Sh. Anil Kumar Sharma, Amit Kaushik and Sumit Kaushik vs Sh. Amod Kumar, Sh. Mohan Singh and National Insurance Co. Ltd.

V.B. Gupta, J.—The present appeal u/s 173 of the Motor Vehicles Act, 1988 (for short as "Act") has been filed on behalf of the Appellants seeking enhancement of the compensation as awarded by judgment dated 26th August, 2006 passed by Sh.A.S. Jayachandra, Presiding Officer, MACT, Delhi for a sum of Rs. 3,66,801/- along with the interest @ 7.5% p.a. except for the period not specifically allowed.

The brief facts of this case are that the appellant along with his wife and children were going to Mainpuri, U.P. from Ghaziabad, U.P. in a maruti car bearing No. DDC-4215 on 8th March, 1998. When the vehicle reached Village Jamalpur, a truck came from the opposite side and the truck driver wanted to save stray animal and applied sudden brakes. The car was going on the left side and was crossing the truck. It is also alleged that a tractor was also coming behind the truck. When the truck driver applied the brakes, respondent No. 1 who was driving tractor bearing No. UP-84-755, moved towards the right hand side and negligently struck the maruti car of the appellant which was being driven by him. There was a head-on-collision. The maruti car was badly damaged and the inmates of the car sustained injuries. Wife of the appellant No. 1went into coma. Later on she was treated in various hospitals and ultimately she died on 23rd October, 1998.

Devi Singh was the owner of the tractor, who died during the pendency of the proceedings pending before the trial court and his legal heirs who is respondent No. 2 herein the appeal was impleaded. The offending vehicle was insured with respondent No. 3.

Respondents 1 & 2 filed the written statement in the trial court.

Respondent No. 1 in his written statement has stated that this respondent did not cause the alleged accident. The true facts are that respondent No. 1 was much behind the truck and the appellant was driving the maruti car at a very fast speed. After crossing the truck, the appellant without caring for the traffic coming from the front side on the road, started overtaking a truck which was proceeding ahead of him and hence dashed against the tractor of the answering respondent with force as a result of which both the maruti car as well as tractor of the answering respondent were damaged badly. Thus, the answering respondent did not cause alleged accident and it was appellant No. 1 who has caused the accident.

Respondent No. 3-Insurance Company has admitted the fact that the tractor in question was insured with it.

The notice of this appeal was issued to the respondents and all the respondents were duly served. On 19th March, 2007 counsel for respondents 1 & 2 had put in appearance. Thereafter matter was adjourned to 18th September, 2007.

On 18th September, 2007, none appeared for the respondent and matter was adjourned to 15th April, 2008.

Since 15th April, 2008 was declared as a local holiday, the matter was taken up on 21st April, 2008. On that date also, none appeared for the respondents and the matter was adjourned to 26th August, 2008.

On 26th August, 2008, counsel for the appellant was present but as none appeared on behalf of the respondents, the matter was passed over and on the second call again, none appeared for the respondents and as such arguments advanced by learned Counsel for the appellant have been heard.

One of the plea taken by the learned Counsel for the appellant is that the accident took place due to rash and negligent driving on the part of the tractor driver and the Tribunal has wrongly attributed contributory negligence to the appellant to the extent of 30% and had deducted 30% of compensation amount for the negligence on the part of the appellant.

Other contention is that, the appellant had to employ a domestic help/Aya at his house for doing the household work till the deceased remained under coma at a monthly salary of Rs. 1,000/- and after the death of the deceased, the appellant has to employ another domestic held/Aya for taking care of minor children and for doing the house hold work on a monthly salary of Rs. 1,500/- for a period of 21/2 years. The Tribunal has not granted any amount on this account.

Further, no amount of compensation towards pain and sufferings has been awarded, though the deceased remained admitted in various hospitals from 8th March, 1998, (the date of accident) till 23rd October, 1998, (the date of her death). During the 71/2 months period, the deceased had undergone great pain and sufferings, but no compensation has been awarded by the Tribunal on this count.

