Oriental Fire and Genl. Ins. Company Ltd. and Another vs Kewal Kumar

S.S. Sodhi, J.—This order will dispose of both the above appeals as also the cross-abjections filed by the claimant.

On April 2, 1976 at about 1.15 p.m. an accident took place at Urmar Tanda on the crossing of the Tanda Miani Road and the road coming from the side of Dasuya, between a milk-van No. PUE-5377 of the Punjab Dairy Development Corporation and the scooter No. PUA 3560. Both Kewal Kumar, who was driving the scooter at the time of the accident and also Krishan Kumar, the pillion rider thereof received injuries. The claim in the present case is by Kewal Kumar, seeking a sum of Rs. 2,00,000/- as compensation for the loss and the injuries suffered by him in this accident.

It was the case of the claimant that he alongwith Krishan Kumar were coming on the scooter from the side of Ahiapur and proceeding towards government college side travelling on the left side of the road at a slow speed. When they approached the hospital chowk, the milk-van which was being driven by Swaran Singh, Respondent came there from the side of Dasuya at a very fast speed. On seeing this van, he (Kewal Kumar) applied his brakes, but the driver of the milk-van did not slow the vehicle or blow any horn while approaching this chowk and could not thus control it. The van came on to the wrong side and struck into the scooter, as a result of which they both (Kewal Kumar and Krishan Kumar) received injuries and were rendered unconscious thereby. According to the claimant, therefore, the accident was caused on account of the rash and negligent driving of Respondent Swaran Singh.

The version of the Respondents, on the other hand, was that, it was the scooter which was being driven at fast speed and on account thereof it could not be controlled as a result it came on to the chowk and hit into the hind portion of the van driven by Swaran Singh. There was thus no negligence on the part of the driver of the van in this accident. It was further pleaded that the road on which the milk van was travelling was the main road.

The Tribunal found in favour of the claimant on the issue of negligence, holding that the accident had been caused entirely due to the rash and negligent driving of the driver of the milk van. Mr. V.P. Gandhi, counsel for the Appellant vehemently sought to contend that the accident here was caused entirely due to the fault and carelessness of Kewal Kumar himself as he had not observed the mandatory requirements of Regulation 6 of Xth Schedule of the Motor Vehicles Act. Great stress was in this behalf laid upon the fact that the accident in this case had taken place at a crossing. The alternative plea put forth by him was that this was at any rate a case of contributory negligence.

When an accident occurs at a crossing it does indeed tend to raise an. inference of some degree of contributory negligence on the part of the drivers of both the vehicles involved in the accident. Whether in fact negligence on the part of one or both such drivers is established and the extent thereof is, however, a matter which must depend upon the facts and circumstances, of each case.

Adverting to the evidence on record with regard to the issue of negligence the case of the claimant rests upon the testimony of P.W. 7 Krishan Kumar who was the pillion rider on the scooter at the time of the accident. It was his testimony that in this accident he too was injured and had become unconscious on account of the injuries suffered by him. This fact stands corroborated by the note recorded by the Tribunal with regard to his injury at the time when he was examined as a witness in this case. P.W. 7 Krishan Kumar deposed to the accident in the manner as set out in the claim application. He stated that when they approached the crossing at Tanda they saw the truck coming from the side of Dasuya at a distance of about 100 yards. This truck was coming at a speed of about 65 kilometres per hour. No horn was blown when it reached the crossing. Seeing this truck Kewal Kumar applied the brakes of the scooter. The scooter had been travelling on the left side of the road. The milk-van was coming at a fast speed and the driver could not control it and it came and struck the front wheel of the scooter. The scooter had almost stopped when the truck had struck against it.

The testimony of P.W. 7 Krishan Kumar was sought to be corroborated by that of P.W. 5 Sudershan Kumar, who deposed that he was going to Urmar on his cycle when he saw this accident. A similar version thereof was given by him.

