Amrit Pal Singh vs Baldev 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 6.8.99 for enhancement of compensation. The learned Tribunal awarded a total amount of Rs. 77,000/-(50% of Rs. 1,54,000/-deducted on account of contributory negligence on the part of appellant) with an interest @ 12% PA for the injuries caused to the claimant appellant in the motor accident.

The brief conspectus of facts is as under:

On 16.9.88, appellant Amrit Pal Singh was travelling in a bus bearing registration No. DEP-7080 being driven by R1, Baldev Singh, on which R2, Rohtas Singh was helper/conductor. When the bus reached the stop at Ramesh Nagar number of passengers got down but when appellant reached near the front gate, the bus started moving. The appellant informed the Conductor/R-2 that he was to get down at Ramesh Nagar. Conductor asked the driver to stop the bus to enable the appellant to get down. When appellant was in the process of getting down the bus, Respondent No. 1 accelerated the speed of the bus all of a sudden and the bus moved with a jerk. As a result, appellant as well as helper/conductor Rohtas Singh fell out of the bus. Even thereafter, R1 did not stop the bus and appellant was dragged to some distance and the rear wheel of the bus ran over the thigh of the appellant.

A claim petition was filed on 16.3.89 and an award was passed on 6.8.99. Aggrieved with the said award enhancement is claimed by way of the present appeal.

Sh. O.P. Goyal, Counsel for the appellant claimant urged that the award passed by the learned Tribunal is inadequate and insufficient looking at the circumstances of the case. He assailed the said judgment of Learned Tribunal firstly, on the ground that the tribunal erred in holding the appellant as well as driver of the offending bus equally negligent. The appellant showed his discontent to the amount of compensation awarded towards pain and suffering. He claimed Rs. 5,00,000/- for tremendous pain & suffering and mental agony. It was submitted that appellant suffered 100% disability for reproduction and sexual life and Ld. Tribunal ought to have awarded Rs. 10,00,000/- on this count. Further, it is contended that separate compensation ought to have been awarded for loss of enjoyment of life & for loss of amenities of life. It is further contended that the loss of income should also be enhanced to Rs. 76,800/- as appellant was earning Rs. 1600/-per month at the time of accident and could not earn for a period of 4-5 years. It is also stated that Ld. Tribunal erred in not awarding any compensation for future loss of earnings. The Counsel also submitted that Ld. Tribunal has not considered the fall in the value of money between the date of accident and the date of judgment. Further the Counsel pleaded that the Counsel erred in awarding an interest of 12% pa instead of 15% pa in view of the Supreme Court judgment reported as 1991 ACJ 3.

Per contra Mr. J.N. Aggarwal Counsel for respondent No. 6 urged that the respondent No. 6 is not at all liable to pay the compensation amount and even the appellant petitioner did not press the claim against respondent No. 6 which is manifest from para 24 of the award.

I have heard 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. 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 awarded Rs. 10,000/- for expenses towards medicines; Rs. 10,000/- for conveyance expenses; Rs. 50,000/- for mental pain and sufferings; Rs. 75,000/- towards disability and loss of enjoyment of life; Rs. 9000/- on account of loss of wages.

As regards mental pain & suffering, the tribunal has awarded Rs. 50,000/- to the appellant. It has come on record that the rear tyre of the bus ran over the lower part of the body of the appellant as a result of which the appellant sustained fracture of pelvic bone and also sustained wounds on the other body parts. Considering that the pelvic area or the pelvic cavity is a body cavity that is bounded by the bones of the pelvis and which primarily contains reproductive organs, which is a sensitive part of the body, the tribunal awarded Rs. 50,000/- in this regard. This is a non-pecuniary head of damage and the same is awarded considering the facts and circumstances of the case. In the facts and circumstances of the case, I feel that the compensation towards mental pain & suffering as awarded by the tribunal should not be interfered with.

As regards the compensation towards permanent disability, the tribunal awarded Rs. 75,000/-. It has come on record that the appellant lost his both testicles. Dr. S.P. Bajaj of the Safdarjung Hospital certified vide Ex. PW4/B that the petitioner cannot procreate and his sexual life has become disabled to the extent of 100%. The tribunal considering this awarded Rs. 75,000/- under this head. In the facts and circumstances of the case and considering that this is a non-pecuniary head of damage and the same is awarded considering the facts and circumstances of the case, no interference is made in the award in this regard.

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. It has come on record that the rear tyre of the bus ran over the lower part of the body of the appellant as a result of which the appellant sustained fracture of pelvic bone and also sustained wounds on the other body parts. It has come on record that the appellant lost his both testicles. Dr. S.P. Bajaj of the Safdarjung Hospital certified vide Ex. PW4/B that the petitioner cannot procreate and his sexual life has become disabled to the extent of 100%. I feel that the tribunal erred in not awarding the same and in the circumstances of the case same is allowed to the extent of Rs. 75,000/-.

