Raju vs Jasbir Singh and Others

Sanjay Karol, J.—The present appeal arises out of the impugned award dated 28.7.2004 passed by the Motor Accidents Claims Tribunal, Shimla, H.P. in M.A.C. Case No. 80-S/2 of 1999 titled as Raju v. Jasbir Singh, awarding compensation of Rs. 2,20,000 to the claimant who sustained injuries and permanent disability to the extent of 45 per cent on both the lower limbs.

The claimant has filed the present appeal seeking enhancement of compensation awarded by the Tribunal.

Claim petition u/s 166 of the Motor Vehicles Act, 1988 was filed by the appellant Raju (hereinafter referred to as ''the claimant''), averring that he was travelling in truck bearing registration No. HP 07-2202 being driven by Shyam Lal, respondent No. 2 (hereinafter referred to as ''the driver'') and owned by Jasbir Singh, respondent No. 1 (hereinafter referred to as ''the owner''). On 11.3.1999 due to the driver''s rash and negligent driving the vehicle met with an accident in which the claimant sustained injuries. The claimant who was working as a conductor was earning Rs. 2,100 per month.

The petition was contested by the respondents separately on different grounds and based on the pleadings of the parties, the Tribunal framed the following issues:

(1) Whether the petitioner suffered injuries because of rash and negligent driving of truck No. HP 07-2202 by the respondent No. 2? OPP

(2) In case issue No. 1 is proved in the affirmative, to what amount of compensation the petitioner is entitled and from whom? OPP

(3) Whether the truck, in question, was being run in violation of the terms and conditions of the insurance policy and consequently the insurance company is not liable to satisfy the award? OPR3

(4) Relief.

On the basis of the evidence adduced by the parties, the Claims Tribunal found the driver to have negligently driven the truck resulting into the accident in which claimant sustained injuries.

On issue No. 2, the Tribunal found that the claimant was having a monthly income of Rs. 2,000, but however, since his disability was proved to the extent of 45 per cent in both the lower limbs, therefore, taking the same into account the loss of income and earnings was determined to be Rs. 1,80,000, i.e., 45 per cent of the total income. Rs. 20,000 each was also awarded towards (i) cost of treatment, attendant and transportation charges and (ii) compensation for pain, shock and suffering. Thus, a total sum of Rs. 2,20,000 along with interest at the rate of 9 per cent per annum was awarded in favour of the claimant.

Vehicle being insured with Oriental Insurance Co. Ltd. (hereinafter referred to as ''the insurance company'') and the driver having a valid and effective driving licence at the time of the accident and there being no breach of the terms and conditions of the policy, the insurance company was held liable to indemnify the owner for the awarded amount of compensation.

Claimant alone has filed the present appeal for enhancement of compensation. No cross-objections have been filed by the respondents.

Mr. C.P. Sood, learned Counsel for the appellant has argued that the Tribunal has erred in awarding the compensation by restricting it to the percentage of disability and since it has come on record that the claimant cannot do any work; has no independent income whatsoever; and is totally dependent upon his brother, therefore, the compensation (non-pecuniary and pecuniary) awarded needs to be enhanced.

Per contra, Mr. Lalit Sharma, while agreeing that scope of the present appeal is limited, has supported the award for the reason stated therein.

That the claimant has sustained disability to the extent of 45 per cent on both the lower limbs is not disputed. In any case the same is evident from the disability certificate, Exh. PW2/A, issued by Orthopaedic Surgeon, Indira Gandhi Medical College & Hospital, Shimla. Dr. Manoj Thakur, PW 2 and Dr. R.S. Yadav, PW 5 have also proved the fact that the disability is permanent in nature and on both the lower limbs as the claimant had suffered ''fracture on the left thigh bone along with stiffness of knee and hip joint with chronic osteomyelitis shaft femur''. It has also been proved by these doctors that the claimant cannot perform the work of conductor, driver or labourer any more. Importantly, there is no cross-objection on this point also by the respondents.

Be that as it may be, Raju, PW 3, has also proved that he has not fully recovered from the injuries and even at the time of his deposition (2003), he was still undergoing medical treatment and his wounds have not healed properly. He has also proved that while on job as a conductor, he had learnt how to drive the heavy vehicle and had all plans of purchasing a vehicle in his own name but, however, due to the injury he cannot even do the work of a labourer.

On the point of income, there is no serious dispute as the owner of the vehicle Jasbir Singh, RW 1, himself has deposed that he was paying Rs. 1,500 per month to the claimant as his wages in addition to Rs. 20 per day as diet money.

This is the only evidence on record with regard to the injury and income of the claimant. The claimant undisputedly was 22 years of age at the time of the accident.