Turning now to the evidence led from the side of the Respondents the first and most important witness was Swaran Singh, the driver of the milk-van, who appeared as R.W. 1. He stated that he was driving the van and was proceeding towards Amritsar after taking milk from Dasuya. When he had gone across the Tanda crossing, he heard that some vehicle had struck with the rear portion of his van. He immediately stopped the vehicle and saw that a scooter had struck against the trailer. He stated that he had blown the horn while going through the crossing. According to him it was the driver of the scooter, who was at fault by striking the scooter against the trailer. In cross examination he admitted that he had no occasion to see the scooter before it hit against his vehicle.

The two other witnesses examined by the Respondents with regard to this accident were R.W. 2 Jagan Nath and R.W. 3 Bachan Lal. According to Jagan Nath he had his fruit rehri near the crossing and Bachan Lal had a shop there. Both these witnesses deposed that they saw the milk-van coming from the side of Dasuya and the scooter which came from the side of Urmar, struck against the rear portion of the trailer of the milk-van.

There can be no manner of doubt with regard to the presence of P.W. 7 Krishan Kumar and Swaran Singh, driver of the van at the time of the accident. The testimony of P.W. 5 Sudershan Kumar, R.W. 2 Jagan Nath and R.W. 3 Bachan Lal was, however, seriously questioned on the ground that a criminal case had been registered in respect of this accident and they had not joined in the investigation of the case nor was any statement of their''s recorded by the police. In this behalf it is pertinent to recall that Jagan Nath has his fruit rehri in that chowk; while Bachan Lal has a shop there. Indeed had they witnessed this occurrence, there is no explanation to account for the fact that they did not come forth to state to the police what they had seen. In dealing with this aspect of the case, it is pertinent to note Bachan Lal''s statement that he had met Swaran Singh for the first time about a month back and he had given these particulars to him. It is not explained how Swaran Singh had happened to meet him. Jagan Nath also put forth a highly implausible version that he had given his name and address to Swaran Singh two days after the accident. He stated that Bachan Lal had also given his name and address to Swaran Singh in his presence at the same time which is quite contrary to the statement of Bachan Lal. A similar criticism can be levelled against the testimony of P.W. 5 Sudershan Kumar. He too did not make any statement to the police and he was at any rate merely a chance witness. In these circumstances it would not be safe to rely upon the testimony of either of these witnesses.

It stands established from the evidence on record that the accident here took place at a crossing. The scooter came on to this crossing from the right side of the milk-van. The scooter was being driven on its correct side of the road and at a slow speed. What is more, seeing the van, the claimant Kewal Kumar applied the brakes and had thereby slowed down the scooter. The milk-van, on the other hand, did not in any manner try to slow down on approaching the crossing. Swaran Singh, no doubt, stated that he blew the horn while approaching the crossing, but this testimony cannot be accepted in the face of the statement that he had not even seen the scooter before the accident. As per his version, therefore, there was no occasion to either slow down the van or to blow the horn. Further there is no evidence on record to show which of the two roads, the one on which the milk-van was travelling and the other from which the scooter had come, was the main road. Both roads must thus be treated to be of the same character. In this situation there can be no manner of doubt that the provisions of Regulation 6 of the Xth Schedule of the Motor Vehicles Act were observed by the driver of the van only in their breach. This cannot, however, be said with regard to the claimant with the evidence being that the scooter had approached the crossing at slow speed and upon seeing the van, brakes had been applied and the scooter had almost come to halt when the van came and struck against it. It would appear that the van had struck against the scooter just when t tie scooter had arrived at the crossing; with the van coming on to the wrong side thereof as was stated by Krishan Kumar. It would be also relevant to advert here to Regulation 7 of the Xth Schedule of the Motor Vehicles Act which requires traffic approaching the intersection to give way to the traffic coming from right. There was a breach of this requirement too by the van driver in the present case.

