Lt. S.K. Ganguli vs State of Haryana

Madan Mohan Punchhi, J.—This judgment shall dispose of F.A.O. Nos. 395, 396 and 398 of 1981 since they arise out of the same award of the Motor Accidents Claims Tribunal, Kurukshetra.

The accident which is the basis of this litigation took place on 16th April, 1976. Lt. S.K. Ganguli, the Appellant in F.A.O. No. 395 of 1981, was a passenger in bus No. HYA 1295. So was Jaspal Singh deceased, whose next in kin are the Appellants in F.AO. No. 396 of 1981. The bus left Delhi during night for Chandigarh. It was being driven by Ajaib Singh Respondent. The bus struck into a stationary truck near Shahbad. In the accident, Jaspal Singh died and Lt. S.K. Ganguli suffered grievous injuries. The heirs of Jaspal Singh, being his widow Mohinder Kaur, two sons Shavinder Singh and Jagvinder Singh and a daughter Sukriti Kumari, preferred application for compensation. Similarly, S.K. Ganguli for the injuries suffered by him and the loss in his service, filed claim application for compensation. Since Ajaib Singh Respondent was held to be negligent in driving his bus and on the basis thereof the aforesaid two applications have been decided, the State of Haryana in F.A.O. No. 398 of 1981 has challenged that view, but only against S.K. Ganguli, for no compensation was paid to the heirs of Jaspal Singh deceased. F.A.O. No. 398 of 1981

The question of negligence is of paramount importance in this appeal. Issue No. 1 framed during the trial was to the effect--Whether the accident took place because of the rash and negligent act on the part of the driver? Keeping apart the evidence led by the claimants for the moment, the evidence of Ajaib Singh driver as RW 1 goes a long way to establish it. According to him, at the relevant time he was driving his bus at a speed of 45 km. per hour. When he was on the highway an oncoming truck dazzled lights and despite his using the dipper and slowing the bus and simultaneously applying brakes, the left portion of the bus struck against the stationary truck. Further, according to him, there was no parking light or reflector or any light of the parking truck before the accident. When driving, he claimed with confidence that in the headlight of the bus he could see 200 yards in the ordinary course, but he noticed the oncoming truck from 150 yards and after covering that distance and further distance of 50 yards, the accident took place. Still further he claimed that if he had applied brakes at the speed of 50 km. per hour, he could stop the bus within 15 yards. From his statement it is inferable that when he was at a distance of 200 yards from the stationary truck he could have seen it and the road obstructed. If not, when confronted by the dazzling lights of the oncoming truck a lurking fear should have crossed his mind that the passage in his front could perhaps be blocked by a moving or stationary body. The very fact that the bus rammed into the stationary truck goes to show that the driver did not duly take care to avoid the truck Photographs Exhs. A-6 to A-10 also speak volumes about the accident. It is noteworthy that the truck was loaded with material and its front left tyre stood punctured. Its left side was barely on the kacha road but predominantly the truck was on the pacca road. Had the driver been vigilant, he could not have avoided seeing the stationary truck even after passing the oncoming truck. Once the dazzle of the light was over and there were about 50 yards or even less to cover, there was ample opportunity to swerve towards the right and avoid the accident. As plan Exh. P-30 shows the road was 23V2 feet wide and there was plenty of space for the bus to swerve and steer through. There was thus lack of caution by the driver for which his employers have to suffer. So has said Lt. S.K. Ganguli in his statement.

Learned Counsel for the State pleaded that the accident took place due to act of God, for it could not be perceived by the driver that the road would be obstructed. Alternatively it was pleaded that Section 81 of the Motor Vehicles Act. 1939, prohibits the road being blocked by a stationary vehicle and that the stationary truck which had violated that provision, was alone responsible. It is true that the driver of the stationary truck did defy the provisions of Section 81. But that would have at best established a case of composite negligence. One could have determined the share of blame with meticulous care had the driver/owner/insurer of that stationary truck been made parties to these proceedings. Since we do not have here the version of the stationary offending truck, it is futile to delve deep into that matter. Even if there is one per cent negligence of the bus driver (though not holding so) the recovery can yet be made from the owners of the offending bus. Thus, in my view the Tribunal rightly decided issue No. 1 in favour of the claimants on the establishment of the neglect of the driver. F.A.O. 395 of 1981

The Tribunal awarded to Lt. Ganguli a sum of Rs. 60.000/- bifurcating it as Rs. 5.000/- for pain and suffering, Rs. 20.000/- for disablement, Rs. 3,000/- as expenses of diet, Rs. 2,000/- as attendants'' charges and Rs. 30,000/- towards loss of future salary, though the claim was to the tune of Rs. 4 lakhs and above. Undeniably Lt. Ganguli was a passenger in the bus and he received injuries while in the bus as a result of the accident. Now what exactly happened to him can be judged from the statements of four doctors who had to do something with him from time to time.

