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Himachal Pradesh High Court · body

2015 DIGILAW 436 (HP)

Pooja Devi v. General Manager, Punjab Roadways

2015-05-01

MANSOOR AHMAD MIR

body2015
Judgment Mansoor Ahmad Mir, J. Despite service, there is no representation on behalf of respondent No. 1, hence he is set ex-parte. 2. By the medium of this appeal, the appellant has challenged the award, dated 14th August, 2007, made by the Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, (hereinafter referred to as ‘the Tribunal’) in MAC Petition No. 91 of 2004, titled Pooja Devi versus the General Manager, Punjab Roadways, Ropar & others, whereby compensation to the tune of Rs.2,09,400/- with interest @ 7.5% per annum from the date of filing of the claim petition till its realization, was awarded in her favour and against the respondents (hereinafter referred to as the “impugned award”). 3. Before I deal with the facts of the case and the findings recorded in the impugned award by the Tribunal, I deem it proper to record herein that the Tribunal has dealt with the claim petition casually and has not reached to the claimant-injured. 4. The appellant-claimant-injured being victim of the motor vehicular accident, which was caused on 25th May, 2004, at about 1.45 p.m., on National High Way No. 21, at Chehri near Chharol, District Bilaspur, by the contributory negligence of Gurnam Singh, driver of bus bearing registration No. PB-12-C-9004 and Rakesh Kumar, driver of tempo Tata Pick Up 207 bearing registration No. HP-20-C-0266, while driving the said vehicles, rashly and negligently, had invoked the jurisdiction of the Tribunal in terms of the mandate of Section 166 of the Motor Vehicles Act, 1988, (for short “the Act”), for grant of compensation to the tune of Rs.15,00,000/-, as per the break-ups given in the claim petition. 5. It is averred in the claim petition that the claimant had boarded the offending bus, sustained injuries in the accident, was taken to P.G.I., Chandigarh, where she remained admitted from 25.05.2004 to 31.05.2004, which resulted in amputation of her right arm, above elbow. Thereafter, she was taken for treatment to Anandpur Civil Hospital, where she remained admitted from 31.05.2004 to 16.06.2004. 6. FIR No. 77/2004, dated 25.05.2004, under Sections 279, 337, 201 of the Indian Penal Code and 184 & 187 of the Motor Vehicles Act, was lodged in Police Station Sadar, District Bilaspur. Thereafter, she was taken for treatment to Anandpur Civil Hospital, where she remained admitted from 31.05.2004 to 16.06.2004. 6. FIR No. 77/2004, dated 25.05.2004, under Sections 279, 337, 201 of the Indian Penal Code and 184 & 187 of the Motor Vehicles Act, was lodged in Police Station Sadar, District Bilaspur. Investigation was conducted and challan was presented against both the drivers under Sections 279, 337 & 338 of the Indian Penal Code before the Chief Judicial Magistrate, Bilaspur, H.P. The claimant, who was 13 years of age and a student of sixth class at the time of accident, has suffered 80% disability, which has shattered her physical frame and has made her permanently disabled. 7. The respondents contested the claim petition on the grounds taken in their memo of objections. 8. Following issues came to be framed by the Tribunal on 11.07.2005 “1. Whether the petitioner has sustained injuries in the accident which took place due to the rash and negligent driving of bus No. PB-12-C-9004 by respondent No. 2 and driver of tempo Pick 207 No. HP-20-C-0266, respondent No. 5? …..OPP 2. If issue No. 1 supra is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from which of the respondents? …OPP 3. Whether the driver of the offending vehicle i.e. respondent No. 5 was not having a valid and effective driving license at the time of the accident, if so, its effect? …OPR-6 4. Relief.” 9. The claimant examined Ramesh Chand (PW- 1), Chaman Lal (PW-2) and Dr. Navtej Pal (PW-3). Driver of bus Gurnam Singh appeared in witness box as RW-1 and Driver of Tempo Pick Up Rakesh Kumar appeared in the witness box as RW-2. The insurer of the tempo i.e. respondent No. 5 and the owner of the bus, i.e. respondent No. 1 have not led any evidence. 10. The Tribunal dealt with the claim petition casually and awarded compensation to the tune of Rs.2,09,400/- with interest @ 7.5% per annum to the claimant from the date of the claim petition till its realization, which is too meager. 11. All the witnesses have stated that both the drivers have driven the offending vehicles rashly and negligently, caused the accident in which the claimant suffered injuries, which has remained unrebutted. 12. 11. All the witnesses have stated that both the drivers have driven the offending vehicles rashly and negligently, caused the accident in which the claimant suffered injuries, which has remained unrebutted. 12. The Tribunal has come to the conclusion that the claimant-injured was traveling in the offending bus, the accident was outcome of the rash and negligent driving of both the drivers and the claimant was also negligent. The Tribunal has held that 60% of the compensation was to be satisfied by the insurer of the tempo and 30% of the same was to be satisfied by the owner and driver of the offending bus, i.e. the General Manager, Punjab Roadway and Gurnam Singh, respectively, jointly and severally. 