For the fore-going reasons the finding of the Tribunal that the accident took place entirely due to the rash and negligent driving of Swaran Singh Respondent must be upheld and affirmed.

Next arises the question of compensation that the claimant is entitled. The Tribunal, treating the claimants loss of income as Rs. 500/- p.m. awarded Rs. 50,000/- as compensation on the interest theory, that is, such sum be awarded which, if invested, would yield a return equal to the annual loss suffered by the claimant or the heirs of the deceased as the case may be. Besides this, a sum of Rs. 5,000/- was awarded to the claimant for the expenses of his medical treatment as also the pain and agony suffered by him.

Having regard to the nature of the injury and damages suffered by the claimant, on account of this accident both financially and physically, the award of Tribunal cannot be sustained.

It has come in evidence that Kewal Kumar was 39 years of age at the time of the accident. As a result of the injuries suffered by him, he had become unconscious and it was in that stage that he was removed to the Primary Health Centre, Tanda, where he was examined by P.W. 1--Dr. Subhash Chander Dhir, who seeing his condition referred him to the C.M.C. Hospital, Ludhiana. The main medical evidence is of Dr. P.I. Sojan, who was examined as P.W. 6. Dr. Sojan deposed that Kewal Kumar was admitted in the hospital at Ludhiana on April 3, 1976 with a closed head-injury. There was no external injury. All the injuries were internal. Kewal Kumar had come to the hospital in an unconscious state. According to this doctor, the intelligence of Kewal Kumar had been permanently damaged and he also has weakness on the right side of the body. He has suffered a permanent disability in-as-much as he would not be able to have a co-ordinative walk and in his speech too he would not be able to articulate his words. His intelligence would remain permanently impaired. Kewal Kumar was no longer absolutely normal or intelligent. He could read but he would not be able to write properly. He would also have a permanent paralytic squint.

Dr. Sojan went on to depose that Kewal Kumar remained admitted in the hospital till June 25, 1976. At the time of his discharge, he could speak words in mono-syllables. He was advised to visit the hospital every month after discharge and he had been doing so. His state of intelligence had shown very gradual improvement but he has now reached a stage where further improvement was rather difficult. The other neurological deficiency was also continuing.

Dr. Sojan also proved the certificate issued by Dr. Ebenerzer J. Dev, who was the other doctor who had treated Kewal Kumar. This certificate is exhibit P.W. 6/A. This certificate, which is dated September 17, 1976 is in the following terms:

This is to certify that Kewal Kumar, aged 39 years (Our hospital Unit No. B-050673) was admitted on 3.4.1976 and discharged on 25.6 1976 after having sustained multiple head injuries and other injuries. He was diagnosed as having severe cerebral contusion with mid-brain injury and intraventricular haemorrhage. Due to the severity of the head injury the recovery to normalcy is very stow and may take a long time. He is improving slowly.

He will have neurological deficits, which may be permanent, in the form of weakness of parts of the body, speech disturbances, inability to walk normally and impairment of intelligence and higher functions.

This state of Kewal Kumar being as has been described above, there can be no question of his ever being able to lead a normal life or to be able to earn his livelihood. Mr. M.L. Sarin, appearing for the claimant thus sought compensation on the ground of loss of income of the claimant for himself and his wife and dependant children and in addition, a claim was put forth for the services which the claimant would require on account of his physical condition. Besides this, there was also a claim made for the pain and agony and the permanent disabilities, of the claimant and for amount spent on his medical treatment.

The amount claimed for medical expenses was Rs. 5,000/- . There is evidence on record to establish the actual expenditure of Rs. 2,627.60 as hospital charges for the period that the claimant remained admitted in the hospital at Ludhiana. Besides this, undoubtedly other expenditure must have been incurred in getting medicines which were not available in the hospital and also for bringing the claimant to the hospital and back after his discharge from the hospital. The amount claimed under this head cannot but be considered to be most reasonable and the claimant was therefore rightly held entitled to a sum of Rs. 5,000/- as claimed.