PW1 has claimed that he had spent around Rs. 1.5 Lac on treatment of his wife between 08.03.98 till 23.10.98. He produced the consolidated bill for a sum of Rs. 1,79,445/- but the same is supported by 14 original bills only, rest of the bills were not proved for want of originals.

The total sum of the original bills worth Rs. 74,001/-, which includes the expenses proved by the Ex.PW2/A to C and Ex.PW4/1 to 4/3, were allowed by the Tribunal.

PW2, Dr. Ashok Kumar has deposed that Meena Sharma was treated by him between 01.04.1998 to 08.06.1998, 10.06.1998 to 02.08.1998 and 16.08.1998 to 04. 10.1998. During the period of treatment she was unconscious. However in his cross-examination, he admits that he was the family physician and his treatment was not based on the opinion of any Neuro-Surgeon.

PW3, Dr. Rashmi Jain deposed that the deceased was treated for genetic problems from April, 1998 to October, 1998. She did not produce any records.

Negligence is nothing but a failure to observe precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. Not only commission of an act but also an omission to do something which a reasonable man would do or is obligated to do amounts to negligence. Therefore, negligence does not always mean absolute carelessness, but also includes a failure to observe the degree of care and precaution and vigilance duly required under the circumstances which justly warrant. Negligence is a relative and comparative term. No rigid formula and no mathematical ratio could be laid down as to what constitutes negligence under particular circumstances of the accident, but to determine what an act would amount or would not amount to negligence, the test would be whether a prudent and reasonable man would cause damage. In other words, not only an act but also an omission to do an act which the circumstances warrant from a reasonable man''s point of view and which the law obliged would constitute negligence.

Contributory negligence has been explained by the Apex Court in The Municipal Corporation of Greater Bombay Vs. Shri Laxman Iyer and Another, , as under:

To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not. The omission to do what the law obligates or even the failure to do anything in a manner, mode or method envisaged by law would equally and per se constitute negligence on the part of such person. If the answer is in the affirmative, it is a negligent act. Where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of the other''s negligence. Whichever party could have avoided the consequence of the other''s negligence would be liable for the accident. If a person''s negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other. Contributory negligence is applicable solely to the conduct of a plaintiff. It means that there has been an act or omission on the part of the plaintiff which has materially contributed to the damage, the act or omission being of such a nature that it may properly be described as negligence, although negligence is not given its usual meaning. (See on Negligence, 3rd Edn. Para 328). It is now well settled that in the case of contributory negligence, courts have the power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damage are reduced to such an extent as the court thinks just and equitable having regard to the claim shared in the responsibility for the damage. But in a case where there has been no contributory negligence on the part of the victim, the question of apportionment does not arise.

The relevant findings of the Tribunal on the point of negligence are as under:

Excepting the evidence of PW1 and R3W2 who is the driver there are no other witnesses who can speak about the manner of accident and the negligence. PW1 attributed negligence to the tractor driver respondent number 1. Respondent number 1 of course did not choose to lead the evidence after taking a plea of negligence on the part of Car driver, but examined on behalf of respondent 3. I have gone through Ex.P-1 the FIR which was lodged by PW1 himself. In the FIR the mention of the stray animal sneaking into the road is not mentioned. In the oral testimony, PW 1 stated that there was a truck coming in opposite direction followed by the offending tractor. The truck driver wanted to avoid the stray cattle being mowed down. The tractor was following it but over took the truck to hit the Car of PW 1. In the cross-examination by respondent number 3, it is clearly admitted that the accident occurred due to the buffalo coming from opposite direction. This factum can not be ignored while assessing the negligence of the offending vehicle. It is also to be borne in mind that PW 1 had noticed the cattle sneaking into the road and the truck avoiding it. He also deposed that the tractor was following the truck. In such a situation, it is common prudence that the driver of such a vehicle noticing the events ahead on the road should be highly cautious in responding to the events occurring as a sequel as any prudent driver ought to have reacted. In the above case, PW 1 who was driving the Car in which the deceased was travelling admits in cross-examination that the accident occurred because of the stray cattle. This admission itself can not be treated as the sole reason for the accident. Viewing from the oral testimony, I find that the offending tractor was rash enough to have over took the truck without caring for the flow of traffic from opposite side alongside the lack of precautionary responsive action on the part of the PW 1 who was driving the Car also. The evidence of R3W2 is also of some relevance. He deposed that he applied sudden brakes of his tractor while a truck over-took him and imputed negligence on the part of the Car driver. He denied the negligence. This witness was cross-examined on behalf of the petitioner and he also admits that a buffalo had come in front of the truck, the truck driver applied the brakes. He denied the suggestion that he was driving with heavy speed. The evidence of R3W2 shows that the accident occurred because of a stray cattle. This evidence also fortifies my opinion that the accident is not because of the total negligence on the part of the respondent number 1.

In civil / compensation cases one is concerned with preponderance of probabilities and not proof beyond reasonable doubt. As a matter of fact, except PW 1 and R3W2, there are no other witnesses who can speak about the manner of accident and negligence. PW 1 stated that there was a truck coming in opposite direction followed by the offending tractor. The truck driver wanted to avoid the stray cattle being mowed down. The tractor was following it but over took the truck to hit the Car of PW 1. In the cross-examination by respondent number 3, it is clearly admitted that the accident occurred due to the buffalo coming from opposite direction.

Thus, in the facts of the present case, the Tribunal rightly assessed 30% of negligence on the part of the of the appellant No. 1/car driver and considered the contributory negligence while awarding compensation.

As regard the contention of learned Counsel for appellant about employing one housemaid consequent to the accident for doing house hold work till deceased remained under coma and thereafter for looking after the children, in this respect PW-5 housemaid has deposed that she was employed for 21/2 years and have received Rs. 1,500/- per month.

The trial court has granted a sum of Rs. 18,000/-towards expenses of household maid to appellant No. 1 in connected matter which is a claim for compensation filed by appellant in respect of injuries received by him 25. When the PW-5 has deposed that she had been employed for 21/2 years, I fail to understand as to on what basis the trial court has granted compensation under this head for period of one year only.

Under the circumstances, as the housemaid was employed for 21/2 years on a monthly salary of Rs. 1,500/-, the total amount under this head comes to Rs. 45,000/-. Since Rs. 18,000/- has already awarded to appellant No. 1 in connected matter, an additional sum of Rs. 27,000/- is awarded as compensation to the appellants qua expenses of housemaid.

Next plea is that no amount of compensation towards pain and sufferings has been awarded by the Tribunal.

In this regard, decision of Apex Court i R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, laying the broad principles may be referred to, in which it was held that:

Broadly speaking, while fixing the 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 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.

The accident in the present case has taken place on 8th March, 1998 and deceased Meena Sharma remained admitted in various hospitals and later on went in to coma and died on 23rd October, 1998. During this period, she had undergone lot of pain and sufferings and no amount towards pain and sufferings has been awarded by the Tribunal.

Thus, in view of the above discussion, a sum of Rs. 48,000/- is awarded to the appellants on account of pain and sufferings in addition to compensation awarded by the Tribunal.

Accordingly, the order passed by the Tribunal is modified to the extent that the appellants are entitled to further compensation of Rs. 75,000/- in addition to compensation as awarded by the Tribunal and on this additional compensation, the appellants are entitled to interest @ 7.5% per annum from the date of filing of the petition, that is, with effect from 9th April, 1999 till realization.

Accordingly, the appeal stands disposed of.

No order as to costs.

Trial court record be sent back forthwith.