Som Raj vs State of Punjab and Others

Amarjeet Chaudhary, J.—The claim in appeal Is for enhancement of compensation.

The appellant-claimant Som Raj was a passenger of Bus No. PUC-7207 of Punjab Roadways, Chandigarh Depot. When it had crossed village Bhankharpur, a truck approaching from its rear side tried to over-take it. The Driver of the Bus, in order to provide space enabling the truck to cross the Bus, took his vehicle to the extreme left of the road. Two left side wheels of the "Bus were brought on the berm of the road The Driver of the Bus had not slowed down the Bus. On reaching the berm, the Bus lost his balance and turned turtle. The Bus was loaded with passengers. The appellant-claimant Som Raj and some other passengers received injuries. He suffered fractures on both his lower arms. The appellant-claimant was taken to primary Health Centre, Dera Bassi, where he was given first aid and later on he was shifted to P.G.I. Chandigarh for treatment. He remained as Indoor Patient in Nehru Hospital attached with PGI from 18.10.1983 to 26.10.1983. Both his arms were put in P. O. P. case which was removed on 2.12 1983.

The appellant-claimant filed claim application u/s 110-A of the Motor Vehicles Act, 1939 in the Court of Motor Accident Claims Tribunal, Patiala, (hereinafter referred to as the Tribunal). The Tribunal vide its award dated 1.3.1985, held that the claimant was entitled to Rs. 23,000/- as compensation from Mohinder Singh, Driver of the Bus and his employer, State of Punjab. The claimant was also granted interest @ 9% P.. A. On the amount of compensation from the date of filing of the claim petition.

Being not satisfied, the appellant-claimant has filed this appeal for enhancement of compensation.

The appellant has impugned the award of the Tribunal on the ground that it has altogether ignored the principles for calculating the amount of compensation in personal injury cases. The appellant, who was a Govt. Officer, received very serious injuries and Dr. G. S. Gill of P. G. I., Chandigarh, A. W. 3, opined that he shall have permanent disability of 30 per cent of two arms. The Tribunal completely ignored the serious nature of the injuries. While awarding compensation, the Tribunal also ignored that his career is at stake as he will have to face difficulty in writing and eating. He shall not be able to drive even a scooter for the rest of his life.

The Counsel for the appellant contended that Tribunal has not granted sufficient compensation for pain and suffering and the compensation awarded on this account is inadequate. No compensation has been awarded for the expenses incurred by the appellant for his treatment. The Counsel further argued that the Doctors at Chandigarh had advised for the operation and this fact has totally been ignored by the Tribunal.

The other contention raised is that the Tribunal has erred in awarding interest @ 9% but it should have been allowed @ 18% P. A. from the date of the claim petition.

The learned Additional Advocate General appearing for the State of Punjab contended that the appellant claimant has been awarded sufficient compensation and there is no further scope for its enhancement.

In the instant case, the occurrence of the accident and the mannerism in which the appellant sustained injuries is not in dispute. The finding of the negligence recorded, against the respondent Bus Driver does not call for any interference in the appeal.

Dr. S. S. Gill, Lecturer Orthopaedic Department, P. G. I., Chandigarh while appearing as AW-3 stated that the patient Som Raj had inter-condylar fracture of his left numerous and fracture of radial head and ulna of the right side. Patient was operated on 22.10.1983 on the left side. He was put under plaster of both the upper limbs. The patient was discharged on 25.10.1983. This witness further stated that the patient had been visiting thereafter continuously. He had also examined the appellant Som Raj clinically in order to judge his permanent disability which was assessed as 30%. He gave the following reasons to arrive at this conclusion :-

"On the left side, his elbow movements are from 20 degrees to 140 degrees and he is having terminal restriction of supination and pronation. On right side his movements are from 40 degrees to 120 degrees. His elbow is fixed in mid prone position and there is no movement of supination and pronation The patient is having difficulty in lifting his arm over head. He has difficulty in eating Indian Style of food. He has difficulty in combing drinking water with both hands and he is having pain in writing. The patient may be having any difficulty in performing sexual intercourse."

The main question which arises for consideration is with regard to quantum of compensation payable to the appellant-claimant keeping in view of the nature of injuries sustained by him and his permanent 30% disability.

In Swatantra Kumar Lamba and Anr. v. Sheila Didi (1987-2) 92 P. L. R. 1, the claimant had permanent disability of 20%. His movements of ankle were limited and dorsification was limited to half. The injured claimant found it difficult to stand on tip toes. This Court in that case awarded a sum of Rs. 56,000/- for medical expenses and transportation, Rs. 48,000/- for a special diet, Rs. 20,000/- for loss of income, Rs. 96,000/- for loss of earning capacity, Rs. 40,000/- for pain, suffering and loss of pleasures of life, Rs. 59,000/- for attendant and gratuitous services and Rs. 1,500/- totalling Rs. 1,73,800/-.

In Tejinder Singh Gujral v. Inderjit Singh and Ors. (1987) 92 P.L.R. 417, the appellant-claimant, who was an Advocate had fracture of five ribs, on the chest which got mal adjusted during replacement operation, cervical spine suffered serious damage, despite repeated operations continued to give pain which was life long; prolonged treatment at many hospitals. Numbness in arm travelled upto little finger. In appeal the compensation for pain and suffering was enhanced from Rs. 50,000/- to 1,00,003/- by this Court. Besides this, a sum of Rs. 57,600/- was allowed for services of attendants.

In Santokh Singh v. Ajay Diwan 1988 A. C. J. 617, the claimant had disability between 5 to 20%. This Court, in appeal, allowed. Rs. 1,75,000/- as general damages for pain and suffering, loss of enjoyment of amenities of life and disabilities and Joss of earning capacity, Rs. 5,800/- for medical expenses, Rs. 5,000/- for special diet, cost of attendant and conveyance expenses. In addition to it, a sum of Rs. 10,000/- was allowed for future medical expenses.

On the consideration of the matter, and specially keeping in view the decisions of this Court in Swatantra Kumar Larnba, Tejinder Singh Gujral''s and Santokh Singh''s cases (supra), I am of the view that the appellant-claimant has not been awarded sufficient compensation for pain and suffering, permanent 30% disability and special diet. The Tribunal has not granted fair interest to the claimant. Dr. S.S. Gill, AW-3, who had clinically examined the appellant, had adjudged 30% disability. The appellant has difficulty in combing of his hair and even he cannot drink water with his both hands. He is also facing difficulty in writing.

During the course of arguments, on a Court question, the claimant, who has now got himself enrolled as an Advocate, has expressed his inability to drive the scooter as both of his elbows and forearms have been impaired due to the accident. On right side, his elbow movements, are from 40 degrees to 120 degrees. His elbow is fixed in mid prone position and there is no movement of supination and pronation. Dr. S. S. Gill, AW-3, had also stated that the appellant may be having difficulty in performing sexual inter-course.

In view of the ratio of the judgments (supra), and taking into consideration appellant''s permanent disability, the appellant is awarded Rs. 25,000/- for pain and suffering and Rs. 30,000/- for permanent disability in addition to what has been awarded by the Tribunal. The appellant shall also be entitled to 12% interest instead of 9% as awarded by the Tribunal on the compensation awarded from the date of filing of the claim petition.

The appeal is allowed with costs. Counsel fee is assessed as Rs. 2,000/-.