Vedwati vs Kishore Singh and Others

Kailash Gambhir, J.—The present appeal arises out of the award of compensation passed by the Learned Motor Accident Claim Tribunal on 17.2.2004 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs. 1,05,000/- with an interest @ 6% PA for the injuries caused to the claimant appellant in the motor accident.

The brief conspectus of facts is as under:

The appellant along with other family members met with an accident on 2.8.1997, at about4:30PM near Khel Khal, Peeple Khothi on Neel Kanth Mandir Marg, Laxman Jhulla, District Pauri Garhwal, U.P. They were on a pilgrimage to Neel Kanth Mandir and boarded Taxi/Jeep bearing registration No. UP-7C-2870 @ Rs. 35 per passenger from Swarg Ashram, Rishikesh which was being driven by Respondent No. 1. On their way to Neel Kanth Mandir, Respondent No. 1 was warned by the occupants of the oncoming traffic/vehicles to remain cautious of likely land slide as the earth from the loose hills falling at some places on the road to the Mandir nonetheless Respondent No. 1 drove rashly, negligently and recklessly ahead and the Respondent No. 1 even saw some stones falling on the road but did not stop his vehicle. Some boulder fell down from the land slide on to the passengers sitting in the jeep. In the said accident, some of the passengers died and the appellant sustained injuries.

A claim petition was filed on 20.12.1997 and an award was made on 17.2.2004. Aggrieved with the said award enhancement is claimed by way of the present appeal.

Sh. N.S. Dalal, Counsel for the appellant urged that the award passed by the learned Tribunal is inadequate and insufficient looking at the circumstances of the case. He assailed the said award of Learned Tribunal firstly, on the ground that the tribunal erred in rejecting the reimbursement of purchase of medicines as appellant sustained grievous injuries in the accident and remained under treatment for a period of 3-4 months. It was contended that Ld. Tribunal ought to have awarded Rs. 80,000/- under this head. It is further submitted that Rs. 15,000/- is awarded by the Ld. Tribunal for medical expenses whereas same should have been Rs. 50,000/-. The Counsel also showed his discontent to the amount of compensation awarded by the Ld. Tribunal towards pain and sufferings and stated that same should have been Rs. 1,00,000/-. Enhancement is also claimed on the ground that a sum of just Rs. 2500/- is awarded towards special diet instead of the claim of Rs. 10,000/-. Amount towards the conveyance is also sought to be enhanced to Rs. 15,000/-. The Counsel further sought enhancement of the compensation awarded for loss of amenities of life and enjoyment from Rs. 30,000/- to Rs. 1,00,000/-.

Ms. Meenakshi Chauhan Counsel for the respondent while refuting the contentions of Counsel for the appellant contended that the award passed by the tribunal is just and fair and same does not require any interference by this court.

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. 9 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. 15,000/- for expenses towards medicines; Rs. 2500/- for special diet; Rs. 7500/- for conveyance expenses; Rs. 50,000/- for mental pain and sufferings; Rs. 30,000/-towards loss of amenities.

On perusal of the award, it is manifest that the appellant had placed on record various bills Ex. PW1/1 to PW1/9 PW1/11, PW1/12, PW1/22, PW1/31 which comes to a total of Rs. 11,270/-. As regards medical expenses, the tribunal took cognizance of the fact that the appellant suffered grievous injuries in the nature of compound fracture on the left hand, dislocation of the right shoulder, right side cheek bone fracture and two fractures on the left side of the neck and must have spent some amount on purchase of medicines. Even though the appellant could not prove that she had incurred Rs. 15,000/- towards medical expenses but still the Tribunal increased the amount from Rs. 11,270/- to Rs. 15,000/-. I do not find any infirmity in the order in this regard and the same is not interfered with.

As regards conveyance expenses, nothing has been brought on record. The appellant suffered grievous injuries in the nature of compound fracture on the left hand, dislocation of the right shoulder, right side cheek bone fracture and two fractures on the left side of the neck. The appellant deposed as a witness that she had to employ ambulance for travelling at times and the same costed her Rs. 300/- each time. But nothing has been brought on record to prove the same. The tribunal after taking notice of this fact and in the absence of any cogent evidence awarded Rs. 7,500/- for conveyance expenses. I do not find any infirmity in the order in this regard and the same is not interfered with.

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 suffered grievous injuries in the nature of compound fracture on the left hand, dislocation of the right shoulder, right side cheek bone fracture and two fractures on the left side of the neck, thus she must have also consumed protein-rich/special diet also for her early recovery and awarded Rs. 2,500/- for special diet expenses. I feel that the same should be enhanced to Rs. 5,000/- in the facts and circumstances of the case.

As regards mental pain & suffering, the tribunal has awarded Rs. 50,000/- to the appellant. The appellant suffered grievous injuries in the nature of compound fracture on the left hand, dislocation of the right shoulder, right side cheek bone fracture and two fractures on the left side of the neck. In such circumstance, I do not find any infirmity in the order in this regard and the same is not interfered with.

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. I feel that the same should be enhanced and in the circumstances of the case considering that the appellant suffered grievous injuries in the nature of compound fracture on the left hand, dislocation of the right shoulder, right side cheek bone fracture and two fractures on the left side of the neck and thus it must have been inconvenient for her to take part in normal functioning of life as she used to prior to the accident. Therefore, the same is allowed to the extent of Rs. 50,000/-.

From the foregoing, the compensation towards loss of amenities and enjoyment of life is awarded at Rs. 50,000/-; Rs. 50,000/- towards mental pain and sufferings; Rs. 5,000/- towards special diet; Rs. 7,500/- towards conveyance expenses and Rs. 15,000/- towards medical expenses including purchase of medicines.

In view of the above discussion, the total compensation is enhanced to Rs. 1,27,500/- from Rs. 1,05,000/- along with interest @ 7.5% per annum from the date of institution of the present petition till realisation of the award and the same should be paid to the appellant by the respondent No. 3 insurance company. MAC APP 487/2004 Page 9 of 9

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