Sh. Chander kumar vs Shri Rajinder Kumar Gandotra and Others

Reva Khetrapal, J.—This appeal has been preferred u/s 173 of the Motor Vehicles Act, 1988 for enhancement of compensation of Rs. 80,000/- as awarded by the learned Motor Accident Claims Tribunal to Rs. 6 lakhs on account of the injuries sustained by the Appellant in a motor vehicular accident.

Briefly delineated the facts as set out in the claim petition instituted by Smt. Neelam, the wife of the Appellant is that the Appellant was hit by bus bearing No. DEP 7010, plying on the date of the accident, under the Delhi Transport Corporation. It is alleged that at the time of the accident on 10th March, 1989 the bus in question was being driven by the Respondent No. 1 near the Police Lines, on Bhama Shah Marg, within the jurisdiction of Police Station Kingsway Camp. It is not in dispute that the bus was owned by the Respondent No. 2 and insured with the Respondent No. 3-The New India Assurance Company Ltd. The factum of the accident was also admitted by the Respondents No. 1 and 2 in the joint written statement filed by them to the claim petition. Respondent No. 3, however, sought to deny the same for want of knowledge.

As stated above, initially the petition was preferred by Smt. Neelam, wife of the injured on the ground that the Appellant had sustained injuries which had resulted in his being hospitalized since the date of the accident, and he having remained intermittently in coma on account of the injuries sustained on his head, had lost all sense of proportion. An objection having been raised to the maintainability of the petition, however, the Appellant himself joined the proceedings by moving an application in this regard before the Claims Tribunal.

On the pleadings of the parties, the Tribunal framed seven issues and thereafter embarked upon the process of enquiry by examining the three witnesses summoned by the Appellant. The Respondent, however, did not choose to examine a single witness nor in fact chose to cross-examine the witnesses of the Appellant, including the Appellant himself.

After scrutinizing the evidence on record, the Tribunal came to the conclusion that there was no reason to disbelieve the testimony of PW1, the Appellant, which clearly demonstrated the gross negligence and rashness on the part of the Respondent No. 2 in driving the bus in question at the relevant time, which undoubtedly resulted in the collision. The Tribunal noted that the PW1 had affirmed that as a result of the impact, he fell down and sustained injuries on various parts of his body including his head. He testified that he had lost consciousness and was removed to the hospital where he underwent prolonged treatment. This was corroborated by PW2, his wife Smt. Neelam, and also by the voluminous records brought by the PW3, the record clerk from the LNJP Hospital, running into 32 pages which were collectively marked as Ex.PW3/A. The Tribunal further noted that the hospital record showed that the injuries sustained by the Appellant included head injury with left side intra-cerebral haematoma, left side fracture of ischiopubic remi with intracondyler fracture of tibia and fibula. The hospital record further showed that the initial treatment was taken by the Appellant in the LNJP Hospital from 10th March, 1989 to 14th April, 1989. Significantly also the record of the LNJP Hospital showed that the Appellant was in an unconscious state most of the times during his hospitalization in the said hospital.

After noticing that the injuries sustained by the Appellant were quite dangerous which could even have proved fatal and that the Appellant had to undergo a long spell of coma during which two surgical procedures were carried out and that he had undergone protracted treatment, the Tribunal awarded to the Appellant the sum of Rs. 80,000/- towards compensation in the following manner:

Loss of earnings : Rs. 25,000/- Future prospects : Rs. 10,000/- Medical expenses, Diet, Conveyance etc. : Rs. 15,000/- General Damages : Rs. 30,000/- _________________ Total Rs. 80,000/- _________________

It may be noted that the Appellant had claimed that he was a self-employed businessman engaged in trading and was earning about Rs. 5000/- per month on the date of the accident. This fact was affirmed by the Appellant on oath. No material to the contrary having been brought on record by the Respondents and the Respondents, in fact, having chosen not to cross-examine either the Appellant or his witnesses, the Tribunal proceeded to assess the loss of earnings of the Appellant for a period of about five months, i.e. from the date of the accident till some time after the filing of the petition on the premise that the Appellant was still under treatment at the time of the institution of the petition. By this process of reasoning, the loss of earning was calculated to be in the sum of Rs. 25,000/- (i.e. Rs. 5000/- x 5 months).