In Ward v. James (1965) 1 All ER 563, it is held as under:

Although you cannot give a man so gravely injured much for his ''lost years'', you can, however, compensate him for his loss during his shortened span, that is, during his expected ''years of survival''. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to the brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well-nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern and they keep it in line with the changes in the value of money.

The Apex Court in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, , while dealing with the damages to the victims of the accident who have suffered injuries to their person has held as under:

(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 the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of the 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.

This Court while considering a case of permanent disability of 42 per cent of a student aged 20 years awarded Rs. 4,00,000 towards the pecuniary and non-pecuniary damages. [New India Assurance Co. Ltd. v. Kanchan Kumari 2007 MHLJ 12 ].

The Apex Court in Ashwani Kumar Mishra Vs. P. Muniam Babu and Others, while reiterating the principles of law as laid down in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, awarded a sum of Rs. 5,00,000 as compensation to a young person of 23 years who suffered serious damage to the spinal cord. It was reiterated that where the Tribunal is required to fix the amount of compensation in cases of accident, it involves some guesswork, hypothetical consideration and some amount of sympathy linked with the nature of disability caused to be viewed with objective standards.

In The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another, the Supreme Court while again reiterating the principles of law as laid down in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, awarded a sum of Rs. 4,50,000 to the claimant who was having income of Rs. 3,000 per month and sustained 100 per cent disability. The court reiterated that pecuniary damages are to be valued on the basis of ''full compensation'' which is to be just, fair and reasonable.

Now, applying the aforesaid principles to the present case, it has been proved by claimant that he is totally incapacitated and is unfit to perform any work. He has sustained injury on both the lower limbs and has to move on crutches. He cannot walk properly, enjoy the fruits, advantages and amenities of life and is virtually bedridden and totally dependent upon others. No doubt, claimant is illiterate but he had shown enterprise and was working as a conductor with a hope of driving his own vehicle one day. He had a bright future and prospect of having a good earning. He was unmarried but his marriage prospect was bright.

The Tribunal has awarded the following damages:

Cost of treatment, attendant and transportation charges Rs. 20,000 Compensation for loss of earnings Rs. 1,80,000 Compensation for pain, shock and suffering Rs. 20,000 ------------ Total Rs. 2,20,000 ------------

The Tribunal has awarded a sum of Rs. 20,000 for cost of treatment, attendant and transportation charges. The claimant has no grievance with regard to the same but, however, for the recurring medical expenditure it is argued that Rs. 50,000 be awarded. In the year 2003 at the time of recording of his statement, the claimant categorically deposed that even then he was undergoing medical treatment. His wound is still fresh. There is no cross-examination to the said deposition. He is a resident of village Patyog and is undergoing treatment at the I.G.M.C. & Hospital at Shimla. He has to be accompanied with an attendant and in a hilly terrain to travel in a public transport is difficult. In my view a sum of Rs. 15,000 should be awarded towards the said account. Ordered accordingly.

While awarding compensation for loss of earnings, the learned Tribunal has determined the income to be Rs. 2,000 per month, but after deducting the percentage of disability which is 45 per cent, has arrived at a figure of Rs. 1,000 per month and by applying the multiplier of 15 has calculated the compensation amount to be Rs. 1,80,000 (Rs. 1,000 x 12 = Rs. 12,000 x 15 = Rs. 1,80,000).

As discussed hereinabove, claimant is totally dependent and cannot do any work. He has lost his job. His dreams and plans of setting up his own vehicle stands shattered. He is totally dependent upon his brother for all practical purposes. He has deposed that he cannot perform any job. In effect, his disability is 100 per cent for the purpose of loss of income. Therefore, the deduction as made by the Tribunal in my view is not justified and the compensation for the loss of earnings keeping in view the totality of the circumstances is assessed to be Rs. 3,00,000 instead of Rs. 3,60,000 as prayed for by the learned Counsel for the claimant.

The claimant, undoubtedly had potential of increasing his income and getting married. Since the date of the accident he could not fully recover. He has suffered a permanent disability which is a special circumstance to be taken into account for considering the deprivation affecting his future life. Therefore, damages for mental, physical shock, pain and suffering already suffered and likely to be suffered in future; loss of amenities of life; loss of expectation of life; inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, in my view, needs to be enhanced from Rs. 20,000 (as awarded by the Tribunal) to a lump sum amount of Rs. 1,50,000.I have taken into account the age, future prospects of earnings and all mitigating factors and only after balancing the equities arrived at such a conclusion.

The claimant, thus, shall be entitled to Rs. 20,000 + Rs. 15,000 towards treatment, attendant and transportation charges, Rs. 3,00,000 towards loss of earnings and Rs. 1,50,000 composite amount under all other heads. The claimant shall be entitled to interest as awarded by the Tribunal.

For the aforesaid reasons, the appeal is allowed and the impugned award is modified accordingly.