Delhi High Court
Shakuntla Gupta & Ors vs Dtc&Ors. on 17 August, 2009
Author: Kailash Gambhir
Bench: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO NO.570/99 & 571/99
Judgment reserved on: 22.08.2008
Judgment delivered on: 17.08.2009
FAO 570/99
Shakuntla Gupta & Ors. ......Appellant
Through Mr.Sanjiv Sharma, Adv
FAO No.571/99
Shakuntla Gupta .......Appellant
Through Mr. Sanjiv Sharma, Adv
Versus
D.T.C.& Ors. ........ Respondents
Through: Mr.S.Gupta, Adv
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
KAILASH GAMBHIR, J.
1. Vide this common order I shall dispose of two appeals bearing FAO Nos. 570/99 and 571/99 filed by the appellants for FAO no.570& 571/99 Page 1 of 15 enhancement of compensation passed by the Tribunal. FAO No. 570/99 has been filed by the LR's of deceased Sri Tej Prakash Mahajan and FAO No. 571/99 has been filed by Ms. Shakuntala Gupta on account of injuries sustained by her in the accident.
2. The present appeals arise out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 31.8.99 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs.70,000/- in FAO no.571/99 and Rs.64,000/- in FAO no. 570/99 with an interest @ 12% PA for the loss caused to the claimants appellants in the motor accident.
3. The brief conspectus of facts is as under:
4. On 31.8.92 Tej Prakash Mahajan (deceased) was driving a two wheeler scooter bearing registration no. DL 1SB 5042. His wife Shakuntla Gupta was sitting on the pillion seat and they were coming from Vikas Puri and going towards Rajouri Garden. At about 1.10 p.m, when they were on the Najafgarh road a DTC bus bearing registration no. DL 1P 9238 came from behind. In the process of overtaking, it hit the two wheeler scooter being driven by the deceased. As a result of the impact, both the occupants of the scooter fell down and sustained grievous injuries. They were removed to DDU Hospital where the doctors declared Tej Prakash FAO no.570& 571/99 Page 2 of 15 Mahajan as 'brought dead'. Mrs. Shakuntla Gupta had received multiple injuries on her body including multiple fractures and was treated at DDU, LNJP Hospital and St. Stephen Hospital. The accident was caused due to rash and negligent driving of offending bus driver.
5. The claim petitions were filed on 1.3.93 and an award was passed on 31.8.99. Aggrieved with the said award enhancement is claimed by way of the present appeal.
6. Sh. Sanjiv Sharma counsel for the appellants in FAO No. 571/99 urged that the award passed by the learned Tribunal is inadequate and insufficient looking at the circumstances of the case. He contended that the tribunal erred in disallowing the bills amounting to Rs.61400/- on account of employment of nurses and granted only Rs.20,000/- in this regard. Ld. Tribunal also erred in assessing the loss of income of the claimant appellant at Rs.10,000/- PM, and the counsel urged for Rs.2,50,000/- to be awarded in this regard. The counsel submitted that the Tribunal awarded a sum of Rs.10,000/- towards mental pain & suffering and averred that it should have been Rs.50,000/-. Further the counsel submitted that the tribunal erred in awarding an interest of 12% pa instead of 18% pa.
FAO no.570& 571/99 Page 3 of 15
7. In FAO no. 570/99 it has been urged by the counsel that the Ld. Tribunal has not considered the complete income of the deceased and stated that the Tribunal erred in holding that the appellants have not suffered any loss on account of the amount of pension received by the deceased. Ld. Counsel further submitted that the Tribunal erred in arriving at loss to the appellants to the tune of Rs. 8000/- p.a. whereas, pecuniary loss to the family was around Rs.5,92,000/-. Ld. Counsel submitted that the Tribunal has not granted compensation on account of loss of love and affection and at least Rs.1,00,000/- should have been granted on account of loss of love and affection to the claimants.
8. Per contra, Mr. J.N. Aggarwal counsel for the respondent urged that the award passed by the tribunal is just and fair and does not call for inference by this court.
9. I have heard counsel for the appellants and the respondent and perused the award.
FAO NO.571/99
10. 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 FAO no.570& 571/99 Page 4 of 15 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 the 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, (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 FAO no.570& 571/99 Page 5 of 15 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."
11. In the instant case the tribunal awarded Rs.20,000/- for expenses towards medicines; Rs.5,000/- for special diet; Rs.5000/- for conveyance expenses; Rs.Rs.10,000/- for pain and agony; Rs.10,000/- for loss of income and Rs.20,000/- for attendant charges.
