Research › Search › Judgment

Himachal Pradesh High Court · body

2005 DIGILAW 387 (HP)

HARKIRAT KAUR v. H. R. T. C.

2005-10-20

DEEPAK GUPTA

body2005
JUDGEMENT Deepak Gupta, J. This appeal is directed against the award of the learned Motor Accident Claims Tribunal-II, Una (hereafter referred to as the tribunal) in MACP No. 59/93 RBR No 41/94, decided on 7.11.1999. 2. The appeal was initially filed by claimant Sunder Singh Sandu who unfortunately expired during the pendency of the claim petition. His widow, Harkirat Kaur and sons were permitted to be substituted as the legal heirs. However, the rights of the legal representatives in an appeal filed by the injured-claimants are limited and the appeal has to be decided to that limited extent. The H.R.T.C. has also filed cross objections and the delay in filing the cross objections has been condoned vide separate order of the date. The appeal and the cross objections are both being disposed of by this judgment. 3. Before discussing the merits of the case, it would be appropriate to first lay down the principles regarding the rights of the legal representatives in an appeal originally filed by the injured-claimant. 4. Under Common Law, the general rule was that the death of either party extinguished any cause of action in tort by one against the other. The maxim action personalis moritur cum persona, meaning a personal action does with the person was the accepted position in law. However, by the introduction of certain acts the rigours of this maxim have been diluted. In our country the survival and abatement of different causes action is governed by section 306 of the Indian of Succession Act which reads as under:- "306. Demands and rights of action of, or against deceased survive to and against deceased survive to and against executor or administrator.-All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory." 5. It will be seen that even Section 306 does not save an action for personal injuries not causing the death of a party. 6. It will be seen that even Section 306 does not save an action for personal injuries not causing the death of a party. 6. It is well settled law that action in torts for claim of compensation for damages on account of injuries suffered by an injured is a right personal to the injured. This right cannot be continued by the legal heirs or legal representative. It is not doubt true that the legal heirs or the legal representatives an continue the proceedings in so far as they relate to the loss to the estate such as medical expenses, amount spent on treatment etc. However, the claim with regard to pan and suffering, future loss of income and such related matters is action which is personal to the injured alone and cannot be continued after his death unless it is proved that the death is the result of the injuries suffered in the accident. 7. A Division Bench of this Court in Narinder Kaur and others v. State of H.P. through the Secretary (Transport) and others [1991 ACJ 767] held as follows:- "8. We have heard the learned counsel for the parties and gone through the records. The principle of action personalis moritur cum persona relates only to the personal or bodily injuries and not to the loss caused to the estate of the deceased by the tortfeasor. In its applicability, the principle stands considerably modified by the provisions of section 306 of the Indian Succession Act, which clearly lays down that all demands whatsoever and all rights to prosecute or defend any action or special proceedings existing in favour of or against a person at the time of his death survive except causes of action for defamation, assault and other personal injuries not causing death of the party etc. which come to an end with the death of injured. The loss to the estate is thus not covered by the exceptions contained in section 306 of the Indian Succession Act. While taking this view, we are fortified by the decisions of the Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 ACJ 440 (SC) and M.Veerappa V. Evelyn Sequeira, AIR 1988 SC 506. The loss to the estate is thus not covered by the exceptions contained in section 306 of the Indian Succession Act. While taking this view, we are fortified by the decisions of the Supreme Court in Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, 1986 ACJ 440 (SC) and M.Veerappa V. Evelyn Sequeira, AIR 1988 SC 506. The claimants as legal representatives of the original claimant were, as such, entitled to be substituted in his place with a view to continue the proceedings in the case and to have a decision on the claim in respect of the loss caused to the estate of the deceased." 8. In view of the aforesaid settled position of law the appeal can only survive with regard to the loss to the estate. 