Immediately after the accident at 3.15 a.m. Dr. R.K. Kushal PW-3, Incharge Mobile Dispensary, examined Ganguli, then aged about 30 years. He found 17 injuries on his person. Injury Nos. 14 and 15 were declared grievous, for there was a fracture of the right thigh in the lower half and fracture in the middle 1/3rd on the left thigh. Injury No. 13 was kept under observation. The remaining injuries were all over the person of Ganguli. Since Ganguli was a member of the Armed Forces he was admitted to Military Hospital, Ambala the same day, i.e., 16th April, 1976. PW-6 Lt. Col. (Retd.) Dr. H.C. Abrol, Senior Surgeon at Ambala Cantt observed three grievous injuries on the person of Ganguli. Besides fracture of the middle shaft femur right side and fracture of patella right side, there was fracture of left femur. Ganguli remained in the Military Hospital uptil 18th May, 1976, when he was referred to the Army Hospital, Delhi Cantt. At the time of his transfer to the hospital at Delhi, his both lower limbs had been immobilized in a bilateral hips spica and the fractures of femora were immobilised by plaster of paris.

Lt. Col. R.D. Char PW-12 of Base Hospital, Delhi, operated upon Ganguli on 28th July, 1976, for removal of the knee cap of right side. The doctor opined that the bending of his right knee joint was only upto 80 degrees and he was also having limitation of the rotation of left hip. Besides, there was shortening of his left lower limb by half inch. He estimated the permanent disability of Ganguli at 40 per cent. He was of the view that the removal of the knee cap reduced the power of jumping and in later years it might lead to arthritic changes. Due to the said injury, it was opined that Ganguli could not sit on the floor cross-legged. As far as operational disability was concerned, it was opined that Ganguli could not be posted to operational and field areas. On 28th October, 1976 Ganguli was discharged and put in A-3 category on 7th December, 1976.

Major Hoshiar Singh AW-4 deposed that after Ganguli being placed in category A-3 (permanent) he had been put to office job and that he had not remained mentally alert as before and further he had no chance of getting a selection grade beyond the rank of Major. Ordinarily, Ganguli could look forward to retire as a Brigadier, but in the present situation Ganguli could look forward only to be a Major after completing about 13 years'' service. Lastly, he stated that Ganguli could not look forward to retire at the age of 52 years and would have ordinarily obtained promotion only upto the rank of Major in his time scale.

According to Ganguli, who appeared as PW-13, he remained in Intensive Care Unit at Ambala when both his thigh bones and right knee got fractured due to the accident. Treatment was, however, free but food etc. had to be provided and attendance on him by his mother became necessary. She had to spend on her conveyance for coming to and fro to the house of a friend where she was staying. He termed his expenses at Rs. 3,000/- which the Tribunal has awarded. On moving to Delhi, he was given physiotherapy till he was discharged on 25th October, 1976. He could join duty on 10th December, 1976 and was given a desk job having been placed in category A-3. He lamented that he would not get promotion now beyond the rank of Major for his left leg h ad got shortened by 4 cms. and remained painful and the right leg''s knee cap had been removed and there was restriction of movement on knee-joint. Besides, his leg had been shortened. He maintained that he had to wear shoes with different height of heels. He maintained that he had spent about Rs. 4,000/- extra at Delhi on food and other necessities. The Tribunal has also awarded this sum in the form of attendants'' charges inclusive of food at Rs. 2,000/-. Lastly, he maintained that due to his disability his chances to become Major stood delayed by about nine years because in active service he could look forward to be a Major within 4� years while ordinarily after 14 years. He submitted his pay fixation charts as Exhs. P-13 to P-16. The loss in terms of money due to delayed/non-promotion is calculated in chart Exh. P-21. He maintained that due to loss of salary, there will be consequential loss of pension also and he had calculated the loss on the life expectancy of 85 years. There was no rebuttal evidence by the Haryana Roadways.

Learned Counsel for Ganguli asserts that despite the free treatment obtained by him, there were other expenses inherent in treatment, which should have been allowed. Besides, it was asserted that the Tribunal had awarded a meagre sum of Rs. 20,000/- on account of disablement and a sum of Rs. 30,000/- as loss of future salary and that the same deserves to be substantially enhanced. Further, it was asserted that future prospects and pension as also loss of enjoyment of life had not been taken into account. And lastly, it was asserted that appropriate interest had not been awarded on the awarded sum.

