enhancement through this appeal. The
counsel 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 a sum of Rs.6,000/- towards
earning loss for two months and which should have been Rs.90,000/-.
The Counsel also expressed his discontent on the amount of
compensation granted towards medical expenses. He claimed an
amount of Rs.40,000/- towards the medical treatment, conveyance
and special diet. The claimant appellant has produced some medical
FAO No. 297/01 Pages 2 of 8
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 in leg, the learned Tribunal must should consider
the same, while awarding that amount. The Tribunal awarded a sum of
Rs.20,000/- towards mental pain & suffering but the counsel shows
his discontent to that as well and averred that it should have been
Rs.50,000/-. Further the counsel pleaded that the tribunal erred in
awarding an interest of 10% pa instead of 15% pa.
5. I have heard the counsel for the appellant and perused the
award.
6. 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 injury
accidents 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,
FAO No. 297/01 Pages 3 of 8
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.”
7. In the instant case the tribunal awarded Rs. 3923/- for expenses
towards medicines; Rs.2000/- for special diet; Rs.2000/- for
conveyance expenses; Rs.20,000/- on account of mental pain and
sufferings for grevious injuries, Rs.6,000/- towards loss of income for
two months at the rate of Rs. 3,000/- per month.
FAO No. 297/01 Pages 4 of 8
8. On perusal of the award, it is manifest that the appellant placed
on record various medical bills, Ex.P16 to Ex. P37 issued by various
medical stores for a sum of Rs. 3,923/-. Due to the accident, the
petitioner was hospitalised for 25 days as per the MLC, Ex. A, and a
fracture of 2 months was done. No doubt the appellant might have
incurred considerable amount towards the purchase of medicines but
in the absence of any proof the tribunal rightly granted Rs 3,923/-
towards medical expenses based on the proved medical bills.
9. As regards conveyance expenses, nothing has been brought on
record to prove the same. The appellant suffered fracture in his leg.
The tribunal after taking notice of this fact and in the absence of any
cogent evidence awarded Rs.2,000/- for conveyance expenses. No
interferance can be made to enhance the conveyance expenses unless
specifically proved by the appellant.
10. 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 in leg thus he must have
also consumed protein-rich/special diet for his early recovery and
FAO No. 297/01 Pages 5 of 8
awarded Rs.2000/- for special diet expenses. No interference is
warranted to increase the special diet expenses.
11. As regards mental pain & suffering, the tribunal has not awarded
any amount. The appellant remained in hospital for about one month
and sustained fracture in his leg. In such circumstance, I feel that the
compensation towards mental pain & suffering should have been
granted at Rs.10,000/-.
12. The appellant has not filed any disability certificate before the
Tribunal. But considering that the appellant suffered fracture, the
Tribunal has awarded Rs.20,000/- towards mental pain and sufferings
for grevious injury disability, which in my view does not require any
interference.
13. As regards loss of amenities, 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, 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.15,000/-.
FAO No. 297/01 Pages 6 of 8
14. As regards loss of earnings, no proof regarding income of the
appellant was brought on record. The tribunal assessed notional
income of the appellant at Rs. 3000/- pm and awarded Rs.6000/-
towards loss of income for two months, the period during which the
appellant could not work. Since the petitioner was hospitalised for 25
days as per the MLC, Ex. A, Therefore, loss of income for one month as
assessed by the tribunal at Rs.6,000/- is not interfered with.
15. As regards the issue of interest that the rate of interest of 10%
p.a. awarded by the tribunal is on the lower side and the same should
be enhanced to 15% 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
FAO No. 297/01 Pages 7 of 8
not find any infirmity in the award regarding award of interest @
10%pa by the tribunal and the same is not interfered with.
16. Therefore, as discussed above, Rs. 3,923/- is awarded for
expenses towards medicines; Rs.20,000/- on account of grevious
injury disability, Rs.6,000/- towards loss of income; Rs. 15,000/- for
loss of amenities Rs. 10,000/- for pain and sufferings, Rs. 2000/- on
account of special diet and conveyance.
17. In view of the above discussion, the total compensation is
enhanced to Rs. 56,923/- from Rs.33,923/- along with interest @ 7.5%
per annum from the date of institution of the present petition in this
Court till realisation on the enhanced compensation and the same
should be paid to the appellant by the respondents no 1 to 3, whose
liability is joint and several.
18. With the above direction, the present appeal is disposed of.
6.4.2009 KAILASH GAMBHIR, J. FAO No. 297/01 Pages 8 of 8