9. Coming to the merits of the case the relevant facts are that Sunder Singh Sandhu was coming on his scooter bearing No. HIU-1422 from the Railway Station, Una towards Una. In the meantime, bus No. HIH-993 came from Una side and this was going towards Sandhol There was a collision between the two vehicles. The claimant filed a claim petition alleging that he had parked his scooter on seeing the bus and despite this fact the driver of the bus hit the scooter and the accident had occurred due to the rash and negligent driving of the driver of the bus. It was also alleged that due to the accident the claimant had suffered various injuries on all his limbs. Both his legs and arms were fractured and his right leg was amputated from the hip joint. The claimant alleged that he remained admitted in the P.G.I, Chandigarh from 27.5.1993 till 5.7.1993 where three operations were carried upon him Thereafter he needed some treatments which were not available in India and he went to United States of America where further treatment was done. An amount of Rs.1,44,38,940/- was claimed out of which a sum of Rs.48,00,000/- was claimed for expenses stated to have been incurred in the U.S.A. Rs.50,00,000/- were claimed for compensation on account of injuries, Rs.5,00,000/- for pain and suffering, Rs.37,50,000/- for loss of future income etc. 10. The petition was contested by the H.R.T.C. and one of the pleas taken was that the accident had occurred due to the rash and negligent driving of the petitioner himself. 10. The petition was contested by the H.R.T.C. and one of the pleas taken was that the accident had occurred due to the rash and negligent driving of the petitioner himself. According to the H.R.T.C. when the bus reached near junction of the road coming from the Railway Station, the driver of the bus slowed the bus to pick up the passengers standing at the bus stop. It was alleged that the petitioner who was driving his scooter at a high speed and in a rash and negligent manner came and struck against the side of the bus and fell down on the road. 11. The learned tribunal came to the conclusion that the accident had occurred due to the rash and negligent driving of both, the petitioner and the bus driver. The learned tribunal assessed the negligence of the claimant at 75% and that of the bus drive at 25%. With regard to the compensation the learned tribunal held that the claimant was entitled to Rs.50,000/- on account of pain and suffering and loss to amenities Rs.1,00,000/- for medical treatment, conveyance, special diet, transportation expenses, Rs.1,50,000/- for loss of income, Rs.50,000/ for future expenses and Rs.10,000/- for damage to the scooter. The total compensation assessed was Rs.3,60,000/-. Since the petitioner himself was guilty of negligence to the extent of 75%, he was held entitled to only an amount of Rs.90,000/. Aggrieved against this award the claimant filed this appeal in which cross objections have been filed. 12. The first issue to be decided is with regard to the negligence. Admittedly, the deceased was coming from the link road to the main road. The bus was on the main Una-Hamirpur road. There was a T junction. According to the petitioner he was coming from the Railway Station. When he reached the T point he saw that a bus was coming from the Una side. According to him he stopped the scooter on the side of the road so that the bus could cross. He states that the bus was being driven at a very fast speed and the driver came on the wrong side of the road and the front of the bus hit the scooter and dragged him and the scooter. In cross examination he admits that that the FIR has been lodged against him. He states that the bus was being driven at a very fast speed and the driver came on the wrong side of the road and the front of the bus hit the scooter and dragged him and the scooter. In cross examination he admits that that the FIR has been lodged against him. He also admits that he has not made any complaint that the FIR has been wrongly lodged to any official. He admits that two policemen came to record his statement at PGI. He also admits that when his statement was recorded, the same was read over to him and he ha admitted the correctness thereof and then signed the same. He also admits that his statement was recorded under Section 161 Cr. P.C. and in that it is recorded that instead of turning his scooter towards Una he took his scooter straight to cross the road and when the scooter had crossed 10 feet of the road then the bus which was coming from Una side at a high speed hit his scooter. Thereafter he stated that in fact this statement was wrongly recorded by the police. He admits that he has read carbon copy of his statement, Ex. DA. The FIR, Ex.PW-5/A has been got proved by the claimant. In this FIR it is recorded that the scooter came from the Railway Station side at a high speed and hit the back portion of the bus. 13. RW-1 is Om Parkash, who is the driver of the bus. He states that he was driving his bus from Una towards Sandhol. According to him it was the petitioner who came at a high speed and hit the side of the bus. He states that thereafter the injured was taken in a three wheeler to the hospital by him and the passengers. He has denied the suggestion that the scooter was stand still on the link road when the accident occurred. He has denied the suggestion that he was driving the bus at a high speed when the accident occurred. 