ADARSH PAL SINGH v. DIDAR SINGH. — 1995 DIGILAW 585 (DEL)

C. M. Nayar ( 1 ) THE present judgment will dispose of two Appeals FAO No 16. 3 92 filed by the claimant tor enhancement against the award dated 28th January. 1982 passed by Shri P. R thakurjudge motor accident claims tribunal Delhi and FAO No 130 82 filed by New India Assurance Company Ltd. impugning the finding of the Tribunal that the Insurance Company will be liable for the entire amount of the Award. The appellant. Adarsh Pal Singh. was a pillion rider of two-wheeler scooter no. DHN3811 driven by one Satish Chander on 27th August. 1977 near the turning of Joshi Road and New Rohtak Road. The truck bearing registration no. MTT 3023 coming from Joshi Road side suddenly took a turn towards right side without giving any horn or indication and struck against the scooter and as a result of the said impact the scooterist and the appellant who was the pillion rider were thrown from the scooter while the scooter came under the truck. It got entangled with the truck which did not make it possible for the truck driver to run away with the truck. The said vehicle belonged to respondent no. 2 and was being driven by respondent no. 1. It was insured with M/s New India Assurance Co. Limited, New Delhi. The criminal case was registered at police station against the truck driver. The appellant was aged about 32 years at the time of accident and married with two children. He was doing business in partnership with his father and prior to the accident, he was looking after the business and was responsible for the working of the said partnership. The accident caused loss to the appellant because he could not attend to his business and greatly disturbed his marital life as well. The claim petition was filed under Section 110-A of the Motor Vehicles Act, 1939 for compensation of Rs. 2 lakhs. The respondents contested the petition. The written statements filed on their behalf were identical. It was alleged that the appellant had voluntarily suffered the injuries due to his own negligence and misconduct and due to rash and negligent driving of the driver, Satish Chander. The ownership of the vehicle, the name of the driver and the insurance company were admitted by the respondents. The written statements filed on their behalf were identical. It was alleged that the appellant had voluntarily suffered the injuries due to his own negligence and misconduct and due to rash and negligent driving of the driver, Satish Chander. The ownership of the vehicle, the name of the driver and the insurance company were admitted by the respondents. It was reiterated that the scooter was driven at a very fast speed without following the traffic rules and both the driver and the appellant were in a state of alcholic intoxication. It was further alleged that the scooter skidded as a result of negligent and rash driving and both the driver as well as the pillion rider were thrown off the scooter before it hit the truck ^ which had already come to halt and was stationary when the scooter collided with the same. The following issues were framed:- 1. Whether the accident was caused due to rash and negligent driving of truck No. MTT 3023 on the part of respondent no. 1? 2. Whether the accident was caused due to negligence of petitioner himself? 3. To what amount of compensation, if any. is the petitioner entitled and if so from whom? 4. Relief. The Tribunal considered the evidence on record. The appellant in his statement deposed that he was sitting on the pillion seat of the scooter which was being driven by Satish Chander According to him. the scooter was at a slow speed and had taken a turn towards Joshi Road on the left side when the truck in question coming, from the opposite direction, came to the wrong side and hit against the scooter. He deposed that the truck was being driven at a fast speed and no horn or signal had been given by the driver. He further stated that he was thrown away as a result of the impact and became unconscious. He denied the suggestion that at the time of the accident he was intoxicated or that the scooter had skidded when the brakes were applied or that the scooter had hit against the stationary truck. To similar effect the statement of the scooter driver PW 3 Satish Chander was made. PW 5 Hans Raj, S. I was the Investigating Officer in the criminal case and he proved a copy of the site plan as Exhibit PW 5/1. The statement of respondent no. To similar effect the statement of the scooter driver PW 3 Satish Chander was made. PW 5 Hans Raj, S. I was the Investigating Officer in the criminal case and he proved a copy of the site plan as Exhibit PW 5/1. The statement of respondent no. 1 was recorded and he deposed that the scooter was coming at a high speed and on seeing the scooter he applied the brakes. The driver of the scooter got nervous and lost control of the scooter and as a result fell down and the scooter came under the truck which was stationary at that time. In his cross-examination, this witness admitted that he had made a confessional statement before the criminal court and copy of the said statement was proved as Exhibit RW 1/1. On the face of the admission of respondent driver that he voluntarily made the confessional statement in the criminal court, the negligence on the part of the truck driver was clearly established. Therefore, the said driver had also been convicted on his plea of guilty. The Tribunal accordingly held that there was no doubt that the accident in question had been caused due to rash and negligent driving on the part of respondent no. 1 This issue does not require any modification