Shri Kunwar Mahinder Singh vs Bhupinder Singh and Others

Kailash Gambhir, J.—The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 20.11.2001 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs. 1,06,345/- with an interest @ 9% PA for the injuries caused to the claimant appellant in the motor accident.

The brief conspectus of facts is as under:

On 20.9.98, at about 9:55AM, the appellant was proceeding on his two wheeler scooter from his residence in Moti Bagh to his office i.e. High Court of Delhi at Sher Shah Road, New Delhi. When he reached at C-Hexagen Road, opposite Jodhpur Hostel Mess, a bus bearing registration No. DEP-5939 being driven by R1 in a rash and negligent manner came from the side of Pandara Road. The said bus was taking a turn towards Sher shah Road and in that process, the front left corner of the bus struck against the rear side of the two wheeler scooter. The front left door of the bus was flung opened and it also dashed against the two wheeler scooter of the appellant. The appellant alongwith the scooter was dragged by the bus causing extensive injuries to the appellant.

A claim petition was filed on 17.3.1989 and an award was passed on 20.11.2001. Aggrieved with the said award enhancement is claimed by way of the present appeal.

Sh. O.P. Goyal, 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 granting Rs. 20,000/- towards medical expenses. He contended that an amount of Rs. 2.75 Lacs towards the medical treatment and expenses ought to have been awarded by the tribunal. The claimant appellant is not able to produce medical 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 operated for open reduction and internal fixation of left ulna and bone grafting was also done, the learned Tribunal should have considered awarding that amount. Enhancement is also claimed on the ground that a sum of just Rs. 5000/- is awarded towards conveyance instead of the claim of Rs. 4,00,000/-. Amount towards the special diet is also sought to be enhanced from Rs. 5000/- to Rs. 1,00,000/-. It is further stated that Ld. Tribunal ought to have awarded Rs. 3,00,000/- as damages for cost of transport and conveyance during the treatment and afterwards. A compensation of Rs. 2,00,000/- is also sought on account of future treatment. The counsel further stated that damages on account of disfigurement of the body needs to be increased to Rs. 2,00,000/-. It is also stated by the counsel that the compensation of Rs. 30,000/- awarded by the Ld. Tribunal towards pain and suffering is on the lower side. Further the counsel pleaded that the counsel erred in awarding an interest of 9% pa instead of 15% p.a. It is further submitted that Ld. Tribunal has not considered the fall in the value of money between the date of accident and the date of judgment.

Mr. D.K. Sharma counsel for the respondent contended that the award passed by the tribunal is just and fair thus, no interference is warranted 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 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 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. 9 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 has awarded Rs. 20,000/- for expenses towards medicines; Rs. 5000/- for special diet; Rs. 5000/- for conveyance expenses; Rs. 10,000/- for transportation for the period of one year for which he was unable to drive the two wheeler scooter; Rs. 30,000/- for mental pain and sufferings; Rs. 20,000/- towards disfigurement of the body; Rs. 10,000/- towards future treatment and Rs. 6345/- on account of loss of leave.

The appellant suffered fracture of ribs (6 to 8on the right side), fracture of right elbow and fracture of elbow joint. Apart from these, he also suffered deep abrasions on the right side of the chest, right arm and on the right side of the face as is evident from the photograph Ex. PW11/64, PW11/64A, 65 and 69.

On perusal of the award, it is manifest that the appellant had placed on record various bills which were proved by the statements of PW 2 Ms. Manju Gupta; PW 3 Rajinder Kr. Gupta & PW9 Subhash Mehta, which comes to a total of Rs. 15,660/-. As regards medical expenses, the tribunal took cognizance of the fact that the appellant suffered fracture of ribs (6 to 8on the right side), fracture of right elbow and fracture of elbow joint. Apart from these, he also suffered deep abrasions on the right side of the chest, right arm and on the right side of the face as is evident from the photograph Ex. PW11/64, PW11/64A, 65 and 69 and awarded Rs. 20,000/- even though the appellant could not prove that he had incurred the said amount towards medical expenses. I do not find any infirmity in the order in this regard and the same is not interfered with.

As regards conveyance expenses, nothing has been brought on record. The appellant suffered fracture of ribs (6 to 8on the right side), fracture of right elbow and fracture of elbow joint. Apart from these, he also suffered deep abrasions on the right side of the chest, right arm and on the right side of the face as is evident from the photograph Ex. PW11/64, PW11/64A, 65 and 69. The tribunal after taking notice of this fact and in the absence of any cogent evidence awarded Rs. 5,000/- 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 serious injuries and suffered fracture of ribs (6 to 8on the right side), fracture of right elbow and fracture of elbow joint. Apart from these, he also suffered deep abrasions on the right side of the chest, right arm and on the right side of the face as is evident from the photograph Ex. PW11/64, PW11/64A, 65 and 69, thus he must have also consumed protein-rich/special diet for his early recovery and awarded Rs. 5,000/- 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 & suffering, the tribunal has awarded Rs. 30,000/- to the appellant. The appellant suffered fracture of ribs (6 to 8on the right side), fracture of right elbow and fracture of elbow joint. Apart from these, he also suffered deep abrasions on the right side of the chest, right arm and on the right side of the face as is evident from the photograph Ex. PW11/64, PW11/64A, 65 and 69 and he deposed as PW 11 that he has scars on his body which are incurable and also that pus comes out during summer from these scars and there is itching and pain in them. He also stated that he cannot straighten his right arm completely. In such circumstance, I feel that the compensation towards mental pain & suffering should be enhanced to Rs. 50,000/-.

As regards the compensation towards loss of earnings due to permanent disability, no disability certificate has been brought on record, therefore, no compensation in this regard can be awarded.

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. 50,000/-.

As regards, future medical expenses the tribunal awarded Rs. 10,000/-. Considering that the appellant suffered fracture of ribs (6 to 8on the right side), fracture of right elbow and fracture of elbow joint. Apart from these, he also suffered deep abrasions on the right side of the chest, right arm and on the right side of the face as is evident from the photograph Ex. PW11/64, PW11/64A, 65 and 69 and he deposed as PW 11 that he has scars on his body which are incurable and also that pus comes out during summer from these scars and there is itching and pain in them. He also stated that he cannot straighten his right arm completely. I feel that the compensation under this head should be enhanced to Rs. 25,000/-.

As regards disfigurement, the tribunal awarded Rs. 20,000/-. In the facts of the present case, considering that it has come on record that a large chunk of skin was scooped out from right arm and chest and considering the condition of the scars, I feel that the same should be enhanced to Rs. 25,000/-.

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 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 @ 9% pa by the tribunal and the same is not interfered with.

In view of the foregoing, Rs. 20,000/- is awarded for expenses towards medicines; Rs. 5000/- for special diet; Rs. 5,000/- for conveyance expenses; Rs. 10,000/- for transportation for the period of one year for which he was unable to drive the two wheeler scooter; Rs. 50,000/- for mental pain and sufferings; Rs. 25,000/- towards disfigurement of the body; Rs. 50,000/- for loss of amenities; Rs. 10,000/- towards future treatment and Rs. 6345/- on account of loss of leave.

In view of the above discussion, the total compensation is enhanced to Rs. 1,81,345/- from Rs. 1,06,345/- with interest on the differential amount @ 7.5% per annum from the date of filing of the petition till realisation and the same shall be paid to the appellant by the respondent insurance company within 30 days of this order.

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