Kewal Krishan Sharma and Others vs Pepsu Road Transport Corporation and Another

S.S. Sodhi, J.—Ashok Kumar Sharma was killed while his wife Kalpna Sharma and their six months'' old son Sumit Sharma sustained injuries when the car DHB 6791, he was driving, was involved in an accident with the Pepsu Road Transport Corporation bus, PUC 3057, coming from the opposite direction. This happened on February 8, 1979 at about 8.30 p.m. near Zirakpur on the Chandigarh-Ambala Road. The car was proceeding towards Chandigarh while the bus had come from that side.

It was the finding of the Tribunal that this was a case of contributory negligence" with both the bus driver and Ashok Kumar Sharma deceased, the car driver, being equally to blame. After making an allowance for the contributory negligence of the deceased, a sum of Rs. 75,000/- was awarded as compensation to his widow and two sons. Besides this, Rs. 4,500/- was awarded as compensation to Kalpna Sharma for the injuries sustained by her. Rs. 1,000/- to their son Sumit Sharma besides the award of Rs. 9,000/- for damage to the car.

Assailed in appeal, in the first instance, was the finding of contributory negligence. According to the claimants, car was proceeding on its correct side of the road when the bus came on to the wrong side of the road from the opposite direction at a very fast speed and hit into it and thus caused the accident. The bus driver, on the other hand, lay the blame for the accident wholly upon the car driver saying that it was in fact the car that had come on to the wrong side of the road and hit into the bus. A plea was also raised that the driver of the car was under the influence of liquor and that the accident had taken place due to his rash and negligent driving.

The claimants examined PW 8, J.J. Sharma and PW 9 Vinod Kapur as the two eyewitnesses to the occurrence besides the claimant PW 11 Kalpna Sharma. PW 8 J.J. Sharma deposed that he was following the ill-fated car on his scooter when the accident occurred, while according to PW 9 Vinod Kapur, he was in the bus at that time. The Tribunal, for very sound reasons, placed no reliance on their testimony. Neither of these witnesses was mentioned in the first information report, nor was their presence there deposed to by the Investigating Officer, PW 7, S.I. Chand Singh. Indeed, no statement of theirs was ever recorded by the police Further, they did not accompany the injured and the deceased to the hospital nor did they care to inform their relations, yet they both deposed that they went to the Post-Graduate Medical Institute the next morning to enquire after the injured. There is ring of implausibility in the conduct of these two witnesses which clearly renders it unsafe to rely upon their presence at the spot at the time of the accident.

Similarly, the Tribunal rightly did not accept the testimony of RW 3 Dev Chand and RW 4 Sat Dev who came forth to depose in favour of the bus driver. They both claim to have been travelling in the bus when the accident occurred. Here again neither of these witnesses made any mention of this accident to any one until they appeared before the Tribunal. They did not join in the investigation of the case nor were their statements ever recorded by the police. As regards RW 2 Brish Bhan, bus-conductor, he is, on the face of it, an interested witness and his version that he happened to be standing near the front side of the bus at that time, does not deserve acceptance particularly when there is no mention by him, how and why he happened to be there at that time.

In the situation, as thus emerges, the manner in which the accident took place has thus to be determined keeping in view the circumstances of the case in the light of the testimony of PW 11, Kalpna Sharma, the injured claimant and the bus driver RW 1 Shamsher Chand. It has come on record that the metalied portion of the road where the accident took place was 22 feet wide. This provided more than the necessary space required for a bus and a car to pass without hitting into each other. According to the site plan, exhibit PW 7/A, prepared by S.I. Chand Singh, the place of accident is shown to be in the middle of the road. The photographs of the scene of occurrence corroborate this. What is pertinent to note is the position of the front wheels of the bus. They are shown to bi pointing out towards its right, that is, the side from which the car was coming. If indeed the bus had been travelling at its correct side of the road and in fact had been taken on to the kacha portion as deposed to by the bus driver, there was clearly no warrant for the position of the wheels being such. It also seems unlikely that the position of the two vehicles as shown in the photographs was as at the time of the impact between them. Some distance must undoubtedly have been covered by the bus before it came to a halt. At the same rime, with the car being hit by the bus in such a manner that it was pushed back and came to face the side from which it was coming, obviously means that the car must have come to rest at a point somewhere behind the place of impact. Considered in this light, it would tend to suggest that the accident had been caused by the bus coming in the middle of the road without it having left adequate space for the car to pass. It would be relevant here to note the statement of the claimant, Kalpna Sharma. According to her, the car was at slow speed and on its correct side when the bus coming at a fast speed from the opposite direction came and hit into it. This was challenged in cross-examination but by merely putting forth a formal suggestion that the car was being driven by her husband at a fast speed and in a negligent manner. No further details of the manner in which the accident occurred, were sought to be elicited from her in the cross-examination.

