S.B. CIVIL MISC. APPEAL NO.1202/2004 SMT. DURGA DEVI v. SHANKAR LAL DATE OF ORDER :- MAY 13 & Ors.

- MAY 13, 2008 HON'BLE MR. JUSTICE GUMAN SINGH Shri Ram Singh Rathore, for the appellant. Shri Ashok Mehta, for United India Insurance company Ltd.

The case has come up for admission. Both the parties agree to dispose of the case at admission stage.

Heard learned counsel for the parties and perused the entire record of the miscellaneous appeal.

This civil misc. appeal under Section 173 of the Motor Vehicles Act,

1988 , has been filed by injured Smt. Durga Devi W/o Ramjilal aged about 20 years at the time of accident, for enhancement of claim against the award dated April 6, 2004, of the learned Moto Accident Claims Tribunal, Jaipur in Claim Petition No.1191/98, whereby a sum of Rs.2,25,000 has been awarded as compensation to the claimant-appellant.

Learned counsel for the claimant appellant submitted that at the time of accident, the injured was 20 years of age 2 and on account of the accident her right leg was amputated above the knee joint and she was found to have sustained 60% permanent disability. Learned counsel further submits that the lady was engaged as Beldar or on daily wage basis. She was married and she had to support her family out of her earnings. Learned counsel submits that on account of amputation of right leg, she has been rendered without any work as she is not fit to carry on the manual work and that amounts total disability within the provisions of section 2(1)(l) of the Work-men Compensation Act, 1923. Learned counsel submits that the learned Tribunal has failed to award adequate compensation for loss of earning and even if a minimum wage of Rs.60/- per day is taken into account by way of daily earning, the amount comes to Rs.3,67,200/- on applying multiplier of 17 of the Second Schedule. Learned counsel for the appellant/claimant further submits that the learned Tribunal has erred in awarding the compensation without considering the various factors based on concept of pecuniary and non- pecuniary damages as delineated by the 3 Hon'ble Supreme Court in R.D. Hattangadi v/s Pest Control (India) Pvt. Ltd. and others (1995 ACJ 366.

Per contra, learned counsel for the Insurance Company, supported the award of the learned Tribunal on the ground that the finding of the learned Tribunal is correct and based on evidence and the record and as such this is not a case for interference by this Court. He further submits that for determination of the loss of earning, the percentage of disability should be taken into account and the concept of total disability should not be imported in the facts of the case.

In view of the rival submissions, it may be noted that the learned Tribunal has failed to consider the pecuniary and non-pecuniary loss suffered by the claimant as observed by the Hon'ble Supreme Court in R.D. Hattangadi's case (supra), as under :-

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 4 damages assessed in terms of money; whereas non-pecuniary damages are those which are incapable of 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 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.

On application of the aforesaid guidelines in the facts and circumstances of the present case, it is revealed that the injured was of 20 years age at the time of accident. She was a labourer (beldar) and was earning Rs.60/- per day and had to carry on with the permanent disability for the whole life and was rendered handicapped in selection of her 5 future occupation and difficulty to do any standing work and that she had to come across discomfort, disappointment, frustration and mental stress in her day to day life and even in discharging her normal social obligations. Therefore, in view of all these factors, the amount of compensation awarded deserves to be enhanced Rs.2,25,000/- Rs.3,67,200/- from the date of filing of appeal i.e. 6.7.2004.

Accordingly, while maintaining the terms of award upto the date of filing appeal, the amount of the award is enhanced to Rs.3,67,200/- with interest @ 6% p.a. from the date of appeal with the condition that failure to make payment under the award within a period of three months from this order shall entail interest @ 9% p.a. from the date of appeal i.e. 6.7.2004..