Sh. Jagram @ N.D. Tiwari vs Sh. Ramesh Chander and Another

Kailash Gambhir, J.—The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 11.1.1999 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs. 17,000/- with an interest @ 12% PA for the injuries caused to the claimant appellant in the motor accident.

The brief conspectus of facts is as under:

On 5.7.1986 at about 1:35 pm the petitioner along with his two sisters was going on a cycle rickshaw. When he reached near Durgapuri Chowk, Loni Road, a bus bearing registration No. DHP 3511, which was being driven in a rash or negligent manner by respondent No. 1, hit the rickshaw. As a result, the petitioner and his two sisters fell on the road and sustained injuries. The petitioner received serious multiple fractures on his person.

A claim petition was filed on 5.1.1987 and an award was made on 11.1.1999. Aggrieved with the said award enhancement is claimed by way of the present appeal.

The appellant claimant claims enhancement through this appeal. The 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 meager sum towards medical expenses. He claimed an amount of Rs. 20,000/- towards the medical treatment and expenses. Enhancement is also claimed on the ground that a meager amount is awarded towards conveyance and the tribunal erred in not considering that the appellant visited hospital for quiet some time as an out-patient. The Tribunal awarded a sum of Rs. 2,000/- towards mental pain & suffering but the counsel shows his discontent to that as well and averred that it should have been Rs. 50,000/-. For permanent disablement also he sought enhancement from Rs. 10,000/- on the ground that he suffered multiple injuries and compound fracture. Further the counsel urged that the counsel erred in awarding an interest of 12% pa for a period from 5/1/1987 to 15/1/1987 and from 25/5/1996 till final realization and no compensation has been awarded for the intervening period.

Per contra Mr. J.N. Aggarwal counsel for the respondent refuted the contentions of counsel for the appellant and submitted that the tribunal has already been quite generous and awarded compensation even in the absence of any documentary proof regarding the medical expenses; extent of disability etc. therefore, the award should not be interfered by this court.

I have heard the counsel for the parties and 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 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 The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another, , has classified pecuniary and non-pecuniary damages as under:

This Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd. laying the principles posited: (SCC p. 556, para 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 awarded Rs. 5,000/- for expenses towards medicines and for conveyance expenses; Rs. 2,000/- for mental pain and sufferings; and Rs. 10,000/- on account of permanent disability.

On perusal of the award, it is manifest that the appellant did not place any medical bill on record to prove the expenses incurred by him towards the treatment. Dr. Mathew Varghese deposed as PW4 and stated that the treatment at the hospital was free. As regards medical expenses, the tribunal took cognizance of the fact that the treatment at the hospital was free and thus denied compensation towards medical treatment. But considering the fact that the appellant''s arm was fractured and was plastered for about three months and must have spent some amount on medicines and also considering the fact that the appellant must have visited hospital for some time for proper recovery. I feel that award of Rs. 5000/- in this count is on the lower side and should be enhanced from Rs. 5,000/- to Rs. 10,000/-.

As regards special diet expenses, Dr. Mathew Varghese deposed as PW4 that special diet was not recommended to the appellant. Also, the appellant admitted that special diet was not recommended to him by the doctor. Considering this, the tribunal did not award any compensation 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 & suffering, the tribunal has awarded Rs. 2,000/- to the appellant. The appellant''s arm was fractured and was plastered for about three months and Dr. Mathew Varghese deposed as PW4 that the appellant received partial impairment in his right elbow. In such circumstance, I feel that the compensation towards mental pain & suffering should be enhanced to Rs. 15,000/-.

As regards the compensation towards permanent disability, the tribunal has awarded Rs. 10,000/- to the appellant. Although, nothing has come on record to prove the extent of disability but considering that Dr. Mathew Varghese deposed as PW4 that the appellant received partial impairment in his right elbow. The doctor although could not tell the percentage of disability but he did state that the appellant would find some difficulty in working with the right arm due to partial impairment. I feel that the compensation in this regard should be enhanced to Rs. 20,000/-.

As regards compensation for loss of amenities of life, 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. Considering that Dr. Mathew Varghese stated that the appellant would find some difficulty in working with the right arm due to partial impairment, I feel that the tribunal erred in not awarding the Compensation for loss of amenities and in the circumstances of the case same is allowed to the extent of Rs. 15,000/-.

As regards the issue of interest that the tribunal erred in awarding rate of interest to the appellants from 5/1/1987 to 15/1/1987 and from 25/5/1996 till final realisation instead of awarding the same from the date of institution of the petition till realisation, I feel that it does not require any interference. The tribunal observed that the appellant did file the petition on 5/1/1987; the issues were framed on 16/7/1987 and the evidence was closed on 24/5/1996, therefore, it is manifest that the appellant took a long time, about 9 years, to conclude his evidence. Nobody can be allowed to take benefit of it''s own wrong. The Tribunal is fully justified in granting the interest in above said manner and, therefore, no interference is warranted.

Therefore, Rs. 10,000/- is awarded towards medical expenses and conveyance expenses; Rs. 15,000/- towards mental pain & suffering; Rs. 20,000/- towards permanent disability and Rs. 15,000/- towards loss of amenities of life.

In view of the above discussion, the total compensation is enhanced to Rs. 60,000/- from Rs. 17,000/- 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 respondents.

With the above direction, the present appeal is disposed of.