As regards the plea that the car driver was under the influence of liquor, there is only the statement of the bus driver and his witnesses to this effect, but it is significant to note that there was no mention of any liquor in the post-mortem report, nor by the Investigating Officer, S.I. Chand Singh. He specifically denied that any bottle of whisky-broken or otherwise, had been found either in the car or near the spot.

Keeping in view the totality of the circumstances of the case in the light of the evidence on record, this must be held to be a case of rash and negligent driving of the bus by the bus driver alone, with the car driver being in no way to blame for it. The finding of contributory negligence recorded by the Tribunal cannot, therefore, be sustained.

Turning now to the quantum of compensation payable to the claimants, the evidence on record shows that Ashok Kumar Sharma deceased was a partner in two firms, namely: M/s. Oriental Publishers and M/s. Arson /Photo Offset Printers. According to the income tax assessment orders exhibits PW 11/B, PW 11/C, PW 11/D relating to M/s. Arson Photo Offset Printers, the share of the profits of Ashok Kumar Sharma deceased, during the year 1975-76 was Rs. 2,586/- ; 1976-77 Rs. 3,226/- and 1977-78, Rs. 3,541/-. As regards M/s. Oriental Publishers, Railway Road, Jullunder, the share of Ashok Kumar deceased in the profits of this firm, according to the income tax assessment order exhibit PW 11/F for 1977-78 was Rs. 12,085/- while for the year 1978-79 it was Rs. 11,665/- and for the next year 1979-80, his share shown in PW 11/G was Rs. 29,055/-. Mr. L.M. Suri, counsel for the claimants also adverted here to the other facilities available to Ashok Kumar deceased, namely, a car and telephone. It was his contention, therefore, that the income of the deceased deserves to be taken at Rs. 20,000/- per annum with Rs. 15,000/- being the dependency of the claimants.

In considering the compensation payable to claimants here, it must be observed that important evidence so necessary for proper determination of the loss suffered by the claimants is not forthcoming. It was stated by the claimants that after the death of the deceased, the partnership was dissolved and a new partnership was constituted omitting the deceased. Neither of these partnership deeds, were produced on record and it has also not been brought out in evidence what the share of the deceased was in terms of capital and what happened to it after his death. PW 11, Kalpna Sharma, was specifically asked regarding this matter, but she stated that she could not say anything regarding the capital or the value of the assets of the deceased in the partnership. It would be safe to assume therefore, that whatever assets the deceased had, they must have devolved upon the claimants. Keeping in view, however, the fact that deceased was a working member of the partnership and played an important role in running and managing it, there can be no manner of doubt that even if it be taken that the claimants got the capital and assets of the deceased, they undoubtedly suffered a loss of earnings to the extent attributable to the labours and efforts of the deceased in the running of the business. Taking an over-all view of the state of business that the deceased was engaged in, the uncertainty inherent therein and his circumstances generally, no exception can be taken to the finding of the Tribunal that the dependency of the claimants was to the tune of Rs. 10,000/- per annum.

Ashok Kumar Sharma deceased was only about 30 years of age at the time of his death. He died leaving behind his young widow, Kalpna Sharma and their two minor children, the eldest of whom was only about 472 years old while the younger about six months old. Keeping in view the principles laid by the Full Bench in Lachman Singh v. Gurmit Kaur 1979 AC J 170 (P&H), ''16'' would clearly be the appropriate multiplier to be applied in this case. So computed, the compensation payable to the claimants would work out to Rs. 1,60,000/-.

Next to consider is the claim of the claimant Kalpna Sharma for the injuries sustained by her in this accident. According to PW 10 Dr. Jaswant Rai of the Post-Graduate Medical Institute, Chandigarh, he found five injuries on her person when he examined her on February 8,1979. They being:

(1) Lacerated wound 5 cms. x 0.5 cms. on the anterior aspect of the shoulder (right) skin deep.

(2) A lacerated wound over the middle finger.

(3) Fracture shaft humerus (right).

(4) A crack fracture tibia (right).

(5) Fracture base of third, fourth and fifth metacarpal bones of the right hand.

