Surjeet Singh vs Virender Kumar and Others

Kailash Gambhir, J.—The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 4.6.98 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs. 4,10,552/- 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 3.7.95 at about 9.15 a.m appellant Surjeet Singh aged about 18� years was hit by a bus bearing No. DL 1P 2747 from behind when he was coming from Tigri Khanpur on his cycle and was going to Defence Colony, Delhi. The bus was being driven by respondent No. 1 Virender Kumar in a rash and negligent manner. Due to the forceful impact, the appellant fell on the road and sustained serious injuries. He was operated for foot. Entire flesh of the right heels of the appellant removed and then his right foot was amputated. The skin grafting of the right heel of the petitioner was also done.

A claim petition was filed on 02.12.95 and an award was passed on 4.6.98. 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. The counsel 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 income of the claimant appellant at Rs. 3000/- PM and monthly loss Rs. 1200/- on the basis of 40% loss of earning and stated that the same should have been Rs. 4000/- p.m. Based on this, it is further contended that the loss of income should also be enhanced, accordingly. He further submits that future increase in income should also be considered. Ld. Tribunal has erred in not considering the overtime which was being undertaken by the appellant besides daily wages. The Counsel also expressed his discontent on the conveyance expenses and stated that Tribunal ought to have awarded future conveyance allowance to the appellant. Ld. Tribunal has erred in granting a sum of Rs. 16,000/- towards marriage prospects of the appellant and he became crippled person at such a young age and he claims Rs. 2,00,000/- on this account.

The Tribunal awarded a sum of Rs. 35,000/- towards mental pain & suffering but the counsel shows his discontent to that as well and averred that it should have been Rs. 1,00,000/-. Further the counsel pleaded that the counsel erred in awarding an interest of 12% pa instead of 18% pa.

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 has awarded Rs. 40,351/37 for expenses towards medicines; Rs. 1000/- for artificial leg; Rs. 2,59,200/- for future loss in earning capacity; Rs. 60,000/- for loss of marriage prospects, Rs. 15000/- for special diet and for conveyance expenses; Rs. 35,000/- for mental pain and sufferings;

On perusal of the award, it becomes manifest that the appellant had placed on record various bills amounting to Rs. 40,351/37. As regards medical expenses, the tribunal took cognizance of the fact that the appellant sustained serious injuries in his leg and his leg was amputated. Tribunal has awarded Rs. 1000/- for artificial leg. Regarding medical expenses, I do not find any infirmity in the order in this regard and the same is not interfered with. However, compensation in regard to artificial leg is enhanced to Rs. 5,000/-.

As regards conveyance expenses, nothing has been brought on record. The appellant suffered amputation of right foot. The tribunal after taking notice of this fact and in the absence of any cogent evidence awarded Rs. 15,000/- for conveyance expenses and special diet. 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. 35,000/- to the appellant. The appellant sustained amputation of his right foot. In such circumstance, I feel that the compensation towards mental pain & suffering should be enhanced to Rs. 50,000/-.

As regards loss of future earning capacity and permanent disability, the tribunal has awarded Rs. 2,59,200/-. The Tribunal has considered the income of appellant as Rs. 3000/- p.m. The disability mentioned to be 60% in the certificate is for a particular limb and not for a entire whole body. The Tribunal has rightly considered the disability to be 40% and after applying appropriate multiplier of 18 has awarded Rs. 2,59,200/-. Therefore, after considering all these factors, I do not find any infirmity in the award in this respect and the same is not interfered with.

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. 25,000/-.

As regards loss of earnings, no proof regarding income of the appellant was brought on record. The tribunal assessed notional income of the appellant at Rs. 3000 pm. Taking into consideration that the appellant suffered amputation of right foot, I take it that he could not have worked for 6 months. Therefore, the loss of earnings for six months comes to Rs. 18,000/-.

As regards Marriage Prospects, the Tribunal has awarded Rs. 60,000/-. I do not find any infirmity in the order in this respect and the same is not interfered with.

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 18% 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, change of economy, 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. 40,351/- is awarded for expenses towards treatment; Rs. 5000/- for purchase of artificial limb; Rs. 15000/- for special diet and conveyance expenses; Rs. 50,000/- for pain and suffering; Rs. 2,59,200/- for loss of earning capacity, Rs. 25,000/- for loss of amenities and enjoyment of life Rs. 60,000/- for loss of marriage prospects and Rs. 18,000/- for loss of earning.

In view of the above discussion, the total compensation is enhanced to Rs. 4,72,551/- from Rs. 4,10,552/- along with interest on the differential amount @ 7.5% per annum from the date of institution of the petition till realisation of the award and the same shall be paid to the appellant by the respondents as directed by the tribunal and within 30 days of this order.

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