Sanjay Prasad vs The New India Assurance Company Ltd. and Others

Shivakant Prasad, J—The appellant/claimant has preferred the instant appeal under Section 173 of the M.V. Act, 1988 on being aggrieved by and dissatisfied with the judgment and award dated 02.4.2004 passed by the learned Additional District & Sessions Judge, 3rd Court, Alipore, South 24-Parganas (hereinafter called the learned Tribunal Judge) in M.A.C. Case No. 164 of 2001 on the grounds inter-alia, that the learned Tribunal Judge erred in law and fact in dismissing the M.A.C. Case No. 164 of 2001 without considering the materials on record viz. claim petition, written statement, depositions, documents, exhibits etc. filed before the Tribunal and as such, the impugned award/order is bad in law and the same is liable to be set aside.

Brief case leading to the instant appeal is that on 30.3.2001 at about 5:30 P.M. the victim Kavita Kumari was returning towards her residence through A.J.C. Bose Road from East to West. When she reached near the crossing of A.J.C. Bose Road and Lord Sinha Road, all on a sudden one lorry bearing registration No. WB-25/3483 came with a high speed in a rash and negligent manner, endangering human lives and safety to others, without blowing any horn or without giving any signal knocked down the victim resulting in multiple severe injuries all over her person who was admitted to S.S.K.M. Hospital, Kolkata.

It appears from the Order impugned that the learned Judge dismissed the claim application under Section 166 of the M.V. Act on consideration that the Charge-sheet has not been submitted by the I.O. over the motor accident to prove the element of Section 166 of M.V. Act. It appears that the learned Judge framed issue No. 2 as to whether the accident occurred due to rash and negligent driving of the alleged offending vehicle by its driver. This issue would have been decided in the affirmative by the learned Tribunal Judge on the basis of the forwarding report of the Officer-in-Charge dated 02.4.2001 wherefrom it is revealed that the driver of the lorry bearing No. WB 25-3483 drove the lorry along AJC Bose Road from East West direction in a rash and negligent manner endangering human lives and safety to others knocking down the victim Kavita Kumari aged 16 years of 59 B, Chourangi Road, Kolkata-20 while she was crossing the road on 30.3.2001 at about 17:30 hours and the accused driver Jaga Yadav was produced before the CMM, Calcutta after his arrest in connection with Shakspior Sarani P.S. Case No. 93 dated 30.3.2001 under Sections 279/338 IPC. So it was within the domain of the learned claim tribunal to have decided the issue No. 2 in favour of the claimant/appellant. It must be born in mind that the claim cases are to be decided summarily and there is no requirement of proof of any fact relating to accident up to the hilt as is required in any other trial of cases by a Court of law. Therefore, the learned Trial Judge ought to have considered the case of claim as laid by the claimant before him on taking into account the documentary evidence being FIR (Exbt.-1), Forwarding Report of Officer-in-Charge (Exbt.-2), Injury Report (Exbt.-3) and Discharge Certificate (Exbt.-4).

Report on cases of serious injury in respect of the admission of patient Kavita Kumari, Exbt.-3 clearly goes to show that she was admitted after the accident in the Victoria ward of SSKM Hospital, Kolkata and Discharge Certificate, Exbt.-4 reflects that Kabita Kumari, 15 years old female was under treatment in SSKM Hospital from 30.3.2001 to 16.6.2001 who suffered from fracture pelvis with degloving injury. She had to receive blood transfusion (B+ve). There was multiple units fracture. On 31.3.2001 repair of right vaginal wall laceration was done under GA. Serial wound debridement and STSG of left thigh wound anterolateral aspect of upper 2/3rd of thigh was done.

Learned Trial Judge has observed that the doctors of SSKM Hospital who examined her first and who were responsible for her treatment have not come to support her case without any explanation. We fail to understand as to why the learned Judge did not issue summon to doctors of SSKM Hospital in the interest justice. The fact cannot be lost sight of that Discharge Certificate and the Report of Admission of the victim in SSKM Hospital were on Exhibit lists and are the piece of evidence to come to a finding the extent of injury suffered by the victim who had to be hospitalised for a considerable period of three months in the said hospital. This fact is also required to be noted that when the certificate issued by Dr. P.K. Mondal was proved during trial as an Exbt.-11 there was no objection raised by the respondent. It is true that Dr. P.K. Mondal had no authority to issue the Disablement Certificate in terms of the provision of Sections 4 and 5 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 with Rule 1997, nevertheless, the fact admitted is that the certificate issued by Dr. Mondal was in terms of the Injury Report and Discharge Certificate issued by the doctor of SSKM Hospital under whose care the victim Kavita Kumari was under treatment. A case of D. Sampath Vs. United India Insurance Company Ltd. and Another, (2011) ACJ 2466 : AIR 2012 SC 544 : (2011) 4 RCR(Civil) 550 : (2011) 10 SCALE 429 : (2011) 11 SCR 420 : (2011) 4 TAC 459 : (2012) AIRSCW 287 may be applicable in a case situation like this where the doctor is cross-examined at length by learned Advocate for the Insurance Company, nothing adverse to the interest of the claimant is elicited.