As regards the loss of income suffered by the claimant, the evidence on record shows that there were three sources of income for the claimant He was running a karyana shop. He was a commission agent dealing with the sale and purchase of foodgrains and he was also an insurance agent for the Life Insurance Corporation of India. P.W. 9 Sh. Dev Raj, clerk from the office of the Assistant Excise and Taxation Commissioner, Jullundur proved that Kewal Kumar was a registered dealer and Sales-tax number had been given to him. He also produced certified copies of the Sales-tax Assessment Orders for the years 1974-75 and 1975-76. P.W. 4 Ved Parkash, a commission agent deposed to the fact that Kewal Kumar too was a commission agent and he was in fact the Secretary of Commission Agents Union. According to this witness, the income of Kewal Kumar was not less than Rs. 1,000/- per month. As regards the income of Kewal Kumar as agent of the Life Insurance Corporation of India, there is the testimony of P.W. 8--Surinder Nath Dogra, an assistant in the office of the Life Insurance Corporation of India. According to this witness, Kewal Kumar earned Rs. 2,993/- by way of commission in 1973-74. The next year it was Rs. 2,594/- while in the years 1975-76 it had gone upto Rs. 4,641/- . Finally, there is the testimony of P.W. 10 Smt. Sudesh Sharma wife of Kewal Kumar. According to her, the income of her husband was about Rs. 1,500/- per month. Rs. 800/- per month he used to give to her as family expenses. The family consisted of their three daughters and a son whose ages ranged from 2 to 9 years. There were also other relations which comprised his family.

Smt. Sudesh Sharma went on to depose that after her husband had met with this accident, he was incapable of doing any work either for the Life Insurance Corporation of India or his karyana or commission agency business. His condition now was such that he could, not walk without support. He could not even take his food by himself nor attend to his daily life routine without support. His faculty to recall past events had been impaired. He was not capable of properly understanding any discussion and one person was now constantly required for his care.

It will be seen that though no accounts have been produced with regard to the income of Kewal Kumar before this accident, there has also been no serious challenge to the amount mentioned as his income by the witnesses examined on his behalf. Keeping in view the fact that there were three businesses in which he was gainfully employed which included that of being an agent of the Life Insurance Corporation of India, the commission for which during the last year was about Rs. 400/- per month even after making an allowance for some exaggeration it would be reasonable in the circumstances to take his loss of income to be not less than Rs. 800/- per month.

This, however, is not merely a case of loss of income, but also of the claimant being left wholly incapable of locking after himself for the rest of his life and being dependent therefore upon others for the incidents and requirements of his daily living. The compensation payable here must thus take into account not only the loss of his earnings but also the added cost of the services which have now been rendered imperative for him by his physical and mental condition. There are, of course various imponderable factors which must also be reckoned with, for example early natural death, disability arising due to illness and other natural calamities. Generally speaking, the principles which must govern the computation of compensation in such cases are akin to those relating to the determination of compensation payable to the dependants of the deceased-With this important difference that instead of some amount being deducted on account of the expenses, which the deceased must have been incurring upon himself, a specific amount must be added to the loss suffered by the claimant as the cost of services, gratuitous or otherwise which the claimant now requires for his physical needs which are attributable to the accident. In other words, the value of such services must figure as a component of the damages that the claimant would be entitled. The principles for determining compensation payable to the heirs of the deceased are as set out by the Full Bench of our High Court in Lachman Singh v. Gurmit Kaur 1979 A.C.J. 170 (P. and H.), where it was laid down that for the purpose of calculating the just compensation, annual dependency of the dependants should be determined in terms of the annual loss accruing to them due to the abrupt termination of life. For this purpose, annual earning of the deceased at the time of the accident and the amount out of the same which he was spending for the maintenance of the dependants will be the determining factor. This basic figure will then be multiplied by a suitable multiplier. In Asha Rani v. Union of India 1983 A.C.J. 52 (P. and H.), it was held that the normal multiplier in such cases is ''sixteen''.