12. On perusal of the award, it is manifest that the appellant had placed on record various bills of medicines which comes to approx Rs.17,000/-. The tribunal took cognizance of the fact that the appellant sustained serious head injury and fracture of collor bone, right arm and ribs and awarded Rs. 20,000/- even though the appellant could not prove that she had incurred Rs.20,000/- towards medical expenses. I do not find any infirmity in the order in this regard and the same is not interfered with.
13. As regards nursing charges, the appellant had placed five bills dated 30.9.92, 31.10.92, 30.11.92, 31.12.92 & 31.1.93 for a sum of Rs.61,400/-. These bills have been issued in the name of Mrs. Mahajan. The name of the injured in the present case is Mrs. Shakuntla Devi. The appellant has not examined any witness FAO no.570& 571/99 Page 6 of 15 from Dhingra Trained Nurses Burea to prove these bills. Perusal of bill dated 30.9.92 shows that it was issued from 31.8.92 to 30.9.92 for one nurse and from 1.9.92 to 30.9.92 for another nurse. As per the discharge slip Ex.Pw3/A of LNJP Hospital, date of admission is shown as 31.8.92 and date of discharge is shown as 10.9.92. As per discharge summery Ex.PW3/B of St. Stephen's Hospital she was admitted on 9.12.92 and discharged on 16.12.92. When she was admitted in a Government hospital where attendant's are available free of cost, it cannot be appreciated that she had employed the services of the nurse during the said period as mentioned in the bills. The bills in question hence, seem to be procured one. The Tribunal has rightly not compensated the said bills. However, the Tribunal has awarded Rs.20,000/- towards attendant charges in lumpsum. Since, no dispute in this regard is raised by the respondent. I do not find any infirmity in the order of the Ld. Tribunal and the same is not interfered with.
14.. As regards conveyance expenses, nothing has been brought on record. The appellant suffered head injury and fracture of right arm and ribs. The tribunal after taking notice of this fact and in the absence of any cogent evidence awarded FAO no.570& 571/99 Page 7 of 15 Rs.5000/- for conveyance expenses. I do not find any infirmity in the order in this regard and the same is not interfered with.
15. 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 in head and fracture in arms and ribs thus she must have also consumed protein-rich/special diet for her early recovery and awarded Rs. 5000/- for special diet expenses. I do not find any infirmity in the order in this regard and the same is not interfered with.
16. As regards mental pain & suffering, the tribunal has awarded Rs.10,000/- to the appellant. The appellant sustained grievous head injury and fracture of right arm and ribs. In such circumstance, I feel that the compensation towards mental pain & suffering should be enhanced to Rs.25,000/-.
17. As regards loss of earnings, the appellant has stated that after retirement on 31.3.92 as teacher she was imparting tuition to the students and earning Rs.3000/- p.m. The income tax return filed on record showing income of Rs.49,260/- pertained to the year April 91 to March 92 and during the said period she was FAO no.570& 571/99 Page 8 of 15 in Govt.service. No cogent evidence has been led in this respect to prove that she was earning Rs.3000/- p.m. Be that as it may, the appellant was a teacher and I assume that she was earning Rs.3000/- p.m from imparting tuition. She sustained head injury as well as fracture in right arm and ribs. I further assume that she could not have worked for six months. I therefore enhance the compensation on account of loss of earning to Rs.18,000/-.
18. 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 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 FAO no.570& 571/99 Page 9 of 15 infirmity in the award regarding award of interest @ 12% pa by the tribunal and the same is not interfered with.
19. In view of the foregoing, Rs. 20,000/- is awarded for expenses towards treatment; Rs.20,000/- for attendant charges; Rs.5,000/- for conveyance charges, Rs.5,000/- for special diet; Rs.25,000/- for pain and suffering; and Rs.18,000/- towards loss of earnings.
