Delhi High Court
Kapoor Singh vs Bilu And Ors. on 8 April, 2008
Author: Kailash Gambhir
Bench: Kailash Gambhir
JUDGMENT Kailash Gambhir, J.
1. By way of the present appeal, the appellant seeks enhancement in the compensation amount over and above the amount of Rs. 2,29,171/- as awarded by the Tribunal vide order dated 3.9.2007.
2. Brief summary of the facts are as under:
On 26.4.90, the appellant Sh. Kapoor Singh was going on his two wheeler scooter bearing registration No. DDZ 6301 and his friend Ashok was sitting as pillion rider. When they reached at red light of Mathura Road-Kalka Road crossing to go to Noida, a truck bearing registration no. 1406, driven by the driver in a rash and negligent manner hit the scooter, as a result of which, the appellant fell down and was dragged up to 40 feet, due to which he sustained grievous injuries.
3. Counsel appearing for the appellant contends that the appellant has suffered permanent disability to the extent of 70% as his right leg was amputated below knee, but still the Tribunal has awarded meager amount of compensation under various heads of pecuniary and non pecuniary damages. Counsel for the appellant further contends that the appellant was working as a Supervisor (Maintenance) with M/s. Ajanta Art Dyers on a monthly salary of Rs. 1439/- but ignoring the said income, the Tribunal has taken recourse to Minimum Wages Act for assessing the income of the deceased. Counsel further contends that the Tribunal has awarded a meager amount of Rs. 10,260/- towards the medical expenses although the appellant was under medical treatment for a period of more than seven months. Counsel also contends that the appellant remained admitted in Holy Family Hospital from 26.4.90 to 22.6.90 and thereafter again from 4.9.90 to 10.11.90, he remained admitted in Manglawati Hospital.
4. Counsel for the appellant further contends that towards pain and sufferings, a meager amunt of Rs. 40,000/- has been awarded and similarly, towards the future loss of amentities, an amount of Rs. 20,000/- has been awarded. The appellant is also aggrieved on account of the lower amount of compensation granted by the Tribunal towards the loss of earnings as well as on account of permanent disability suffered by the appellant.
5. Per contra, Mr. Kanwal Chaudhary, counsel for the respondent contends that the appellant had failed to prove on record his salary and therefore, under such circumstances, the Tribunal had no option but to assess the income of the appellant under the Minimum Wages Act. Counsel further contends that the appellant failed to prove on record the medical expenses as claimed by him. Counsel contends that in the claim petition, whatever expenses were approved by the appellant, the same were considered by the Tribunal. Even under other heads of the compensation, no fault can be found with the findings of the Tribunal. Mr. Kanwal also contends that the accident in the present case had taken place in the year 1990 and therefore the award of the said compensation of Rs. 2,29,171/- cannot be considered to be on the lower side.
6. I have heard learned Counsel for the parties and have perused the record.
7. 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 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 Divisional Controller, KSRTC v. Mahadeva Shetty , 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. 10,260.75/- for expenses towards medicines; Rs. 5,000/- for special diet; Rs. 5,000/- for conveyance expenses; Rs. 40,000/- for mental pain and sufferings; Rs. 20,000/- towards loss of amenities; Rs. 1,45,860 on account of permanent disability to the extent of 70% and Rs. 3,051/- on account of loss of earnings for a period of three months.
9. On perusal of the award, it becomes manifest that the appellant had placed on record various medical bills, including photocopies of the bills and original, which comes to a total of Rs. 74,806/-. The tribunal gave the observation in the award that the original medical bills were worth Rs. 10,260.75/- and since the other bills were not proved on record as nothing came on record to prove the photocopies of the other bills, thus the tribunal awarded Rs. 10,260.75/- towards medical expenses. It is no more res integra that mere placing of documents on record is not sufficient. It is essential to prove such documents in order to avail the benefit. I do not find any infirmity in the order in this regard and the same is not interfered with.
10. As regards mental pain & suffering, the tribunal has awarded Rs. 40,000/- to the appellant. The appellant sustained grievous injuries and his right leg below the knee was amputated. The accident happened on 26/04/1990 and he remained indoor patient in Holy Family Hospital from 26/04/1990 to 22/06/1990 and again he was admitted to Manglawati Hospital from 04/09/1990 to 10/11/1990. In such circumstance, I feel that the compensation towards mental pain & suffering as awarded by the tribunal is on the lower side and the same is enhanced to Rs. 50,000/-.
11. As regards the compensation towards permanent disability, I feel that the tribunal has erred in not awarding the same appropriately in accordance with the law. The appellant had deposed before the tribunal that at the time of the accident he was working as a Boiler Attendant cum Maintenance Supervisor and was earning Rs. 1,439/- pm had he not met with the accident, he would have become a Senior Maintenance in charge at a salary of Rs. 25,000/- to 26,000/- pm. The income of the appellant was not duly proved on record and therefore, the tribunal assessed the income in accordance with the Minimum wages Act of a skilled workman at Rs. 1,017/- pm.
12. It is no more res integra that mere bald assertions regarding the income of the deceased are of no help to the claimants in the absence of any reliable evidence being brought on record. The thumb rule is that in the absence of clear and cogent evidence pertaining to income of the deceased learned Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act. It has been the consistent view of this Court that whenever aid of Minimum Wages Act is taken while computing income, then increase in minimum wages should also be considered. It is well settled that future prospects are not akin to increase in minimum wages. To neutralize increase in cost of living and price index, the minimum wages are increased from time to time. A perusal of the minimum wages notified under the Minimum Wages Act show that to neutralize increase in inflation and cost of living, minimum wages virtually double after every 10 years. Thus, it could safely be assumed that income of the appellant would have doubled in the next 10 years. The tribunal erred in not considering increase in minimum wages while taking aid of Minimum Wages Act, therefore, the award is modified in this regard.
13. The age of the appellant at the time of the accident was 34 years and the 70% disability of the appellant was duly proved on record as Ex. PW3/A. Therefore, after considering all these factors, the compensation towards disability is awarded at Rs. 2,17,841.40/- to the appellant.
14. As regards loss of amenities, Compensation for loss of amenities of life compensates victim for his inability 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 resulting from the defendant's negligence. In essence, compensation for loss of expectation of life or loss of amenities compensates an individual for loss of life and loss of the pleasures of living. The appellant sustained grievous injuries in the accident and his right leg below the knee was amputated. I feel that the tribunal erred in awarding the same at Rs. 20,000/- and in the circumstances of the case same is allowed to the extent of Rs. 50,000/.
15. As regards loss of earnings, the tribunal awarded Rs. 3,051/- for a period of three months. On perusal of the award it becomes manifest that the accident happened on 26/04/1990 and the appellant remained indoor patient in Holy Family Hospital from 26/04/1990 to 22/06/1990 and again he was admitted to Manglawati Hospital from 04/09/1990 to 10/11/1990, meaning thereby that the appellant was unable to work for the said duration of 4 months and 3 days. Thus, the tribunal erred in awarding Rs. 3,051/- for a period of three months towards loss of earnings.The compensation under this head is enhanced to Rs. 4,068/-.
16. In view of the above discussion, the total compensation is enhanced to Rs. 3,42,170/- from Rs. 2,29,171/-. The differential amount shall be paid 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. 3.
17. With the above directions, the present appeal is disposed of.