Therefore, we are of the considered opinion that the learned Tribunal Judge was wrong in coming to the conclusion that no Form Comp. ''B'' has been filed and the doctors, who treated her were not examined during summary trial to support her case and regarding the applicability of the decision reported in 2001(1) T.A.C. 130 (Cal.).

It is true that no medical vouchers and corresponding prescriptions have been filed. Yet, the fact reveals from the Discharge Certificate itself that the patient was under admission for treatment for about three months in SSKM Hospital which is a Government Hospital, so question of obtaining medical vouchers and doctors'' prescription does not arise as the entire expenses are born by Government Hospital. Therefore, the learned Judge has absolutely erred in holding that the claimant had failed to produce the vouchers and prescriptions in support of her case. It may be that the pecuniary damages on account of expenditure incurred in the treatment of the patient cannot be allowed but, the claimant is entitled to damages under the head non-pecuniary damages.

We are in agreement with the contention of the learned Counsel for the appellant that the learned Tribunal Judge misconstrued the ratio of decision reported in (i) 2001 (1) T.A.C. 130 (Cal.) and (ii) 2002 (3) T.A.C. 555 (Karnataka).

In case of The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another, (2003) ACJ 1775 : AIR 2003 SC 4172 : (2005) 139 PLR 6 : (2003) 6 SCALE 16 : (2003) 7 SCC 197 : (2003) 2 SCR 14 Supp : (2004) 1 UJ 44 : (2003) AIRSCW 3797 : (2003) 5 Supreme 266 : (2003) 8 Supreme 279 the Hon''ble Apex Court held that--

"The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. The main principles of law on compensation for injuries were worked out in the 19th century, where railway accidents were becoming common and all actions were tried by the jury. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness."

We are mindful of the guidelines enumerated in case of R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, (1995) 1 ACC 281 : (1995) ACJ 366 : AIR 1995 SC 755 : (1995) 1 JT 304 : (1995) 110 PLR 298 : (1995) 1 SCALE 79 : (1995) 1 SCC 551 : (1995) 1 SCR 75 : (1995) 1 UJ 407 by the Hon''ble Apex Court which reads as under--

"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 and special damages are those which the victim has actually incurred and which is 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 non-pecuniary damages are concerned; they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of 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."

Now, bearing in mind the clenched position of law in respect of the compensation to be awarded in case of bodily injury caused in motor accident, we are of the considered view that the claimant injured is entitled to compensation under the head non-pecuniary loss.

We, therefore, are of the considered view that the Learned Judge ought to have awarded the just compensation to the claimant victim who suffered severe injury due to the said accident on the heads viz. (i) damages for mental and physical shock, pains and suffering already suffered or likely to be suffered in future, (ii) damages to compensate for the loss of amenities of life i.e. on account of injury the claimant may not be able to walk, run or sit, (iii) inconvenience, hardship, discomfort, disappointments, frustration and mental stress in life and as such we hold the impugned award is bad in law and the same is liable to be set aside. Accordingly, we set aside the impugned judgement.

Now, we determine a lump sum compensation of Rs. 1,00,000/- together with interest @ 9% thereon from the date of filing of the claim petition. The claimant/appellant has already received an amount of Rs. 25,000/- in a separate proceeding under Section 140 of M.V. Act on the principle of no fault liability as awarded by learned Claim Tribunal. Therefore, claimant Kavita Kumari shall be entitled to the compensation of Rs. 1,00,000/- (-) Rs. 25,000/- = Rs. 75,000/- together with interest @ 9% thereon from the date of filing of the claim petition which shall be payable to injured Kavita Kumari by way of a A/c. Payee Cheque within period of three months from the date hereof.

A copy of this Judgment be supplied to the respondent/the New India Assurance Company Ltd. forthwith for compliance.

Let the Lower court Record along with a copy of judgement be sent down to the Learned Court below.

Appeal is accordingly allowed, however, without any order as to costs.

Rajiv Sharma, J.

I agree.