Union of India (UOI) and Another vs Miss Savita Sharma

G.M. Mir, J.—This appeal is directed against the order of the Motor Accidents Claims Tribunal, Jammu & Kashmir, Jammu, dated January

18, 1978 5n Claim Petition No. 31 of 1973. The Claims Tribunal has awarded compensation to the extent of Rupees two lacks in favour of

respondent on different counts. Aggrieved by this order, the Union of India as well as V.V. Pillai driver of Army Vehicle have come up in appeal.

The facts of the case are very brief:

On 30th April, 1974 at about 1-30 P.M. the respondent Miss Savita Sharma alias Babli, was travelling in a tempo and was coming to Jammu

proper from Gandhinagar. When the tempo reached Dogra Chowk, a Military truck No. ZD 59611 which was being driven by appellant No, 2

rashly and negligently dashed against the tempo resulting in injuries to Miss Savita and some others in the tempo. The respondent received serious

injuries in her leg, was removed to hospital in Jammu, but on medical advice was later removed to Sardar Jang Hospital, Delhi where on 5th of

May, 1973 her right leg from knee downwards was: amputated. She remained in the hospital for about a month and had to visit the hospital twice

a week for about another month or so for purposes of training and proper utilization of the artificial leg that was made for her. She was

accompanied to Delhi by her brother and two other persons from her house-hold. Her father Atma Ram being a poor man had to borrow money

from several persons to meet the expenses on medical treatment of his daughter and also for maintaining her in and outside the hospital at Delhi for

a considerable time. In the petition Savita Sharma claims an amount of Rupees two lakhs as compensation and she also gives a break up of this

amount on different counts as follows:

i) for pain and agony: ... Rs. 40,000.00

ii) for medical expenses: ... Rs. 10,000.00

iii) for past and future enjoyment of life: ... Rs. 75,000.00

iv) for permanent disablement and disfigurement: ... Rs. 75,000.00

The appellants contested her claim before the Claims Tribunal on the grounds, firstly that the accident took place not on account of any rash and

negligent act performed by appellant No. 2 but the tempo driver was solely and wholly responsible for the accident; secondly if at all it was found

that the accident took place on account of rash and negligent act of the appellant No. 2, the act was committed during the performance of the

statutory duty In exercise of sovereign powers, and thirdly therefore the respondent was not entitled to any damages or compensation.

Originally the respondent had impleaded on non-applicants, besides the two appellants before us, the owner and the driver of the tempo as also

the Insurance company with whom the tempo in question had been insured. These three parties were deleted from the array of non-applicants by

an order of the Tribunal dated 12-2-1976. No revision or appeal was filed against that order nor the grounds of appeal before us disclose any

grievance on the part of the appellants in. this behalf. It was on 1-3-1976 that the Claims Tribunal formulated the following issues in the matter:

i) Whether the accident was caused on 30th April, 1973 due to the rash and negligent act of non-applicant No. 2? O.P. Applicant

ii) Is non-applicant No. 1 vicariously liable for the act of the non-applicant No. 2? O.P. Applicant

iii) Is the applicant entitled to recover a sum of Rs. 2,00,000/- as compensation on account of the alleged accident and If so from which of the

non-applicants? O.P. Applicant

iv) If issue No. (i) is proved whether non-applicant No. 2 was performing the Military duty of bringing the Jawans from the Railway Station. If so,

what is its effect on the application? O.P. non-applicants

v) Relief. O.P. Applicant.

As the onus to prove the main and factual issues was on the respondent, a number of witnesses were examined on her behalf. They were

Amarchand Sharma, Suresh Sharma, Kailash Chander Dr. Pachananda, Salim Massih, G.D. Sharma, Khem Chand Sharma, Abdul Aziz

constable, Puran Singh constable and Krishen Chand Sharma, Dr. K.C. Gupta was examined on commission.

On the other hand appellant No. 1 produced and examined Lt. V.S. Negi and appellant No. 2 examined himself as his own witness.

The learned Claims Tribunal has at length narrated and discussed the evidence with regard to the accident that took place. Several witnesses

have been examined by the respondent who had been travelling with her in the same tempo at the relevant time. Amar Chand Sharma, Suresh

Sharma and Kailash Chander were in the same tempo at the time of the accident. They are categorical in stating that when they were taking the

turn at the Dogra chowk, the military vehicle driven by appellant No. 2 came from another direction and in spite of the signal given by the traffic

constable on duty for the army vehicle to stop, it having failed to obey the signal of the traffic constable on duty, dashed the tempo from behind as

a result of which the respondent received leg injury, and some others also received some minor injuries. With regard to this particular matter there

was the evidence of Puran Singh traffic constable also on record. He has deposed that in spite of his signalling, appellant No. 2 who was coming at

a fairly rash speed did not stop the vehicle as a result of which it dashed against the tempo and in consequence the respondent received injuries in

her leg. We need not reproduce the whole evidence here as' we feel that it will serve no purpose. The learned Claims Tribunal has discussed the

evidence in this regard and we have no hesitation in agreeing with his findings on this point which are to the effect that the accident was caused

because of the rash and negligent driving of the military vehicle by appellant No. 2. We are unable to accept the contention raised by Mr. Salaria

that the tempo driver has not been produced as a witness and therefore, the evidence led by the respondent in the Claims Tribunal should not be

relied upon because the witnesses to the occurrence are all Interested persons as being somehow or other connected with the respondent. He

wanted us to rely on the statement of appellant No. 2 and hold that the appreciation of evidence by the Claims Tribunal was not proper. We

however, art not in a position to accept this contention as the statement of appellant No. 2 alone in this regard could not be relied upon as

conclusive with regard to the actual occurrence inasmuch as he was naturally very much interested in making the claim as he has done. The

contention that the witnesses of the occurrence were somehow or other connected with the respondent and their statements, therefore, are tainted

and one-sided and therefore, need not be relied upon, does not also merit: any serious consideration. The witnesses may be interested in the well-

being of a person who produced them but if in scrutiny it was found that there was no indication that the depositions were given because of such

interest, such depositions need not be necessarily disbelieved. If a witness is a relation of the person who produced him, his statement could not be

discarded for that reason only unless it is shown that the statement was a tainted one and was given only to see that somehow or other the person

producing him should be benefited. Besides, in this case the most important witness is the traffic constable, who could not be alleged to have

deposed as he has, because of his interest in the party producing him. He was an independant witness and nothing has been brought out in his

cross-examination to discredit him.