As regards the future prospects, the learned Tribunal noted that as the injuries sustained by the Appellant were quite serious, in fact dangerous, and included injuries on the head, which resulted in the Appellant having remained in coma for a long time, this was bound to adversely affect his future prospects. In these circumstances, the Tribunal awarded a compensation of Rs. 10,000/- for the loss of future prospects.

As regards the medical expenses, diet and conveyance, a lumpsum amount of Rs. 15,000/- was awarded by the Tribunal after again noting that the injuries were serious in nature. A further sum of Rs. 30,000/- was awarded towards the general damages on account of pain and suffering, etc.

The contention of Mr. Navneet Goyal, the learned Counsel for the Appellant is that the amount awarded by the Tribunal is too meager to qualify for being called just and fair to the injured. Mr. Goyal contended that the medical evidence on record proved by PW3 (32 sheets exhibited as PW3/A) conclusively establishes that the nature of the injuries sustained by the Petitioner was "dangerous". The Appellant had remained in coma for one full month. Apart from sustaining head injury, he had sustained four fractures on his left foot resulting in two surgical procedures being conducted and the insertion of a rod in his foot. The Appellant had testified that his right side was paralyzed, that he could not sit for long hours nor he could drive a two-wheeler scooter. The aforesaid testimony of the Appellant was not subjected to cross-examination. PW2 in her statement testified that after remaining for a day in the Hindu Rao Hospital, the Appellant had been shifted to the LNJP Hospital where he remained unconscious for 29 days, as blood had clotted in his brain. She further testified that she had spent Rs. 1 lakh on his treatment in the hospital, that he was rendered mentally unfit and was still under treatment and was incapable of carrying on the work which he was doing, namely, that of watch repair. PW2 further testified that the Appellant was taken by her to Sir Ganga Ram hospital and then to Sehgal Nursing Home for treatment. None of these assertions had been disputed by the Respondents.

Mr. Pankaj Seth, the learned Counsel appearing for the Respondent No. 3-Insurance Company, however, sought to support the award on the ground that the learned Tribunal had awarded compensation on the basis of the documentary evidence on record and the same was just and fair. Mr. Seth submitted that there was no documentary evidence to show that the Appellant had been permanently disabled by the accident and thus, the enhancement of compensation was not warranted.

Having considered the matter from all angles and also the fact that the Appellant has not placed on record any certificate from a government hospital to show that he is suffering from any permanent disability, I am of the view that the amount of compensation awarded by the Tribunal, is nevertheless, on the lower side. The learned Tribunal, has, in the course of rendering the award observed at several places that the nature of the injuries sustained by the Appellant were serious and even dangerous in nature to which he could have easily succumbed. This being so, and the Appellant having stated on oath in the witness box that he could neither sit for long nor drive a car nor carry on his normal work, the learned Tribunal ought to have taken all these circumstances into account, more so, as they have emerged unrebutted on the record. A serious head injury with left side intra-cerebral haematoma, resulting in the patient going into coma, coupled with the fact that the Appellant admittedly underwent protracted treatment in LNJP Hospital, Ganga Ram Hospital and Sehgal Nursing Home, even though the same is not supported by a permanent disability certificate, must have had serious repercussions with regard to the earning capacity of the Appellant as also his day-to-day life. Thus viewed, I am inclined to enhance the compensation as under:

Loss of earning : Rs. 60,000/- ( Rs. 5000/- x 12 months) Future Prospects : Rs. 25,000/- Medical Expenses : Rs. 15,000/- Diet : Rs. 10,000/- Conveyance : Rs. 10,000/- Pain and suffering : Rs. 50,000/- Loss of amenities of life : Rs. 50,000/-

In view of the aforesaid discussion, the Appellant is held entitled to a total compensation of Rs. 2,20,000/- (including the interim award, if any, already paid) along with interest @ 12% per annum from the date of the institution of the petition till the date of realization. The award dated 12th February, 1997 is modified to the aforesaid extent.

The appeal stands disposed of accordingly.