on the basis of the evidence which has been recorded in the case. ( 2 ) THE Tribunal next discussed the injuries suffered by the appellant and their nature and the period of hospitalisation and treatment. PW1 Dr. A. K. Singh who had also appeared as PW 7 treated the appellant in the Irwin Hospital where he was admitted on 27th August, 1977. According to him, the appellant had suffered severe crushed injury of the right elbow with badly comminuted fractures of the humeral condyle, fracture of the third, fourth and fifth ribs of the left side and fracture of the right tibia. He deposed that the injuries had resulted into fixed deformity of the right elbow which was handicapped, having no movement. The movement of the right elbow was completely restricted and nothing was feasible so far as its cure was concerned PW2dr, Amit Banerjee from GB Pant Hospital deposed that the patient had been transferred to the department of Cardiothoracic Surgery in the hospitsal on 31 st August. 1977. The movement of the right elbow was completely restricted and nothing was feasible so far as its cure was concerned PW2dr, Amit Banerjee from GB Pant Hospital deposed that the patient had been transferred to the department of Cardiothoracic Surgery in the hospitsal on 31 st August. 1977. He further deposed that the patinet had been admitted in the hospital on that date and discharged only on 19th September. 1977. PW 6 is appellant himself who stated that he remained admitted for 4 days in the Irwin. hospital for 19 days in GB Pant Hospital and in the Tirath Ram hospital for 3 days. According to him his right elbow had been crushed and consequently. there was shortening of arm and was permanently disabled. He had been examined by a Board of Orthopaedic Surgeons under the orders of the Tribunal on 27th February. 1981 The certificate issued by the Board gave the opinion of the two experts that the appellant has a stiff right elbow following an injury to the elbow, there is a total loss of movement in the elbow which is fixed at about 150 , that as a result of this deformity, the appellant has considerable loss of function in activities of daily living and the percentage of his disabilty is above 50%. Dr. A. K. Singh who appeared as PW 7 made similar statement. The appellant further stated that he remained bed ridden for 9 months. The various documents regarding purchase of medicines indicated that he continued to purchase the medicines till the beginning of the year 1978 The Tribunal proceeded to determine the amount of compensation in the light of the injuries received by the appellant including the amount payable as general damages The following conclusions as arrived at by the Tribunal may be reproduced as follows:- "as regards the period of hospitalisation and treatment, in addition to 26 days of hospitalisation detailed by the petitioner in his statement, the petitioner, according to his statement, remained bed-ridden for 9 months. The various documents regarding purchase of medicines etc. Ex PW 2/9 to Ex. PW 6/14 shows that the petitioner continue to purchase the medicines till the beginning of the year 1978. The petitioner also had been getting X-rays done till about April. 1978 as it is clear from the documents Ex. PW6/2 to Ex. PW6/8. The various documents regarding purchase of medicines etc. Ex PW 2/9 to Ex. PW 6/14 shows that the petitioner continue to purchase the medicines till the beginning of the year 1978. The petitioner also had been getting X-rays done till about April. 1978 as it is clear from the documents Ex. PW6/2 to Ex. PW6/8. In the light of these facts, it may now be determined as to what amount of compensation should be awarded to the petitioner as general damages. Keeping in view the fact that it is the right hand of the petitioner which has been completely disabled, it is not difficult to visualise the difficulties which the petitioner must be suffering in his day to day life. There can be no two opinions about the fact that no amount of money can bring back the meaning of life to the petitioner and compensate the suffering which he has undergone and the pitiable condition to which he has been rendered by the accident In fact, he is completely crippled and paralysed so far as his right hand is concerned. And this crippled life he has now to bear with all through his life. He has been denied the pursuit of normal avocations and pleasures of life. One thing which is important to note in this connection is that there is no cure in India of the disablement which the petitioner suffered due to the instant accident. The petitioner in fact wanted to go abroad for medical treatment. which entailed medical expenses of about 2000 pounds and this. tact is clear from the form EX. PW 6/15 signed by the two expert doctors for enabling the petitioner to seek the foreign exchange for his medical treatment abroad This shows that further treatment of the injury suffered hy the petitioner was not possible in India ( 3 ) ON the basis ot the above facts the following award was made under the respective heads in favour of the appellant- ( 4 ) THE learned counsel for the appellant-claimant has vehemently contended that the appellant suffered grave injuries which required long periods of hospitalisation as well as permanent disability and the amount awarded by the Tribunal is neither just and fair nor adequate. In the facts of the present case as indicated above the award, therefore, requires to be enhanced as it does not take into account the nature of injuries and the pain suffered by the appellant as well as permanent disability which is to the extent of 50%. The award for pecuniary as well as non pecuniary damages including general damages is grossly inadequate. The learned counsel has referred to the judgments as reported in Tejinder Singh Gujral Vs. Inderjit Singh and Ors. 1988 ACJ 407 . Mangal Kishore Kaul vs. Union of India and Ors. 1989 ACJ 786, Amar Nath Goel vs. Mayur Syntax Ltd. 1990 ACJ 93 . and Ramesh Chanctra vs. Randhir Singh and Ors. 1990 ACJ 777 In Tejinder Singh Gujral v. Inderjit Singh and others (supra), the injuries were caused to a lawyer who suffered great incapacity in his professional performance due to subsisting pain resulting in loss of income and was unable to pick up weight or drive. The compensation in the facts of that case was enhanced for mental agony, shock, pain and suffering from Rs. 50. 