13. The drivers, the owners of the offending vehicles and the insurer of the tempo have not questioned the impugned award. Thus, it has attained finality, so far as it relates to them. 14. Keeping in view the averments contained in the claim petition read with the reply filed by the respondents and the evidence on record, I deem it proper to hold that the claimant was not negligent in any way and the driver of the tempo was negligent to the extent of 60% and the driver of the bus was negligent to the extent of 40%. 15. Having said so, the claimant has proved that both the drivers had driven the offending vehicles rashly and negligently. The insurer of the offending vehicletempo is saddled with the liability to the extent of 60% and the owner of the bus, i.e. respondent No. 1 is saddled with the liability to the extent of 40%. Accordingly, the findings returned by the Tribunal on issue No. 1 are modified. 16. Before I deal with Issue No. 2, I deem it proper to deal with issue No. 3. 17. It was for the insurer of the tempo-New India Assurance Company to lead evidence, but it has failed to discharge the onus. At the cost of repetition, it has not questioned the impugned award. Thus, the findings returned by the Tribunal on issue No. 3 are also upheld. 18. The findings returned by the Tribunal on Issue No. 2 are trash and unreasonable for the following reasons. 19. Admittedly, the appellant-claimant-injured was admitted in the hospital for about one month i.e. w.e.f. 25th May, 2004 to 16th June, 2004. 20. Thus, the findings returned by the Tribunal on issue No. 3 are also upheld. 18. The findings returned by the Tribunal on Issue No. 2 are trash and unreasonable for the following reasons. 19. Admittedly, the appellant-claimant-injured was admitted in the hospital for about one month i.e. w.e.f. 25th May, 2004 to 16th June, 2004. 20. The Tribunal has awarded a meager amount while ignoring the facts that the claimant has suffered too much, was not in a position to move, was bed ridden, had undergone pain and sufferings and has to undergo pain and sufferings forever and has lost marriage prospects. The accident has shattered her physical frame and she has become dependant. 21. The Tribunal has not assessed the just compensation. It had to take into consideration the physical frame of the injured-claimant, marriage prospects, amenities of life, future income, pain and sufferings and other prospects. 22. The question is - how to grant compensation in such injury cases? The concept of granting compensation is outcome of Law of Torts. The Tribunal, while considering the case for grant of compensation, has to do some guess work. 23. The Apex Court in case titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755 , had discussed all aspects and laid down guidelines how a guess work is to be done and how compensation is to be awarded under various heads. It is apt to reproduce paras 9 to 14 of the judgment hereinbelow: “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 is 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. 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 non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain 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. 10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. 11. In the case Ward v. James, 1965 (1) All ER 563, it was said: "Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best they can and give him what they think is fair. No wonder they find it well-nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money." 12. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. 13. This Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376 , in connection with the Fatal Accidents Act has observed (at p. 380): "In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable." 14. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said :- "Non-pecuniary loss : the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases." 24. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases." 24. The said judgment was also discussed by the Apex Court in case titled as Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, reported in 2010 AIR SCW 6085, while granting compensation in such a case. It is apt to reproduce para-7 of the judgment hereinbelow: “7. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases - and that is now recognized mode as to the proper measure of compensation - is taking an appropriate multiplier of an appropriate multiplicand.” 25. The Apex Court in case titled as Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011 AIR SCW 4787 also laid down guidelines for granting compensation. It is apt to reproduce paras 8 & 9 of the judgment hereinbelow: “8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. It is apt to reproduce paras 8 & 9 of the judgment hereinbelow: “8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper. 9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.” 26. The Apex Court in case titled as Kavita versus Deepak and others, reported in 2012 AIR SCW 4771 also discussed the entire law and laid down the guidelines how to grant compensation. It is apt to reproduce paras 16 & 18 of the judgment hereinbelow: “16. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , this Court considered large number of precedents and laid down the following propositions: “The provision of the motor Vehicles Act, 1988 ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: “Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. v) (Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.” 