14. It would be pertinent to mention that Ex. DA is the copy of the statement recorded under Section 161 Cr. P.C. of the petitioner. He has admitted that he has made the statement to the police. He has denied the suggestion that he was driving the bus at a high speed when the accident occurred. 14. It would be pertinent to mention that Ex. DA is the copy of the statement recorded under Section 161 Cr. P.C. of the petitioner. He has admitted that he has made the statement to the police. In this statement it is recorded that he, instead of turning towards Una, took the scooter straight across the road to cross the road and when the scooter had gone about 10 feet then one bus came at a high speed towards from Una side and there was a collision between the two vehicles. 15. The learned tribunal has dealt with the matter in detail. The facts which are absolutely clear are that the claimant was coming from the link road to the intersection of the main road. The Rules of the Road Regulations, 1989 have been framed by the Central Government under Section 118 of the Motor Vehicles Act, 1988. Rules 8 and 9 of the Rules are relevant for the purpose of this case which read as follows: "8. Caution at road junction:- The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction, pedestrian crossing or a road corner, and shall not enter any such intersection, junction or crossing until he has become aware that he may do so without endangering the safety of persons thereon." 9. Giving way to traffic at road junction:- The driver of a motor vehicle shall, on entering a road intersection, at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand." 16. It is clear that any body when approaching a road inter-section, road junction or crossing, should slow down when approaching such inter-section. Rule 9 provides that the driver of a motor vehicle who is not on the main road and is entering the main road must give way to the vehicles proceeding alongwith the main road and in any other case give way to all traffic approaching the inter-section from his right hand side. 17. Mr. Rule 9 provides that the driver of a motor vehicle who is not on the main road and is entering the main road must give way to the vehicles proceeding alongwith the main road and in any other case give way to all traffic approaching the inter-section from his right hand side. 17. Mr. Rahul Mahajan, learned counsel for the claimants, has relied upon the judgment of Apex Court in Saria Dixit (Smt.) and another Vs. Balwant Yadav and others 1996(3) SCC 179. In my view the judgment in this case is not applicable since in that case the facts are totally different and it stood proved that both the vehicles were on the main road and the scooter had traveled % way across the width of the main road. In the present case the scooter according to the claimant was stand still. Reliance has also been placed on a judgment of Bombay High Court reported in Malan Hanumant Mehar and another Vs. Balkrishna Vishnu Jadhav and another 1985 ACJ 141. In fact this judgment does not support the claimant since in that case when the scooter which had come from the side road to the main road had virtually crossed the entire main road when the bus came and hit the scooter. These are not the facts of the present case. In this case the scooter came from the link road and it was the scooter which dashed into the side of the bus. It is not front of the bus which hit the scooter, but the scooter which hit the side of the bus. However, it is also a duty of the driver on the main road to slow down when he is approaching any junction. Therefore, the finding of the learned tribunal holding the petitioner negligent to the extent of 75% and the bus driver negligent to the extent of 25% is correct and is accordingly upheld. 18. Next comes the question with regard to the assessment of compensation. In view of the rights of the legal heirs discussed hereinabove, the claimants are not entitled to claim any extra amount for pain and suffering, loss of future income and future expenses since these were rights personally to the deceased. There is no dispute with regard to the damage with regard to the scooter. The main dispute is with regard to the scooter. There is no dispute with regard to the damage with regard to the scooter. The main dispute is with regard to the scooter. The main dispute is with regard to the expenses on the medical treatment on the claimant. The claimants who are the heirs can definitely claim the expenses for medical treatment since that is the loss to the estate. 