000. 00 to. Rs. one lakh and the learned Judge clearly was of the opinion that the award has to, depend on the nature of the injuries caused, subsisting agony, shock, pain and suffering and its duration. This court in Amar Nath Goel v. Mayur Syntax Ltd. (supra) considered the aspect of damages on account of physical pain and suffering, loss of future earning as well as general dammages The following paragraphs may be of some interest 37. The determination of amount of general damages is mostly a difficult question. The sum to be awarded is always dependent upon all the detailed circumstances of the case. "no one knows what is the right sum of damages in any particular case and no two cases are alike. " (Singleton, L. J. in Waldon v. War Office, 1956 (1) WLR 51 ). 38. What amount should I award to the plaintiff on account of physical pain and mental anguish and future loss of earning? Before determining the amount let me summarise the findings which emerge from the aforesaid discussion and analysis of evidence. (1) The plaintiff was employed with defendant on a salary of Rs. 3000. 00 p. m. at the time of accident. (2) The accident was not because of any act of God. Before determining the amount let me summarise the findings which emerge from the aforesaid discussion and analysis of evidence. (1) The plaintiff was employed with defendant on a salary of Rs. 3000. 00 p. m. at the time of accident. (2) The accident was not because of any act of God. (3) Defendant had not exercised due care and attention in constructing collapsed portion of the building. (4) Plaintiff sustained grave and serious injuries as a result of the collapse of the wall of the building. (5) Plaintiff is permanently disabled. (6) Plaintiff suffered physical pain and mental anguish as a result of the injuries. (7) There has been loss of future earnings of the plaintiff. 39. Money cannot renew a shattered human frame still the law has said that this is a head of damages for which monetary compensation can be awarded and court must do the best it can and award what is fair and reasonable compensation. Future loss cannot be easily calculated because of many imponderables which enter into the assessment. The court must estimate the period of future disability and plaintiff s probable future rate of earning by arriving at a lump sum and this must then be discounted to allow for the fact that he receives a lump sum forthwith in spite of payments spread over a period of time and for normal vicissitudes of life and contingencies such as the possibility that his working life might have been curtailed later by some happenings It is not possible to calculate the pecuniary loss to a high degree of exactness and damages for future loss of earning have often been awarded in one lump sum together with damages for mental pain and suffering. I will conclude by what Diplock. L. J. has said about the standard which the law applies on award of damages, namely, "if it is not wholly instinctive and incommunicable, is based, apart from pain and suffering, upon the degree of deprivation, that is the extent to which the victim is unable to do those things which, but for the injury, he would have been able to do. " (Fletcher v. Autocar and Transporters Ltd. . 1969 ACJ 99 (CA. England.)" ( 5 ) THE Supreme Court in Ramesh Chandrav. " (Fletcher v. Autocar and Transporters Ltd. . 1969 ACJ 99 (CA. England.)" ( 5 ) THE Supreme Court in Ramesh Chandrav. Randhirsingh (supra) reviewed the concept of general damages which will be covered by pain, suffering and loss of enjoyment of life as well as compensation to be granted for loss of earnings which were held to be two distinct heads. Paragraph 7 of this judgment reads as follows:- ( 6 ) WITH regard to ground no. XIX covering the question that the sum awarded for pain. suffering and loss of enjoyment of life etc. termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis. The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo. If money be any solace, the grant of Rs. 20,000. 00 to the claimant represents that solace. Money solace is the answer discovered by the law of Torts. No substitute has yet been found to replace the element of money. This, on the face of it. appeals to us as a distinct head. quite apart from the inability to earn livelihood on the basis of incapacity or disability which is quite different. The incapacity or disability to earn a livelihood would have to be viewed not only in present but in future on reasonable expectancies and taking into account deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grant of compensation under the head of pain, suffering and loss of enjoyment of life. One head relates to the impairment of a perons s capacity to earn. the other relates to the pain and suffering and loss of enjoyment of life by the person himself. . . . . " ( 7 ) THE appellant at the time of accident was 32 years of age. He suffered serious injuries for which he was hospitalised for about 27 days. He suffered permanent disability which is indicated from the reading of the award. The certificate by a Board of of Orthopaedic Surgeons appointed under the orders of the Tribunal on 27th February. He suffered serious injuries for which he was hospitalised for about 27 days. He suffered permanent disability which is indicated from the reading of the award. The certificate by a Board of of Orthopaedic Surgeons appointed under the orders of the Tribunal on 27th February. 