On pondering over the matter from all angles, I am of the view that a young bright lieutenant as Ganguli was, he could look forward to a bright future in the Army for which ordinary as also extraordinary avenues were open to him dependent on his devotion to duty, hard work and luck. A man, who is mentally made that way (for service in the Army is no ordinary career) to be made to attend a desk job, is more or less bordering imprisonment. From this one can measure the loss of enjoyment of life. Additionally, his prospect of quick promotion having been diminished, in the nature of things would diminish pensionary benefits and other retiral benefits. Though no standard formula is readily available but two cases by way of illustration are available when in F.A.O. No. 207 of 1973; decided on 20th May, 1977, where a Brigadier lost his eye and in Gursharan Singh Sandhu v. State of Haryana 1985 ACJ 641 (P and H), a Junior Engineer lost his limb, substantial awards above a lac have been made by this Court. Keeping those cases as; a guide and the high rate of inflation eating the value of the rupee, I would assess cumulatively the loss of Ganguli at Rs. 1.50 lakhs. Thus, I enhance this award from Rs. 60,000/- to Rs. 1.50 lakhs. I would also award 12 per cent per annum interest to be paid from the date of application till realisation. F.A.O. 396 of 1981

Jaspal Singh deceased at the time of his death was a Member of the Punjab Public Service Commission. According to his wile, Mrs. Mohinder Jaspal Singh PW-1, he was born on 22nd December, 1917. He retired as a Joint Secretary in Punjab Government on 31st December, 1975. On the following day, i.e., 1st January, 1976, he was appointed a Member of the Punjab Public Service Commission. He was drawing a salary of Rs. 2,500/- per mensem. His other entitlements were to car allowance, free residence, telephone and en orderly. Besides that, he owned land in Gum Jandiala, district Amritsar, measuring 24 acres which was under his self-cultivation and was getting an income of Rs. 30,000/- per annum. According to her, the income from the land had dwindled to Rs. 5,000/- per year because there was no one to look after the same. Additionally, it was maintained by her that the orchard owned by her and her son Jaswinder Singh measuring 20 acres, was also being looked after by the deceased and its income had also dwindled down from Rs. 15,000/- to Rs. 3,000/- per year. Asserting that her husband would have retired as a Member of the Punjab Public Service Commission on 31st December, 1979, she assessed her total claim at Rs. 3 lakhs on account of his death. The Tribunal took the view that the claimants, who were two adult sons, aged 36 and 38 years and a daughter aged 26 years, besides the widow, had suffered no loss on account of the death since they were otherwise rich and stood adequately provided for from their own means. This view of the Tribunal is challenged more on the anvil of the claim of the widow than that of the children of the deceased, for undeniably as stated by the widow, she and her husband were living together sharing each other''s company and the official residence, telephone etc. Additionally, it has been maintained that there has been a loss to the estate as whatever he would have left after expending on himself, would have formed part of his estate, which would have fallen to his heirs.

As it has appeared from the evidence of PW-7 Prem Singh Sethi, Assistant of the Office of the Punjab Public Service Commission, the deceased had been appointed as a Member of the Commission on 1st January, 1976, on contractual basis for four years and he was to be paid a fixed salary of Rs. 2,250/- along with house-rent of Rs. 281.25 and dear-ness allowance of Rs. 100/- per mensem. During that period, the pension of the deceased was to remain in abeyance. On a round figure, the deceased then was drawing Rs. 2,600/- as his salary. He died on 16th April, 1976 after having remained a Member of the Commission for just 3� months. The balance period was thus three years and 8� months. Thus, he would have normally earned around Rs. 1.15 lakhs as salary. Out of the same, to maintain his status and social relations, it would be expected of him to have spent 1/3rd thereof. Out of the remainder, he would have either shared this sum between him and his wife or made some savings for the benefit of the estate. In a round figure, thus the loss to the widow can be assessed at Rs. 40,000/-. The mere fact that she stood adequately provided for by being a woman holding an estate, does not alter the position that the husband was sharing his life with her in a common residence. Any small saving which even hypothetically he might be assumed to have made would have gone down the drain by the rise of inflation. Thus, from the salary source the widow stands deprived of Rs. 40,000/- and she deserves to have this amount as compensation.

On the other limb of the claim that due to the death of the deceased, the income from the landed property, which he used to self-cultivate, has dwindled down from Rs. 30,000/- per annum to Rs. 5,000/- per annum, no evidence has been led except the bald statement of the widow. Even otherwise, it does not sound credible that the deceased was indispensable to the family. His property on account of his old age, incapacity or death, was otherwise to be looked after by his sons who were in their fruitful years of 36 and 38 respectively. I would not on the bald statement of PW-1 accept this part of the claim. The same goes for her claim regarding loss of care to her orchard and dwindling of the income. Thus, I am of the considered view that except for the above sum of Rs. 40,000/- awarded, no other sum is due to the widow and nothing is due to the other claimants. Accordingly, I award a sum of Rs. 40,000/- to Mrs. Mohinder Jaspal Singh claimant with interest at the rate of 12 per cent per annum from the date of the application till the date of realisation.

No other point arises in these appeals.

The end result of these appeals is that F.A.O. Nos. 395 and 396 of 1981 are allowed in the terms above-stated and F.A.O. No. 398 of 1981 is dismissed, but without any order as to costs.