Sh. Riazuddin vs DTC and Another

Kailash Gambhir, J.—The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 30.3.99 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs. 1,00,000/- 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 11.3.94, at about 11:55, the appellant was going on his two wheeler scooter on Rama Road to his place of work at C-64, Mayapuri, New Delhi. When the appellant reached near 8/42, Industrial Area, Kirti Nagar, a DTC bus bearing registration No. DL-1P-9074 came from behind at a fast speed in a rash and negligent manner and overtook the appellant from left side and took a right turn without giving any signal and in the process, hit the scooter of the appellant . As a result appellant fell down and the rear wheel of the bus ran over the left foot of the appellant resulting into crush injuries and the left toe of the appellant was amputated.

A claim petition was filed on 28.5.94 and an award was passed on 30.3.99. Aggrieved with the said award enhancement is claimed by way of the present appeal.

Sh. R.D. Shahalia, 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 loss of future income of the claimant appellant as he suffered less than 40% permanent disability. The Counsel also expressed his discontent on the amount of compensation granted towards treatment, medicines, special diet & conveyance. Ld. Counsel for the appellant has further contended that tribunal has not awarded any amount for loss of happiness and loss of amenities in a happy married life as well as for cost of litigation & shortening of life expectancy. The Counsel also expressed his discontent on the amount of compensation granted towards pain and suffering. Further the counsel pleaded that the counsel erred in awarding an interest of 12% pa.

Mr. J. N. Aggarwal, counsel for the respondents refuted the contentions of counsel for the appellant and submitted that the award passed by the learned tribunal is just and fair and does not require interference 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 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 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. 37,770/- for expenses towards treatment; Rs. 3000/- for special diet; Rs. 3000/- for conveyance expenses; Rs. 8,590/- for loss of wages & Rs. 45,000/- for permanent disability and pain and sufferings.

On perusal of the award, it is manifest that the appellant had placed on record various bills Ex. P2; P11; P6 to 10; P12 to 31; P36; P37; P41; P47 and P52 amounting to Rs. 37,770/-. It is no more res integra that in order to claim compensation under any head of pecuniary damages, the claimant has to prove the amount spent by him under the said head and in the absence of any proof compensation cannot be claimed. Therefore, I do not find any infirmity in the order in this regard and the same is not interfered with.

As regards the issue that the tribunal awarded only Rs. 3,000/- as conveyance expenses & only Rs. 3,000/- as special diet expenses, I feel that the tribunal has already been generous and therefore, no interference is required in the award in this regard since nothing was brought on record by the appellant to prove the expenses incurred by him towards conveyance and special diet expenses. Therefore, the award is not modified in this regard.

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. Considering that the appellant suffered amputation of his toe, I feel that the tribunal erred in not awarding compensation under this head and in the circumstances of the case same is allowed to the extent of Rs. 25,000/-.

As regards loss of earnings, no proof regarding income of the appellant was brought on record. The appellant deposed that at the time when he met with the accident he was working with Goldy Industries, C-64, Mayapuri and was earning Rs. 2,700/- pm. Since nothing has come on record by way of documentary evidence as regards the proof of the income of the appellant and thus, the tribunal assessed the income of the appellant by taking aid of the Minimum Wages Act to assess the income as that of a unskilled workman i.e. Rs. 1,382/-. The tribunal considering the evidence on record, Ex. PW2 to P4, assessed the loss of income of the appellant for a period of six months and awarded Rs. 8,590/- as compensation for loss of earning. In the absence of any proof having been brought on record by the appellant as regards the fact that he could not work for more than six months, compensation cannot be awarded for more than six months to the appellant. Therefore, the award is not interfered with in this regard and compensation towards loss of income is taken at Rs. 8,590/-.

As regards mental pain & suffering and permanent disability, the tribunal has awarded Rs. 45,000/- to the appellant. The left leg of the appellant was operated upon, skin grafting was done and the toe of his left foot was amputated. The tribunal ought to have assessed them separately, therefore, on the basis of Ex P1 it is manifest that the appellant suffered disability to the extent of less than 40%. Further, The income of the appellant as discussed above is assessed at Rs. 1382/- pm. The appellant at the time of the accident was of 26 years of age and thus, the multiplier of 16 is applicable in the facts of the present case. Thus, the disability compensation would come to Rs. 1,06,137/-(1382 x 12 x 16 x 40/100). Further, considering that the appellant''s left leg was operated upon, skin grafting was done and also his toe of the left foot was amputated, I feel that Rs. 20,000/- towards mental pain and suffering would be just and fair.

As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side, 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 u/s 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.

In view of the foregoing, Rs. 37,770/- is awarded for expenses towards treatment; Rs. 3000/- for special diet; Rs. 3000/- for conveyance expenses; Rs. 8,590/- for loss of wages; Rs. 25,000/- for loss of amenities and enjoyment of life & Rs. 1,06,137/- for permanent disability and Rs. 20,000/- for pain and sufferings.

In view of the above discussion, the total compensation is enhanced to Rs. 2,03,497/- from Rs. 1,00,000/- 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 No. 1.

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