1981 gave the opinion of the two experts that the appellant has a stiff right elbow, there is a tolai loss of movement in the elbow which is fixed at about 150 . that as a result of this deformity. the appellant has considerable loss of function in activities of daily living and the percentage of his disabilty is above 50% He was in business along with his father and making reasonable progress. The Tribunal awarded only a sum of Rs 30. 000 -. on account of injuries and permanent disability suftered by the appellant. The sum of Rs. 10,000- was grated for pain and suftering The amounts accordingly under these two heads require to be enhanced in view of the facts and circumstances of the present case. The amount for special diet and medicines were allowed only to the extent of Rs. 4000. 00 and Rs. 1500. 00 respectively as against the claim ofrs. 20. 000. 00each. These are inadequate in view of the nature of injuries and disablement. There is no mathematical formula to consider damages in such cases. The court must ensure that fair. Just and reasonable amount is awarded for damages in respect of mental and physical shock, pain suffering already suffered or likely to be suffered in future as well as compensation for loss of amenities of life as in the present case. The appellant is not able to act like a normal person in view of the permanent disability inflicted upon him. Therefore, the amount has to be awarded for inconvenience, discomfort and disappointment, frustration and mental stress in life which will cover non-pecuniary, damages which are not capable of being assessed by arithmetical calculations. The award for pecuniary damages * covered under the other heads such as loss of earnings in business, engagement of Attendant and Driver are based on appreciation of evidence and there is no infirmity in the same which calls for any interference in the present appeal. The award for pecuniary damages * covered under the other heads such as loss of earnings in business, engagement of Attendant and Driver are based on appreciation of evidence and there is no infirmity in the same which calls for any interference in the present appeal. ( 8 ) THE following compensation under the respective heads is payable to the appellant on the basis of the principles as cited above and taking into account the facts and circumstances relating to the injuries as well as on the basis of permanent disability suffered by the appellant. ( 9 ) I accordingly assess the total amount of damages to the appellant/claimant at Rs. 1. 31. 000. 00 ( 10 ) THE next appeal. FAO 130/82. has been filed by the insurance company to challenge the finding that the liability of the insurance copany is limited only to the extent of Rs 50. 000. 00. The Tribunal has considered the policy on record. Ex RW2/ 1 and recorded a finding that the appellant insurance company will be liable to pay the entire awarded amount. The contention with regard to the limited liability was accoredingly rejected. The learned counsel for the appellant in this appeal has contended that the policy though may be comprehensive does not contain a specific agreement that the additional risk is covered. Therefore on the basis of the law laid down by the Supreme Court as reported in National Insurance Co. Ltd. v. Jugal Kishore and others 1988 ACJ 270 as well as in New India Assurance Co. Ltd. Vs. Shanti Bai (Smt.) and Ors. 1995 (2) SCC 539 "that a comprehensive insurance and payment of higher premium on this score, however, do not mean that the limit of liability with regard to third party right becomes unlimited or higher than the liability fixed under sub section 2 of Section 95 of the Act. For this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf. " Similar reference was made to the Judgment of the Supreme Court in New India Assurance Co. Ltd. Vs. Ram Lal and others 1988 ACJ 754. I have perused the copy of the policy marked Ex. RVV 2/1. " Similar reference was made to the Judgment of the Supreme Court in New India Assurance Co. Ltd. Vs. Ram Lal and others 1988 ACJ 754. I have perused the copy of the policy marked Ex. RVV 2/1. The same is neither the original policy nor carbon copy of the same. This policy was for a period from 3rd December, 1976 to 2nd December. 1977. The endorsements attached to the policy are in blank and do not indicate any policy number whatsoever. The insurance company has not been able to explain as to why the carbon copy of the policy, if the original had not been summoned, was not produced. In this background it cannot be said that the policy as produced by the company was duly proved. ( 11 ) FOR the aforesaid reasons FAO 168/82 is allowed to the extent indicated above and FAO 130/82 filed by the Insurance Company is dismissed. The appellant claimant shall also be entitled to interest @ 15% p. a. from the date of petition till realisation. The amount which has already been paid shall be taken into account while working out the amount now held payable. The appellant in FAO No. 168/82 shall be entitled to costs which are quantified at Rs. 2,500. 00.