IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : COMPENSATION MATTER. FAO No. 356/2002. Judgment reserved on

Transcription

1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : COMPENSATION MATTER FAO No. 356/2002 Judgment reserved on Judgment delivered on: Shri Ranjeev Kumar Kocchar Through: Mr.Y.R. Sharma, Adv.... Appellant. versus Sepoy R.B.Pandey and Ors. Through: Nemo... Respondents KAILASH GAMBHIR, J. The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 8th April 2002 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs 1,66,400/- with an 9% PA for the injuries caused to the claimant appellant in the motor accident. The brief conspectus of facts is as under: On 2nd May 1995, at about 7 P.M. the injured appellant Mr Ranjeev Kumar, aged about 33 years, was going to his residence from N 84, Gulmohar Park on his two wheeler scooter bearing registration No. DL 2S B On reaching Rao Tula Marg, gate No. 1, Central Base Post Office, a truck bearing No 89D 81544N came towards the claimant appellant at a very fast speed and driven in a rash and negligent manner without blowing any horn or any indication. The claimant appellant could not avoid a collision with the said offending truck and had a violent fall on the road along with the scooter causing grievous injuries to his person and substantial damage to the scooter as well. The petitioner was taken to Safdarjung Hospital in a PCR van and treated there for multiple fractures. He sustained fracture in his left leg below knee, fracture of both knees. Deep wound in the left leg below knee

2 and right shoulder and lacerated wound at lower limb. Four teeth of lower jaw and three teeth of upper jaw also got uprooted. A claim petition was filed on 22nd August 1995 and an award was made on 8th April Aggrieved with the said award enhancement is claimed by way of the present appeal. Sh. Y.R. Sharma counsel for the appellant claimant claims enhancement through this appeal. It is urged by the learned counsel that the Tribunal has erred in awarding a sum of Rs. 56,400/- only towards medicines and treatment expenses. Whereas the appellant has spent about Rs. 1,00,000/- on treatment and medicines. It is further stated by the learned counsel for the appellant that, the Tribunal erred in awarding Rs 10,000/- only towards the conveyance charges. He stated that the appellant was advised not to drive his scooter for atleast 1 year which made him totally reliant on the commercial vehicles for his conveyance. Enhancement is also claimed under the head of special diet by the counsel saying that the Tribunal erred in awarding Rs. 10,000/- only whereas the appellant spent about Rs. 1,00,000/- on the same. Discontent is also shown on the award of compensation towards loss of income. It is stated that the Tribunal awarded a sum of Rs. 28,000/- only after computing a loss of four months income, whereas the appellant had to close down his flourishing business, and keeping this in mind a compensation of Rs 5,00,000/- is sought by the appellant. Enhancement of sum from 10,000/- to a sum of 1,00,000/- is also claimed towards disfigurement of lower lip. For mental and physical pain, enhancement, from 50,000/- to 1,00,000/- is sought along with a claim of Rs, 1,00,000/- towards 20% permanent disability which the counsel stated that the Tribunal erred in rejecting. Further the counsel pleaded that the counsel erred in awarding an interest of 9% pa instead of 15% pa. I have heard the counsel for the appellant and have perused the award. 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 and fatal accidents the general principle is that such sum of compensation should be awarded which puts the injured or the claimants in case of the fatal accidents matter in the same position as he would have been had accident had 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 nonpecuniary 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

3 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.? In the instant case the tribunal has awarded Rs. 56,400/- for expenses towards medicines; Rs. 10,000/- for special diet; Rs. 10,000/- for conveyance expenses; Rs. 50,000/- for mental pain and sufferings; Rs. 2,000 for vehicle repair; Rs. 10,000/- for disfigurement of lower lip and Rs. 28,000/- on account of loss of earnings. On perusal of the award, it becomes manifest that the appellant had placed on record various medical bills Ex. PW2/C, which comes to a total of Rs. 24,646/-. The appellant had also placed on record medical bills for amount spent on x-ray, Ex. PW4/17, PW4/18, PW4/40 and PW4/41, a total of which comes to Rs. 800/-. Also, bills for amount spent on physiotherapy amounting to Rs. 1440/- as Ex. PW4/39, Ex. PW4/43 and Ex. PW4/47, another receipt for taking treatment from Dr. Sanjay Sareen Mathur is Ex. PW4/2 amounting to Rs. 24,000/-. Various cash memos Ex. PW4/4 to Ex. PW4/7, Ex. PW4/9, Ex. PW4/12, Ex. PW4/16, Ex. PW4/24, Ex. PW4/25, Ex. PW4/28, Ex. PW4/33 to Ex. PW4/38 and Ex. PW4/41 to Ex. PW4/46 for a sum of Rs. 5535/- are also on record. As regards medical expenses, the tribunal took cognizance of the above bills and awarded Rs. 56,400/- as proved by the appellant towards medical expenses. I do not find any infirmity in the order in this regard and the same is not interfered with. It is no more res integra that for arriving at a particular figure on each of the heads of damages, the claimant is duty-bound to produce relevant materials, on the basis of which, determination could be made, as to what would be the compensation.?in the absence of any cogent or reliable material on record, I do not wish to award any compensation in this regard. As regards