17. …………………………. 18. …………………………. 18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.” 27. The Tribunal has awarded Rs.1,08,000/- to the claimant under the head ‘loss of future income’, which is too meager. 28. Admittedly, the claimant was 13 years of age at the time of accident. After a lapse of about five years, she would have become an earning hand. By a guess work, even a house wife is earning more than Rs.6,000/- per month by making contribution towards her family by maintaining the household works and other marital and family matters. But the claimant is not in a position to render any service towards her family and has become dependant. If we take her as a labourer or housewife, she would have been earning not less than Rs.6,000/- per month. Keeping in view the percentage of the disability, it can safely be held that the claimant has lost source of income to the tune of Rs.4,000/- per month. Thus, she is deprived of the earning capacity to the tune of Rs.4,000/- per month. The multiplier applied by the Tribunal is just and appropriate. Accordingly, the claimant is held entitled to the sum of Rs. 4,000/- x 12 = Rs.48,000 x 15 = Rs.7,20,000/- (rupees seven lacs twenty thousands only) under the head ‘loss of earning’. 29. Admittedly, the claimant had spent a lot of money on her treatment and has to go for treatment in future also. The Tribunal has only awarded the amount of Rs.9,400/- under the head ‘expenditure on medicines’. The Tribunal has lost sight of the very important fact that the claimant has to undergo treatment in future also. 29. Admittedly, the claimant had spent a lot of money on her treatment and has to go for treatment in future also. The Tribunal has only awarded the amount of Rs.9,400/- under the head ‘expenditure on medicines’. The Tribunal has lost sight of the very important fact that the claimant has to undergo treatment in future also. Accordingly, the compensation amount to the tune of Rs.9,400/- (rupees nine thousand four hundred only) awarded under the head ‘expenditure on medicines’, is maintained and she is also held entitled to the sum of Rs.50,000/- (rupees fifty thousands only) under the head ‘expenditure on future treatment’. 30. The Tribunal has awarded Rs.1,000/- (rupees one thousand only) under the head ‘taxi charges’, Rs.6,000/- (rupees six thousands only) under the head ‘attendant charges’ and Rs.5,000/- (rupees five thousands only/-) under the head ‘special diet, is maintained. 31. The Tribunal has not awarded just and appropriate compensation to the claimant under the head ‘pain and sufferings’, because she has to undergo pain and sufferings throughout her life. Thus, she is held entitled to the tune of Rs.40,000/- (rupees forty thousands only) under the head ‘pain and sufferings undergone’ and Rs.1,00,000/- (rupees one lac only) under the head ‘ future pain and sufferings’. 32. The Tribunal has only awarded Rs.20,000/- to the claimant under the head ‘loss of amenities of life’, which is too meager, is held entitled to the sum of Rs.1,00,000/- (rupees one lac only) under the head ‘loss of amenities of life’. 33. The Tribunal has fallen in error in granting compensation to the tune of Rs.20,000/- under the head ‘loss of suitable match’ to the claimant. At least, the amount of Rs.2,00,000/- (rupees two lacs only) was to be awarded to the claimant under the head ‘marriage prospects’. Had she been in good health, she would have enjoyed the charm of marital life, of which she is deprived of. Accordingly, she is held entitled to the sum of Rs.2,00,000/- (rupees two lacs only) under the head ‘marriage prospects’. 34. Had she been in good health, she would have enjoyed the charm of marital life, of which she is deprived of. Accordingly, she is held entitled to the sum of Rs.2,00,000/- (rupees two lacs only) under the head ‘marriage prospects’. 34. Having glance on the aforesaid discussion, the claimant is entitled to Rs.7,20,000/- under the head ‘loss of future income’; Rs.9,400/- under the head ‘expenditures on medicines’, Rs.50,000/- under the head ‘expenditure on future treatment’; Rs.1,000/- under the head ‘taxi charges’, and Rs.6,000/- under the head ‘attendant charges’, Rs.5,000/- under the head ‘special died, Rs.40,000/- under the head ‘pain and sufferings undergone’, Rs.1,00,000/- under the head ‘future pain and sufferings’, Rs.1,00,000/- under the head ‘loss of amenities of life’ and Rs.2,00,000/- under the head ‘marriage prospects’, total amounting to Rs.12,31,400/- (rupees twelve lacs thirty one thousands four hundred only) and the amount of compensation is enhanced to Rs.12,31,400/- with interest at the rate of 7.5% per annum from the date of the impugned award till its realization. 35. In view of the aforesaid discussion, it is held that 60% of the compensation amount shall be deposited by the insurer of the tempo i.e. the New India Assurance Company and 40% of the compensation amount shall be deposited by the owner of the bus, i.e. the General Manager, Punjab Roadways Ropar, within six weeks before the Registry. 36. On deposition, 75% of the compensation amount be deposited in the name of the claimant in the fixed deposit and 25% be released in her favour through payees’ cheque account. 37. Accordingly, the impugned award is modified, as indicated above and the appeal is disposed of. 38. Send down the record after placing a copy of this judgment on the file.