On these principles the loss of income of the claimant may be computed by adopting a multiplier of sixteen. On this basis, the claimant must beheld entitled to Rs. 1,53,600/- under this head (Rs. 800 � 12 � 16).

Next arises the matter relating to the cost of the services that the claimant requires for him to be looked after and tended to. It would be relevant here to advert to the observations of Lord Denning M.R. in Cunningham v. Harrison 1974 A.C.J. 218 (C.A., England) which are reproduced hereunder:

It seems to me that when a husband is grievously injured and is entitled to damages then it is only right and just that, if his wife renders service to him, instead of a nurse, he would recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer....but she has rendered services necessitated by the wrongdoing and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf, because the family income would have dropped by so much....Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation.

A similar question arose before the High Court of Gujarat in Bharat Premjibhai Vs. Municipal Corporation, Ahmedabad and Another, where, following the observations of Lord Denning, M.R. in the case cited above, as also other English authorities, it was observed as under:

This line of decisions of the English Courts clearly establishes the principle that a Plaintiff is entitled to claim damages in respect of gratuitous services provided by a third party (including a close relative) which were reasonably required by the Plaintiff because of his physical needs attributable to the accident. The question whether there was any contractual obligation or any legal liability to pay for the services is relevant, so far as the Defendant and his liability are concerned. Damages are awardable in such a case on the principle that the Plaintiff''s loss is the existence of the need for those nursing services. The value of such loss for purpose of damages or to put it differently for the purpose of the ascertainment of the amount of his loss, is the fair and reasonable cost of supplying those needs. If the provider of such services gave up paid work or otherwise incurred loss ot earnings and also underwent incidental expenses to look after him, the Plaintiff can recover as special damages a specified amount up to the date of the trial which is equivalent to the loss of such third party. For furture attendance and nursing, if need for the same is proved and the person providing voluntary service agrees to render the same as long as he can continue to do so, the Plaintiff can recover general damages at a certain years purchase on the basis of a datum figure which will be arrived at and taking into account the financial disadvantage of the third party. Even if the provider of services had not been doing paid work, but only domestic duties in the house, the Plaintiff can still recover compensation for all the extra attendance on him on the basis of proper and reasonable cost of supplying those needs. The compensation in such a case would also be referable to the past and future financial value of the voluntary services rendered by such devoted provider and the measure of damages will require to be worked out in the like manner as in the other case.

In view of the principles as set out above the claimant must also be held entitled to compensation on this account which, in the circumstances would be fair and reasonable to compute at the rate of Rs. 250/- per month for a period of 16 years, which would work out to Rs. 48,000/- (250 � 12 � 16).

Finally, damages are also to be awarded to the claimant for the pain and agony suffered by him as also his permanent disabilities and the loss of enjoyment by him of the amenities of life and his incapacity to lead a normal life. There is no precise or fixed yardstick for determining such losses. Suffice it to say that having regard to the circumstances and the situation of the claimant which emerges from the evidence on record, it must be held that the claimant is entitled to Rs. 40,000/- as damages under these heads.

The claim in this case was for a total sum of Rs. 2,00,000/- as compensation. This amount the claimant is clearly entitled to. Accordingly the compensation awarded to the claimant is enhanced to this sum of Rs. 2,00,000/- (Two lacs only) which shall be payable to him along with interest at the rate of 10 per cent per annum from the date of the application till the date of the payment of the amount awarded. The liability of the insurance company shall, however, be limited to Rs. 50,000/- while that of the other Respondents shall extend to the entire amount awarded.

In the result, this appeal is hereby dismissed while the cross-objections are accepted. The claimant shall also be entitled to costs. Counsel fee Rs. 500/- .