4 conveyance expenses, nothing has been brought on record. The appellant suffered fracture of both knees, fracture of patella bone of left knee, deep wound on the right shoulder, injuries on the forehead and face, lower left portion of the lip was missing and four teeth of lower jaw and three teeth of upper jaw were completely broken along with the routes. Surgery was performed at Safdurjang Hospital. Later he was admitted to Holy Family Hospital where plates were inserted for healing of his lower bones. His legs were plastered for a month. He also took physiotherapy treatment. The tribunal after taking notice of this fact and in the absence of any cogent evidence awarded Rs. 10,000/- for conveyance expenses. I do not find any infirmity in the order in this regard and the same is not interfered with. 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 suffered fracture of both knees, fracture of patella bone of left knee, deep wound on the right shoulder, injuries on the forehead and face, lower left portion of the lip was missing and four teeth of lower jaw and three teeth of upper jaw were completely broken along with the routes, 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. As regards mental pain and suffering, the tribunal has awarded Rs. 50,000/- to the appellant. The appellant suffered fracture of both knees, fracture of patella bone of left knee, deep wound on the right shoulder, injuries on the forehead and face, lower left portion of the lip was missing and four teeth of lower jaw and three teeth of upper jaw were completely broken along with the routes and underwent various surgeries. He has also to get his plates removed from his legs and has also to undergo plastic surgery for lips. In such circumstance, I feel that the compensation towards mental pain and suffering should be enhanced to Rs. 75,000/-. As regards the compensation towards permanent disability, I feel that the tribunal has rightly not awarded the same. No certificate of disability has been brought on record by the appellant, thus no compensation under this head can be awarded to the appellant. As regards future medical expenses, it has come on record that lower left portion of the lip was missing and he will have to undergo a cosmetic surgery for the same. Also, the plates which were inserted in his leg for recovery need to be removed. The tribunal while deciding the petition overlooked these aspects and thus on this count and in the facts of the present case, Rs. 50,000/- is awarded in this regard. As regards expenses incurred in repairing the damage to the two wheeler of the appellant, the appellant placed on record

5 Ex PW2/A, the bills of the amount spent on repair. Further, the PW2 Sh. Ravender Kumar, Partner at the service station where the scooter was repaired deposed that the total estimate of Rs was spent on the scooter repair. The said testimony of the witness went unrebutted and no cross-examination was done despite opportunity being given was availed by the insurer. The tribunal observed that the appellant did not get the scooter surveyed by the government assessor, also nothing came on record to prove that the scooter was repaired. Despite this the tribunal awarded Rs. 2,000/- to the appellant. In the interest of justice no interference is made in the award in this regard. 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, 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 is allowed to the extent of Rs. 50,000/-. As regards loss of earnings, the income tax return of the assessment year was brought on record. The income according to the said return was Rs. 78,424/- in the year Thus, the monthly income comes to Rs. 6535/- pm. It has also come on record that the appellant could not work for a period of 4 months, from 2/5/1995 onwards, therefore, the tribunal committed no error in awarding Rs. 28,000/- towards loss of income. Thus, the award is not interfered with on this count. 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 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, 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, change of economy, policy being adopted by Reserve Bank of India from time to time and other economic factors. The accident pertains to the year In the facts and circumstances of the case, I do not find any infirmity in the award regarding award of 9% pa by the tribunal and the same is not interfered with. In view of the above discussion, the total compensation is enhanced to

6 Rs. 2,81,400/- from Rs. 1,66,400/-. The differential amount shall be paid to the appellant with upto date 7% 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. With the above direction, the present appeal is disposed of. Sd/- KAILASH GAMBHIR, J.