Suraj Dass vs Shiv Kumar and Others

FGF

Kailash Gambhir, J.—The present appeal is preferred against the award of compensation passed by the Learned Motor Accident Claim Tribunal on 19.7.96. The learned Tribunal awarded a total amount of Rs. 35,000/- with an interest @ 12 % PA for the injuries sustained by the claimant appellant in the motor accident.

The brief conspectus of facts is as under:

On 21.9.84, at about 7:00 PM, appellant, Suraj Dass was going towards Aram Bagh on foot. While he was crossing Desh Bandhu Gupta Road opposite Police Station Paharganj, Delhi, he was hit by a vehicle bearing registration No. DER-8140, which was being driven by R1 in a rash and negligent manner. Due to the accident, appellant sustained injuries.

A claim petition was filed on 1.4.85 and an award was made on 19.7.96. Aggrieved with the said award enhancement is claimed by way of the present appeal.

Sh. O.P. Mannie, counsel for the appellant urged that the award passed by the learned Tribunal is inadequate & insufficient looking at the circumstances of the case and learned tribunal ought to have calculated the award under different heads instead of granting a consolidated amount of Rs. 35,000/-. It was further submitted by Ld. Counsel for the appellant that tribunal has erred in not considering the earning capacity of the appellant which has been adversely affected on account of this accident. The Counsel also expressed his discontent on the amount of compensation granted towards pain and sufferings as the tribunal has not taken into consideration the factum of appellant having undergone operation for bone grafting and skin grafting. It is further submitted that Ld. Tribunal erred in not taking into consideration the dwindling value of rupee due to high rate of inflation while computing the compensation. Further, the counsel pleaded that the tribunal erred in awarding an interest of 12% p.a only from the date of petition till realisation instead of 24% p.a on the awarded amount from the date of filing of the petition till its realization.

Nobody has been appearing for the respondents.

I have heard the counsel for the appellant and perused the record.

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. 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.

Considering the aforesaid decision of the Apex Court, it is manifest that the tribunal ought to have awarded the compensation under different heads of damages instead of awarding a lumpsum amount. In the instant case the tribunal has awarded Rs. 35,000/- as lump sum compensation.

On perusal of the award, it is manifest that the appellant did not produce on record any medical bill to prove the expenses incurred by him towards medicines and medical treatment. As per the deposition of the appellant he suffered injuries in his leg. But it has also come on record that the appellant took treatment at a government hospital and therefore, he was not required to pay a single penny for his treatment.

As per medical record Ex. Px and medical case sheet Ex. PW1/1 the appellant suffered compound fracture on both the bones of the left leg. Although there is no medical bill to prove amount spent towards medical expenses but considering the kind of injuries sustained by the appellant it is manifest that he must have spent money on medicines. I feel that awarding Rs. 10,000/- under the said head would be just and fair.

As regards conveyance expenses, nothing has been brought on record by the appellant to prove the expenses incurred by him towards conveyance expenses. But considering that as per medical record Ex. Px and medical case sheet Ex. PW1/1 the appellant suffered compound fracture on both the bones of the left leg I feel that awarding Rs. 1,000/- under the said head would be just and fair.

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 considering that as per medical record Ex. Px and medical case sheet Ex. PW1/1 the appellant suffered compound fracture on both the bones of the left leg I feel that awarding Rs. 1,000/- under the said head would be just and fair.

As regards mental pain & suffering, considering that as per medical record Ex. Px and medical case sheet Ex. PW1/1 the appellant suffered compound fracture on both the bones of the left leg I feel that awarding Rs. 25,000/- under the said head would be just and fair.

As regards the compensation towards permanent disability, no disability certificate has come on record. I feel that no amount can be awarded under the this head in the absence of documentary evidence.

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. It has come on record that the appellant sustained compound fracture on the left leg. It is manifest that due to such injuries he must have suffered problem in doing his normal work of a cobbler. I feel that awarding Rs. 15,000/- under the said head would be just and fair.

As regards loss of earnings, no proof regarding income of the appellant was brought on record. Further nothing has come on record as to for how much time the appellant could not work as a cobbler. Therefore, no amount can be awarded under this head.

As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 24% 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 @ 12% pa by the tribunal and the same is not interfered with.

In view of the foregoing, Rs. 1,000/- is awarded towards conveyance expenses; Rs. 1,000/- is awarded towards special diet; Rs. 15,000/- towards loss of amenities; Rs. 10,000/- towards medical expenses and Rs. 25,000/- for mental pain and sufferings.

In view of the above discussion, the total compensation is enhanced to Rs. 52,000/- from Rs. 35,000/- 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 respondent insurance company.

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