FAO No. 6/2001 Page 1 of 9 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No. 6/2001 Judgment reserved on: 1.4.2008 % Judgment delivered on: 4.5.2009 Dr. Rajinder Kumar Babbar ...... Appellant Through: Mr. O.P. Goyal, Advocate versus Smt. A. Bhasin & Ors. ..... Respondents Through: Mr. Pradeep Gaur, Advocate 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 NO in the Digest? KAILASH GAMBHIR, J. 1. The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 23/9/2000 for enhancement of compensation. The learned Tribunal awarded a total FAO No. 6/2001 Page 2 of 9 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. That the appellant, Dr. Rajinder Kumar Babber, was coming from Mehrauli side towards his residence, Kashmere Gate area, on Aurbindo Marg and when he was so going towards Safdarjung Hospital side on his correct side, car No. WHE-6023, driven rashly, recklessly and negligently by respondent No. 1, came from the opposite direction, i.e. Safdarjung Hospital side and took a sudden and abrupt turn towards Safdarjung Development Area after coming on the wrong side and hit the appellant and the motor cycle on which the appellant was going with a great force, as a result of which the appellant was thrown at a distance and was injured. 4. A claim petition was filed on 29/6/1982 and an award was passed on 23/9/2000. Aggrieved with the said award enhancement is claimed by way of the present appeal. 5. Sh. O.P. Goyal counsel for the appellant/claimant urged that the tribunal erred in awarding a meager amount of Rs. 40,000/- only as compensation. The counsel maintained that the appellant had stated before the tribunal that he could not go to his clinic for 4 ½ months FAO No. 6/2001 Page 3 of 9 and had to employ two full time employees in place of one half time employee due to the accident and also used to travel by public transport, therefore, compensation in this regard to the extent of Rs. 1,15,000/- should have been granted by the tribunal. The counsel contended that the amount of compensation towards pain and sufferings in the facts of the case should have been allowed at Rs. 2,00,000/-. The counsel submitted that the tribunal did not properly assess the loss suffered by the appellant towards professional loss/ loss of income. The counsel also averred that the tribunal erred in not awarding compensation @ 12% pa from the date of filing of the petition till realization. 6. Per contra, Mr. Pradeep Gaur counsel for the respondent insurance company submitted that the award passed by the tribunal is just and fair and does not require any interference by this court. 7. I have heard learned counsel for the parties and perused the record. 8. 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 FAO No. 6/2001 Page 4 of 9 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 into 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 the loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is FAO No. 6/2001 Page 5 of 9 shortened; ( iv ) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.” 9. In the instant case the tribunal awarded Rs. 5,000/- for expenses towards medicines and conveyance expenses; Rs. 28,000/- for mental pain and sufferings; loss of amenities and expectation of life and Rs. 7,000/- on account of loss of earnings for 6 months. 10. On perusal of the award, it is manifest that the appellant had not placed on record any medical bills. As regards conveyance expenses, also nothing has been brought on record. The tribunal took cognizance of the fact that the appellant sustained fracture of collar bone, right femur shaft, 8th, 9th and 10th ribs, both bones of right leg and right knee and awarded Rs. 5,000/- even though the appellant could not prove that he had incurred the said amount towards medical expenses and conveyance expenses. I do not find any infirmity in the order in this regard and the same is not interfered with. 11. 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 should have taken notice of the fact that since the appellant sustained fracture of collar bone, right femur shaft, 8th, 9th and 10th ribs, both bones of right leg and right knee, thus, he must have also consumed protein-rich/special diet for FAO No. 6/2001 Page 6 of 9 his early recovery and should have at least awarded Rs. 5,000/- for special diet expenses. 12. As regards mental pain & sufferings, loss of amenities of life and loss of expectation of life, the tribunal awarded a consolidated sum of Rs. 28,000/- to the appellant. The appellant sustained fracture of collar bone, right femur shaft, 8th, 9th and 10th ribs, both bones of right leg and right knee. In such circumstance and also considering the decision of the Apex Court in R.D. Hattangadi (Supra), I feel that the compensation under these heads should have been separately assessed by the tribunal. Therefore, compensation towards mental pain & suffering is awarded at Rs. 25,0000/- and Rs. 3,000/- is awarded towards loss of expectation of life. 13. 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. Considering that the appellant sustained fracture of collar bone, right femur shaft, 8th, 9th and 10th ribs, both bones of right leg and right knee, I feel that the tribunal erred in not awarding compensation under this head separately and in the FAO No. 6/2001 Page 7 of 9 circumstances of the case same is allowed to the extent of Rs. 25,000/- . 14. As regards the compensation towards permanent disability, I feel that the tribunal has not erred in not awarding the same. Since nothing was provided on record to prove the disability suffered by the appellant. Thus, no interference is made in the award in this regard. 15. As regards medical attendants, the appellant had not placed on record anything to prove the same. In the absence of any cogent or reliable material on record, I do not wish to award any compensation in this regard. 16. As regards loss of earnings, no proof regarding income of the appellant was produced on record. It is no more res integra that mere bald assertions regarding the income of the injured are of no help to the claimant 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 injured learned Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act. However, considering that no dispute in this regard is raised by the respondents and that on applying the said principle at this stage, the compensation under this head will FAO No. 6/2001 Page 8 of 9 dwindle down and thus in the interest of justice, the award is not interfered with in this regard and compensation towards loss of income taken at Rs. 7,000/- for 6 months is mentioned. 17. As regards the issue of interest that the tribunal erred in awarding an interest for the period of 10 years only instead of allowing the same from the date of filing of the petition till realization. The compensation for the period when the appellant himself was negligent in pursuing the case has been disallowed. On perusal of the award it comes into light that the appellant had been negligent and also took a lot of time in examining the witnesses. No doubt that the MV Act is a beneficial piece of legislation, legislated with the purpose of giving relief to the victim of the motor accident but at the same time, a victim of the motor accident cannot be allowed to gain benefit out of his own faults and negligence due to which delay was caused in disposal of the case. Therefore, the tribunal rightly, disallowed the interest to the appellant for the said period when the appellant was negligent in pursuing the case. Therefore, no interference is made in the award on this count. 18. In view of the foregoing, Rs. 5,000/- is awarded for expenses towards medicines and conveyance expenses; Rs. 5,000/- for special FAO No. 6/2001 Page 9 of 9 diet; Rs. 25,000/- for mental pain and sufferings; Rs. 25,000/- towards loss of amenities; Rs. 3,000/- for loss of expectation of life; and Rs. 7,000/- on account of loss of earnings. 19. In view of the above discussion, the total compensation is enhanced to Rs. 70,000/- 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 a period of 30 days. 20. With the above directions, the present appeal is disposed of. 04th May,2009 KAILASH GAMBHIR, J.