19. Mr. Rahul Mahajan, learned counsel for the claimants, submitted that the amount assessed for medical treatment, conveyance and expenses is ridiculously low and he states that the learned tribunal has not taken into consideration the various documents placed on record, especially with regard to the treatment in the United States. On the other hand Mr. Ashok Sharma, learned counsel for the H.R.T.C. has contended that the amount awarded is more than reasonable. He also submits that there is no proof about the amount spent in the United States and the mere production of documents is not sufficient to show that this amount was actually spent. He also submits that the petitioner was already 70 years old when the accident took place and that his entire medical expenses in India have been reimbursed as he was a retired government official. 20. The claimant has admitted that as far as expenses in India other than the expenses on attendant charges and transportation and expenses on special diet etc. have been reimbursed. The documents which have been placed on record show that the claimant remained admitted in hospital at P.G.I, Chandigarh from 27.5.1993 to 5.7.1993. He has suffered very serious injuries and his leg was finally amputated. In his statement the petitioner has stated that his sons who are settled in the U.S.A. came to look after him and since they could not indefinitely stay in India, they took him to America where he was got treated. In this behalf he has placed on record photo copies of the plane tickets of his son and also the photo copy of his own plane ticket which was exhibited as Ex. P-8 to P-11. These tickets are issued on 18th August, 1993 and are for travel on 25th September, 1993. The return ticket of the petitioner is for Rs.27,240/-. The return ticket of the son is for 1340 U.S. dollar. Admittedly, the value of a dollar at the relevant time was Rs.31.22. P-8 to P-11. These tickets are issued on 18th August, 1993 and are for travel on 25th September, 1993. The return ticket of the petitioner is for Rs.27,240/-. The return ticket of the son is for 1340 U.S. dollar. Admittedly, the value of a dollar at the relevant time was Rs.31.22. Therefore, the value of the ticket of the son comes to Rs.41,834.80. Therefore the amount spent on air travel comes to Rs.69,074/-. 21. Ex.P-16 is the copy of a bill for 6.072.94 U.S. dollars issued by the Divine Providence Hospital with respect to the treatment of the petitioner where he remained admitted from 13.10.1993 to 15.10.1993. Another bill Ex.P-17 for a sum of 3,629 dollars is with regard to the doctors expenses for the treatment of the petitioner. The claimant was again admitted in Divine Providence Hospital from 22.12.1993 to 28.12.1993 and a sum of 1032.37 dollars were spent on his treatment. He was again admitted to the hospital on 2nd March, 1994 and a sum of 14.656.72 dollars were spent on his treatment vide Ex.P-31. There is another bill for a wheel chair for 270 dollars, Ex.P-37. There is another bill for 30 dollars. The total bills which have been proved on record work out to 34,691.30 dollars. Applying the exchange rate of Rs.31.22 the amount spent comes to Rs.10,83 053.95. Keeping in view the nature of the treatment and some bills which may not have been retained, the same is rounded off to Rs.11,00,000/-. In addition thereto, as already held above, the claimants spent Rs.69,074/- on their air expenses which is rounded off to Rs.70,000. The claimants on account of expenses on treatment and travel are held entitled to Rs.11,70,000/-. The learned tribunal has already awarded a sum of Rs.50,000/- for pain and suffering, Rs.1,50,000/- for loss of income, Rs.50,000/-for future expenses including expenses on attendant and Rs.10,000/- for damages to the scooter. The total compensation, therefore, works out to Rs.14,30,000/-. Since the claimant was guilty to the extent of 75%, the amount due to the appellants works out to Rs.3,55,000/-. 22. The appeal is accordingly allowed. The cross objections are dismissed. The award of the learned tribunal is modified and the compensation payable to the appellants is enhanced from Rs. 90,000/- to Rs.3,55,000/-. Since the claimant was guilty to the extent of 75%, the amount due to the appellants works out to Rs.3,55,000/-. 22. The appeal is accordingly allowed. The cross objections are dismissed. The award of the learned tribunal is modified and the compensation payable to the appellants is enhanced from Rs. 90,000/- to Rs.3,55,000/-. The appellants are also held entitled to interest at the rate of 9% per annum w. e. f. 26.11.1993 till payment/deposit of the amount. The amount is apportioned as follows:- 1. Smt. Harpreet Kaur, widow = 2,55,000/- 2. Gurparkash Singh, son = 50,000 3. Gurpartap Singh, son = 50,000/ 23. The H.R.T.C. is directed to deposit the enhanced amount in the Registry of this court within 12 weeks from today failing which it will be liable to pay interest at the rate of 12% per annum w. e. f. today. No Costs.