Dr. Jaswant Rai further deposed that she remained admitted in the hospital till February 20, 1979 when she was discharged with plaster on her right arm and leg. About eight weeks later, it was discovered that the fracture on her right arm had not united and she was then readmitted and operated upon on April 23,1979. A rod was then inserted for the re-union of bones and bone grafting was also done. The arm was raised to 90 degree and was then kept in that position. Plaster was applied on both the arms and chest and it was in that condition that she was discharged on May 6, 1979. The arm was kept in that position for about three months. It was also stated that a bone had to be taken from her left hip for bone grafting leaving a scar on the hip. The doctor opined that this may now render it difficult for the claimant to hold her saree at that place. As regards the rod in the upper portion of the arm, it was stated that this would limit the movement of right shoulder and also make it painful and that it would be difficult for the claimant to lie on her right side because of this rod. Another operation would be required for taking out the rod.

The claimant PW 1 Kalpna Sharma deposed that her arm, chest and leg were kept under plaster for about six months and that she started moving from her bed only about three months after the plaster was removed. She further stated that. the movement of her arm was still painful and she could not lift any weight with it. She also complained that the movement of the shoulder was painful. It was further her testimony that she could no longer wear sarees since tying of the knot was painful and there was a scar on the lower part of the abdomen where the saree is tied and this scar was visible.

In dealing with the claim of the claimant, Kalpna Sharma, it would be pertinent to note that being a housewife she also had her housework to look after. Being incapacitated for several months and then suffering this pain and agony for such" a long period this cannot but have severely prejudiced her in her daily life. Considering the nature and extent of the injuries suffered by her and the disabilities and the impairment in her enjoyment of life caused thereby, the award of Rs. 8,000/- on these counts, cannot but be held to be grossly inadequate. It would be more in accordance with the interests of justice that the compensation payable to her on these counts, is enhanced to Rs. 30,000/-. There is however, no warrant for any enhancement of compensation payable to her on account of loss of income. The award of Rs. 1,000/- under this head must thus be sustained.

The claimant must undoubtedly also have spent some amount on her medical treatment though there is no proof of the precise amount spent. In the circumstances, it would be fair and just to award her Rs. 2,000/- on this account. The total compensation thus payable to this claimant would work out to Rs. 33,000/-.

Next to consider is the claim relating to the minor-Sumit Sharma. According to PW 1 Dr. P.R. Gulati, Professor of Neuro-surgery of the Post-Graduate Medical Institute, Chandigarh, Sumit Sharma was admitted in hospital with multiple injuries on February 8, 1979. There was a 3" long wound on his head with the underlying bone exposed and there were multiple abrasions. X-ray showed that the right frontal bone had broken into many pieces and the fracture was extending into the parietal and frontal bones. An operation was performed and some bone fragments were removed from the right frontal bone. The membrane under the bone was torn and that too was repaired. This child was eventually discharged on February 20, 1979. The doctor stated that it was not possible at this stage to opine regarding the intellectual development of the child, but the possibility of retardation, on account of these injuries, could not be ruled out.

Considering the nature and extent of the injuries suffered by this minor child and the consequences that could arise on account thereof, as deposed to-by Dr. Gulati, it would be fair and just to enhance the compensation to this claimant to Rs. 20,000/- inclusive of the cost of his medical treatment.

Finally, there is the claim for damage to the car involved in the accident. The Tribunal had come to the conclusion that this loss was to the tune of Rs. 18,000/-. There is no material on record to warrant any different finding. This is accordingly the amount which deserves to be awarded on this account.

The compensation payable to the claimants, that is, the widow and two minor sons of the deceased is accordingly hereby enhanced to Rs. 1,60,000/-. Out of the amount awarded, a sum of Rs. 40,000/- each, shall be payable to the minor claimants and the balance to the widow, Kalpna Sharma, In addition the claimant-Kalpna Sharma shall be entitled to Rs. 33,000/- as compensation for the injuries sustained by her while Sumit Sharma shall be entitled to Rs. 20,000/- on this account. The claimants, M/s. Arson Photo Offset Printers shall be entitled to Rs. 18,000/- as compensation for damage to the car. The compensation payable to the claimants shall be paid to them along with interest at the rate of 12 per cent per annum from the date of the application to the date of payment of the amount awarded. The compensation payable to the minor claimants shall be paid to them in such manner as the Tribunal may deem to be in their best interest.

The Pepsu Road Transport Corporation and the bus driver, Shamsher Chand shall be jointly and severally liable for the compensation awarded.

In the result, all the appeals are hereby accepted with costs, while the cross-objections filed by the Pepsu Road Transport Corporation are dismissed with costs.