As regards loss of earnings, no proof regarding income of the appellant was brought on record. As per the claim petition, the petitioner submitted that he was employed with M/s. Rainbow Video Cassettes at Rs. 850/- pm and also used to earn Rs. 700/- pm by working as an electrician in spare time. The petitioner as PW 2 deposed that he used to earn Rs. 800/-pm but after adding his overtime payment his total wages came to Rs. 1600/- pm. He further deposed that due to the accident he could not work for 4-5 years and thereafter he started doing the job of an electrician from his residence and used to earn Rs. 1600/- to 2000/- pm. But nothing was brought on record in relation to the income of the appellant and therefore, the tribunal assessed the income as per the minimum wages notified in the year 1988, the minimum wages for a skilled worker were Rs. 749/- pm rounded of to Rs. 750/- pm. The tribunal considered that it came on record that the petitioner remained hospitalized for about three months and thereafter attended physio therapy sessions upto January 1989. Taking into consideration the facts and circumstances of the case the tribunal took the view that the petitioner must have not been able to work for one year and assessed the loss of income at Rs. 9,000/- pm. Considering that the appellant could not prove the period during which the appellant did not work and suffered loss of income. Therefore, no interference is made in this regard in the award.

As regards loss of future income, nothing has come on record to prove the same and therefore, the tribunal committed no error in not awarding compensation under the said head of damages. Thus, no interference is made in the award.

As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 15% p.a., I feel that the rate of interest awarded by the tribunal is just and fair and requires no interference. No rate of interest is fixed u/s 171 of the Motor Vehicles Act, 1988. The Interest is compensation for forbearance or detention of money and that interest is awarded to a party only for being kept out of the money, which ought to have been paid to him. Time and again the Hon''ble Supreme Court has held that the rate of interest to be awarded should be just and fair depending upon the facts and circumstances of the case and taking in to consideration relevant factors including inflation, policy being adopted by Reserve Bank of India from time to time and other economic factors. In the facts and circumstances of the case, I do not find any/infirmity in the award regarding award of interest @ 12% pa by the tribunal and the same is not interfered with.

In view of the foregoing, Rs. 10,000/- is awarded towards expenses for medicines; Rs. 10,000/- for conveyance expenses; Rs. 50,000/- for mental pain and sufferings; Rs. 75,000/- towards disability and loss of enjoyment of life; Rs. 75,000/- for loss of amenities of life and Rs. 9000/- on account of loss of wages.

As regards the issue of contributory negligence of the deceased, I feel that the tribunal committed no error. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party by exercise of reasonable care could have avoided the consequence of the other''s negligence. Whichever party could have avoided the consequence of the other''s negligence would be liable for the accident. If a person''s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage is reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. It has come in the deposition of PW2 the appellant himself that he was going to Palika bazaar, his place of work and he tried to stop the offending bus at Ramesh Nagar so that he could change the bus and travel in another bus which was just behind the offending bus which was directly going to palika bazaar. But appellant took time to move to the front gate of the bus and the bus started moving. The appellant was pulled out from the crowded bus towards the front door by the helper and the appellant lost his control and stumbled down from the moving bus and resultantly met with the accident and came under the rear wheel of the bus. But this version is slightly different from the facts stated in the pleadings wherein the appellant petitioner has nowhere mentioned that the helper pulled him in the front. Rather therein he mentioned that on 16.9.88, appellant Amrit Pal Singh was travelling in a bus bearing registration No. DEP-7080 being driven by R1, Baldev Singh, on which R2, Rohtas Singh was helper/conductor. When the bus reached the stop at Ramesh Nagar, a number of passengers got down but when appellant reached near the front gate, the bus started moving. The appellant informed the Conductor/R-2 that he was to get down at Ramesh Nagar. Conductor asked the driver to stop the bus to enable the appellant to get down. When appellant was in the process of getting down the bus, Respondent No. 1 accelerated the speed of the bus all of a sudden and the bus moved with a jerk. As a result, appellant as well as helper/conductor Rohtas Singh fell out of the bus. Even thereafter, R1 did not stop the bus and appellant was dragged to some distance and the rear wheel of the bus ran over the thigh of the appellant. Considering the fact that the appellant was in a hurry to board another bus which was behind the bus in which he was travelling and also considering the fact that the appellant petitioner had deviated from his version in the claim petition while deposing as PW2, the tribunal held him as also contributory negligent in the facts of the instant case. I feel that the tribunal committed no error in this regard as obviously in a hurry to board a bus to reach his office the appellant forgot the safety rules.

From the above discussion, it is manifest that no doubt mainly the bus driver of the bus bearing registration No. DEP 7080 was negligent but the appellant also contributed to the said accident which led to the injuries sustained by him in the accident. Thus, clearly the appellant was liable for negligence but the percentage liability attributed to the appellant appears to be on the higher side in the facts of the present case, therefore the same is modified to the extent of 30%. Hence, after making 30% deduction towards contributory negligence of the appellant, the total compensation after making 30 % deduction from Rs. 2,29,000 will come to Rs. 1,60,300/- (229000-68700).

As regards the contention of the Counsel for the appellant that there is no liability of the respondent No. 6 DTC and it should not be held liable to compensate the appellant. The tribunal has clearly held respondents 1, 3 and 7 liable for the payment of compensation and thus there is no liability of the respondent No. 6 in the instant case.

In view of the above discussion, the total compensation is enhanced to Rs. 1,60,300/- from Rs. 77,000/- along with interest @ 7.5% per annum on the enhanced compensation 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. 7.

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