FAO NO.570/99
20. Vide above FAO, the enhancement in the claim petition filed for the death of Shri Tej Prakash has been sought.
21. The appellants claimants had brought on record income tax return for the year 1992-93 filed by the deceased. As per IT return the income has been shown from salary as Rs.18,460/-, income from house property as Rs.3656/- income from other sources Rs.36,593/-, and Rs.27076/- capital gains. It is urged by the Ld. counsel that Rs.27076/- is the income from shares. As far as income of the other sources is concerned the appellants have failed to adduce any income to disclose as to from which source the deceased was drawing the said income and if as per the appellants the income was from the business of stock and shares then also they were required to give enough material to substantiate the said plea by placing some cogent FAO no.570& 571/99 Page 10 of 15 evidence on record. Simply by mere oral deposition the income of the deceased could not have been proved. It is also relevant to point out here that the appellant has placed an income tax assessment order only for the assessment year 1992-1993, but no previous returns or assessment orders were placed on record and, therefore, also it is difficult to believe the version of the appellant with regard to the income of the deceased from stock and shares business. With regard to the claim of the appellant that the deceased was drawing more pension than the appellant no. 1, wife of the deceased, I find there is a merit in the submission of the counsel for the appellant. As per the evidence placed on record the deceased and the appellant no. 1, wife of the deceased was drawing a sum of Rs. 3,500/- pm towards pension, while after the death of the deceased, the wife of the deceased was drawing the pension of Rs. 2,000/- pm, therefore, there is net loss of Rs. 1,500/- pm as far as family pension payable to the wife of the deceased is concerned, therefore, the said difference can be taken into account to determine the income of the deceased. It has been urged that the deceased was planning to start a consultancy firm. But it was yet not started and no presumption can be made at this stage. It has come on record that the deceased was of 61 years of age at the time of death and had retired as Foreign Language Examiner, Ministry of Defence. The tribunal after considering that immediately before the death of the deceased, he had returned a total income of Rs. 36,790/-, including an amount of Rs. 18,460/- on account FAO no.570& 571/99 Page 11 of 15 of salary and Rs. 3,656/- as income from house property and also considering income from other sources; viz share transactions etc. Assessed income of the deceased at Rs. 12,000/- pa. It is no more res integra that in the absence of any cogent evidence as regards income of the deceased, rates of minimum wages as per the Minimum Wages Act is taken as income of the deceased. In the instant case, the deceased was a post-graduate, M.A. in Mathematics, thus as on the date of the accident, i.e. 31/8/1992, his income as per Minimum Wages Act was Rs. 1,457/- pm. To this amount a further amount of Rs. 1,500/- pm on account of loss of family pension is concerned is to be added, meaning thereby that total monthly income of the deceased would come to Rs. 2,957/-. It has been consistently held by this court that whenever income under the Minimum Wages Act is taken into consideration, then increase in minimum wages should also be taken into consideration. Accordingly, the income of the deceased would come to Rs. 4435.50/- pm or Rs. 53,226/- pa. The deceased must have been spending 1/3rd out of the above for his personal upkeep and the loss on account of annual dependency comes to Rs.35,484/-p.a. Therefore, enhancement is made in relation to loss of income of the deceased by this court.
22. In the facts and circumstances of the case, I feel that the tribunal has committed no error in applying the multiplier of 8. This case pertains to the year 1992 and at that time II schedule to the Motor Vehicles Act was not brought on the statute book. The said FAO no.570& 571/99 Page 12 of 15 schedule came on the statute book in the year 1994 and prior to 1994 the law of the land was as laid down by the Hon'ble Apex Court in 1994 SCC (Cri) 335, G.M., Kerala SRTC v. Susamma Thomas. In the said judgment it was observed by the Court that maximum multiplier of 16 could be applied by the Courts, which after coming in to force of the II schedule has risen to 18. The age of the deceased at the time of the accident was 61 years and he is survived by his wife and two sons. In the facts of the present case I am of the view that after looking at the age of the claimants and the deceased and after taking a balanced view considering the multiplier applicable as per the II Schedule to the MV Act, the multiplier of 8 has been rightly applied by the tribunal. Applying the same the amount comes to Rs.2,83,872/- (35,484 x 8).
23. 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 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 FAO no.570& 571/99 Page 13 of 15 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.
24. On the contention regarding that the tribunal has erred in not granting compensation towards loss of love & affection, funeral expenses and loss of consortium. In this regard Rs.25,000/- is granted as compensation towards loss of love and affection; compensation towards funeral expenses is granted at Rs.15,000/- and compensation towards loss of consortium is granted at Rs.25,000/-.
25. As far as the contention pertaining to the awarding of amount towards mental pain and sufferings caused to the appellants due to the sudden demise of the deceased and the loss of services, which were being rendered by the deceased to the appellants is concerned, I do not feel inclined to award any amount as compensation towards the same as the same are not conventional heads of damages.
26. Accordingly, Rs. 2,83,872/- is awarded towards loss of dependency to the appellants, Rs.25,000/- towards loss of love and affection, Rs.15,000/- towards funeral expenses Rs.25,000/- towards loss of consortium.
27. In view of the above discussion, the total compensation is enhanced to Rs.3,48,872/- from Rs.64000/- in FAO no. 570/99 and to FAO no.570& 571/99 Page 14 of 15 Rs.93,000/- from Rs.70,000/- in FAO no.571/99 with interest @ 7.5% per annum from the date of filing of the present petition till realisation and the same should be paid to the appellants by the respondent DTC in the same proportion as awarded by the tribunal.
28. With the above directions, the present appeals are disposed of.
August 17 ,2009 KAILASH GAMBHIR, J
FAO no.570& 571/99 Page 15 of 15