Delhi High Court
Maj (Now Col.Retd)Dushyant Lal Kapoor vs Lt. N.K. Kohli & Ors. on 4 May, 2009
Author: Kailash Gambhir
Bench: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.43/94
Judgment reserved on: 05.02.2008
Judgment delivered on:04.05.2009
Maj (now Col.Retd) Dushyant Lal Kapoor ......Appellant
Through Mr.R.D.Sahalia, Adv
Versus
Lt.N.K.Kohli & Ors. ........ Respondents
Through: Mr.A.K.Bajpai, Adv
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may be allowed to see the
judgment? NO
2. To be referred to Reporter or not? NO
3. Whether the judgment should be reported in the Digest? NO
KAILASH GAMBHIR, J.
1 The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 28.9.93 for enhancement of compensation. The learned Tribunal awarded a FAO No.43/94 Page 1 of 9 total amount of Rs. 40,000/- with an interest @ 12% PA for the injuries caused to the claimant appellant in the motor accident.
2. The brief conspectus of facts is as under:
3. On 31.1.79 at about 7.30 p.m appellant alongwith his wife was going on the Kachha patri along Mandir Marg towards Mall Road crossing in Delhi Cantonment area. When they were going near Bunglow no. 19 on the said road a motorcycle no. UTL 4390 which was being driven by Respondent no.1 came from behind at a very high speed and hit the appellant as a result of which he fell down & sustained severe head injury as well as fracture of Tibia and Fabula in the left leg. The accident took place due to rash and negligent driving of respondent no.1. The appellant was removed to Army hospital where he remained unconscious for a number of days. He became permanently handicapped and his promotion chances got completely ruined.
4. A claim petition was filed on 8.11.1979 and an award was passed on 28.9.93. Aggrieved with the said award enhancement is claimed by way of the present appeal.
5. Sh. RD Sahalia 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 FAO No.43/94 Page 2 of 9 said judgment of Learned Tribunal firstly, on the ground that the tribunal erred in not awarding adequate compensation on the heads
- mental pain and agony pain and sufferings, special diet, conveyance, treatment and future conveyance. It is submitted that the appellant remained in ICU for about 36 days and remained unconscious for about a week. It is further urged that the Ld.Tribunal has ignored the facts that the career of the appellant was ruined as he could not get his promotion on time and may persons superseded him. Ld. Counsel claimed the amount for loss of leaves suffered by the appellant. Further the counsel pleaded that the counsel erred in awarding an interest of 6% pa instead of 12% pa.
6. I have heard the counsel for the appellant and the respondent and perused the award.
7. In a plethora of cases the 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 FAO No.43/94 Page 3 of 9 regard the Supreme Court in Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197, has classified pecuniary and non-pecuniary damages as under:
"16. This Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd. 9 laying the principles posited: (SCC p.
556, para 9) " 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."
8. In the instant case the tribunal has awarded Rs.30,000/- for general damages and Rs.10,000/- for monetary loss on account of delay in promotion.
9. On perusal of the award, it is manifest that the appellant had not placed on record any bills of medicines. The appellant was treated in Army Hospital which is a Government Hospital meant for FAO No.43/94 Page 4 of 9 Army personnels. It is obvious that even in Government Hospital some expenses are incurred for purchase of medicines from the open market. But the appellant has not placed any bill on file. In view of the injury suffered by the appellant, I award a sum of Rs.5000/- to the appellant for medicines/medical expenses.
10. As regards conveyance expenses, nothing has been brought on record. The appellant suffered fracture of Tibia and Fabula of left leg. The tribunal has not awarded any amount towards conveyance. In view of the nature of injury I grant a sum of Rs.5000/- to the appellant for conveyance.
11. As regards special diet expenses, nothing was brought on record by the appellant to prove the expenses incurred by him towards special diet. The appellant sustained fracture in left leg. He must have also consumed protein-rich/special diet for his early recovery. I award a sum of Rs.7500/- to the appellant for special diet.
12. As regards mental pain & suffering, the tribunal has not awarded separately under this head. The appellant remained admitted in the hospital for 36 days. He remained in ICU for 3 days. His promotion to the post of Lt.Col. Was delayed for one year. He sustained fracture of Tibia and Fabula of left leg. In such FAO No.43/94 Page 5 of 9 circumstance, I feel that the compensation towards mental pain & suffering should be granted to Rs.20,000/-.
13. As regards the compensation towards permanent disability, I feel that the tribunal has not erred in not awarding the same. The appellant has not placed any disability certificate before the Ld.Tribunal. The Tribunal has rightly not awarded any compensation for permanent disability. I do not find any infirmity in the order passed by the Tribunal and the same is not interfered with.
14. 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.10,000/-.
15. As regards loss of Rs.150/- per month for one year because of delay to the post of Ltd. Col., it has been proved by the appellant on record by filing documents that his promotion was delayed for one FAO No.43/94 Page 6 of 9 year. I am inclined to compensate the appellant for this and the amount of compensation for one year comes to Rs. 1800/-.
16. As regard loss of earnings/loss of leaves, nothing has been deposed by the appellant before the Tribunal that he suffered loss of earnings/loss of leaves after the accident. The appellant is a Government Servant. He remained admitted in the hospital for about 36 days as per the deposition made by the appellant. After discharge from hospital he must have spent sometime at home. I consider that he would have taken leaves for about two months. The appellant has mentioned his income as Rs.2000/- p.m in the petition. Taking the same into consideration I award Rs.4000/- for the loss of leaves suffered by him.
17. With regard to loss in future promotion, PW5 Lt.Col.RS Rathee deposed that the appellant was placed in category A6 initially which mean that he is temporary not fit for all duties and subsequently in A3 which means that he is not fit for combat duties in hilly terrain and cold areas. The appellant was also categorized Cat-P which means low physical capability of the head and it was for about 8 months. He was under the treatment of Neuro Surgeon. Category -P was not a permanent category and it was for about 8 months only. However the appellant was in category A3 and A6 due to which the the promotion chances of the appellant was affected. Considering FAO No.43/94 Page 7 of 9 the above, I am inclined to award a sum of Rs. 30,000/- to the appellant for loss of future promotion.
18. As regards the issue of interest that the rate of interest of 6% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 12% 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 under Section 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 @ 6% pa by the tribunal and the same is not interfered with.
19. In view of the foregoing, Rs.5000/- is awarded for expenses towards treatment; Rs.7500/- for special diet; Rs.5000/- for conveyance expenses; Rs.20,000/- for pain and suffering; Rs.10,000/- for loss of amenities and enjoyment of life; Rs.1800/- for FAO No.43/94 Page 8 of 9 loss of promotion to the post of Ltd.Col.; Rs.4000/- for loss of leaves and Rs.30,000/- for loss of promotion.
20. In view of the above discussion, the total compensation is enhanced to Rs. 83,300/- from Rs. 40,000/- 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 within 30 days of this order.
21. With the above directions, the present appeal is disposed of.
04th May, 2009 KAILASH GAMBHIR, J
FAO No.43/94 Page 9 of 9