Arif @ Arifullah Khan vs Shaikh Iqbal and Others

B.G. Deo, J.—The appellant Arif alias Arifullah Khan, son of Niyamatullah Khan, a young boy aged about 26 years, was travelling as a Conductor in a Truck bearing No. MHG- 7999 on 24-11-1980. The truck was being driven by respondent No. 1 Shaikh Iqbal during the course of his employment with the respondent No. 2 Sardar Baldev Singh Bhatia. It was insured with the respondent No. 3. The truck was driven in high speed, in rash and negligent manner by the respondent No. 1 Shaikh Iqbal as a result of which he lost control over the vehicle while negotiating a turn. The truck swerved to its right side, climbed a small hillock and turned turtle on its left side. The left door of the truck flung open in the process and the appellant fell down with the entire body of the truck on him. He was removed in a seriously injured condition to Mayo Hospital, Nagpur where his left leg had to be amputated above the knee. The Driver, respondent No. 1, was prosecuted in Criminal Case No. 23 of 1981 under Sections 279, 338 and 337 of the Indian Penal Code and was convicted and sentenced on admission of his guilt by a judgment (Exhibit 43).

The appellant preferred a claim for compensation of Rs. 78,000/-in Claim Petition No. 18 of 1981. The claim was contested by respondents No. 2 and 3. However, the only evidence adduced in the case was that of the testimony of the appellant, the victim and the eye-witness to the accident. The learned Tribunal found that the accident was caused due to rash and negligent driving on the part of respondent No. 1 and granted compensation of Rs. 15,000/- by way of general damages denying the remaining claim including that of Rs. 6,000/- by way of special damages on account of medical and other expenses.

The appellant has, therefore, moved this Court in appeal for claiming just compensation. He has, however, limited his claim to the additional compensation of Rs. 35,000/- only.

The only question involved in this appeal is about just compensation to which the appellant is entitled. In view of the fact that his left leg was completely amputated on 3-12-1980 in Mayo Hospital, Nagpur following the motor-vehicle accident which took place on 24-11-1980.

The learned Counsel for the appellant, Shri M. I. Shareef, has rightly assailed the meagre award of compensation of Rs. 15,000/- passed by the learned Tribunal on a curious and fallacious reasoning in paragraph 13 of the judgment, a portion of which needs only to be reproduced to demonstrate its uncharitable nature:

The point, however, remains that considerable damage has been caused to the claimant/petitioner and he has to suffer this damage throughout his life. It is his contention that he is not able to do anything. But it is more by way of frustration than by his abilities. He is regularly attending the court. Even today, while the judgment is being pronounced in the open court, he is sitting in the court-hall. It means that when he has a will, he can do whatever is expected from him. There is no doubt a physical impediment in his way but that has not shut out the future course of life or it has not made him stagnant or immovable. He is a young boy. Though he has been deprived of one leg, still all the other faculties are quite working. He has not been immobilized. Thus, it cannot be said that he cannot earn anything.

It is very strange that since the appellant is young not entirely immobilized and can earn something that the learned Tribunal has given him a paltry compensation of Rs. 15,000/- which, by no stretch of imagination, can be considered as just.

A person who loses his vital limb like left leg above knee as a result of a motor-vehicle accident is bound to incur expenditure for a long treatment although he is admitted in Government Hospital. The learned Tribunal was, therefore, completely in error in disallowing the claim for general damages which was only a modest amount of Rs. 6,000/-. The learned Tribunal, in such cases, need not be too technical and has only to judge the reasonableness of the amount claimed, more so in the instant case when the appellant had to spend a long time in recouping his health in the Mayo Hospital and particularly when there was no serious challenge to bis testimony which was the only one on the record. In AIR 1983 Kerala 61 (State of Kerala and Ors. v. P. Vijaykumaran Nair), Their Lordships have observed that non-production of bills and vouchers is not fatal to a claim for compensation.

In a similar case of amputation of one leg in 1985 A.C.J. 612 (Nuruddin Jaffarbhai Nathani v. Khare and Tarkunde, Engineers and Contractors, Nagpur) this Court has awarded in 1984 itself Rs. 60,000/-as just compensation to a petty contractor who was at the thresh-hold of his career when his one leg was amputated as a result of a motor-vehicle accident.

The appellant, therefore, we hold, was entitled to both pecuniary and non-pecuniary losses which would represent just compensation. Pecuniary losses comprise of loss of earnings and other gains and medical and other expenses and non-pecuniary losses comprise of pain and suffering, loss of amenities of life and loss of expectation of life. That the percentage of incapacity was not brought on record was no ground for not taking into consideration the incapacity incurred by the appellant on account of loss of left leg and that too above knee. The incapacity, apart from being apparent, is between 50 to 70% for loss of earning even under the Workmen''s Compensation Act, The appellant is a holder of a heavy motor-vehicle licence. He was employed at the relevant time as a Conductor earning about Rs. 300/- to Rs. 500/-. In due course of time, he would have earned much more once employed as a Driver. Considering all the heads together, therefore, we find that the additional compensation of Rs. 35,000/- claimed by the appellant is a modest one which the appellant richly deserves. His claim is not only just for the loss that has occasioned to him but is far less than what he would have been entitled but for limiting his claim of the total compensation of Rs. 50,000/- making the additional claim for Rs. 35,000/- before us.

We, therefore, hereby allow the appeal and direct payment of additional compensation of Rs. 35,000/- with corresponding costs to the appellant forthwith by the respondents Nos. 1 to 3. The learned Counsel for respondent No. 3 Insurance Company, Shri S.G. Ghube, informs us that the Insurance Company has already satisfied the award of Rs. 15,000/- with corresponding costs made by the learned Tribunal. He has further assured us that additional award of Rs. 35,000/- now passed by this Court would also be satisfied by the Insurance Company with corresponding costs without further loss of time. In view of this assurance, we do not feel any necessity to make any order as regards interest.