Mr. Salaria next vehemently argued that the Union of India, appellant No. 1, was not responsible and could not be asked to give compensation

to the respondent because the driver of the military vehicle appellant No. 2, was performing a statutory duty in exercise of the sovereign powers

delegated to him by the competent authority. He contended that the vehicle was being driven by appellant No. 2 to the Railway station to bring

therefrom Jawans of the army to the Unit headquarters. He argued that this was a statutory duty being performed by appellant No. 2 and neither

the driver nor the Union of India could be held liable to pay damages or compensation as the act of the driver during which the accident took place

was being performed by him in exercise of the sovereign power. In support of his contention he read over to us passages from a large number of

judgments of the Supreme Court as well as this Court and other High Courts in India. He in particular made a reference to Kasturilal Ralia Ram

Jain Vs. State of Uttar Pradesh, , AIR 1972 Mad 148, AIR 1967 All 327 and some other judgments of the Punjab and Haryana High Court

reported in 1974 ACJ 105 (FB), 1976 ACJ 97 He also mentioned State of Madhya Pradesh Vs. Saheb Dattamal and Others, and AIR 1970

J&K 5.

We have had an occasion and privilege to go through these judgments as well as the judgment of the Bombay High Court reported in Union of

India Vs. Sugrabai and Others, and AIR 1975 Orissa 41, AIR 1976 Raj 173. We have also gone through The State of Rajasthan Vs. Mst.

Vidhyawati and Another, and AIR 1976 J&K 80 and AIR 1962 Punj 315 (FB).

Before we proceed further it will be profitable to reproduce below for guidance a passage from Supreme Court judgment In Kasturilal Ralia

Ram Jain Vs. State of Uttar Pradesh, :

There is a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of

sovereign powers delegated to public servants and acts committed by public servants which are not referable to the delegation of any sovereign

powers. If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is was the tortious act

committed by the public servant in discharge of statutory functions which are referable to, and ultimately based on, the delegation of the sovereign

powers of the State to such public servant? If the answer is in the affirmative the action for damages for loss caused by such tortious act will not lie.

On the other hand, if the tortious act has been committed by a public servant fn discharge of duties assigned to him not by virtue of the delegation

of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of the employment is,

in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose....

On the facts of the case appearing in the above referred to case, it was held by the Supreme Court that the act of negligence was committed by the

police officers while dealing with the property of the pltff. which they had seized In exercise of their statutory powers. It was further laid down that

the power to arrest a person, to search him and to seize property found with him, are powers conferred on the specified officers by the statute and

in the last analysis they are powers which can be properly characterised as sovereign powers. In that case, the facts were that the plaintiff was

arrested by the police in U.P. on suspicion of possessing stolen property. He was searched and a good quantity of gold and silver was seized from

his person under the Code of Criminal Procedure. He was released but the gold was seized and was deposited with the Head constable of the

Malkhana. The Head constable absconded and took away the gold with him. The plaintiff brought an action for the return of the gold or in the

alternative he made e claim for damages for the loss caused to him. It was on these facts appearing in the case that the Supreme Court held that the

act of the Police Officers in searching and seizing the gold from the person of the plaintiff was an act referable to the sovereign powers delegated to

the specified police officers under the Criminal Procedure Code.

The Supreme Court in the judgment aforesaid has noted, commented upon and explained the principle of law laid down in its own earlier

judgment in The State of Rajasthan Vs. Mst. Vidhyawati and Another, . In that case the petitioner's husband and father of other petitioners Jhad

been knocked down and killed by a State Jeep Car which was rashly and negligently driven by an employee of the State of Rajasthan. The

evidence led in that case showed that the jeep was being taken at the relevant time from the repairing shop to the Collector's residence and was

meant for the Collector's use. The, claim of the petitioner was allowed by the Supreme Court in upholding the decision of the High Court of

Rajasthan. In that case the principle laid down was that the liability of the State to damages in respect of the tortious act committed by its servant

within the scope of his employment and functioning as such was the same as that of any other employer. It was alleged before the Supreme Court

that on the basis of the principle laid down in The State of Rajasthan Vs. Mst. Vidhyawati and Another, the plaintiff in Kasturilal Ralia Ram Jain

Vs. State of Uttar Pradesh, was entitled to compensation and damages from the Union of India but while repelling this contention it held:

...It must be conceded that theory are certain observations made in the case of The State of Rajasthan Vs. Mst. Vidhyawati and Another, which

support Mr. Shasta's argument and make it prima facie attractive. But as we shall presently point out the facts in that case fall in a category of

claims which is distinct and separate from the category in which the facts in the present case fall.

The Supreme Court then observed that:

...In dealing with such cases, it must be borne in mind that when the State pleads immunity against claims for damages resulting from injury causey

by negligent acts of its servants, the area of employment referable to sovereign powers must be strictly determined. Before such a plea is upheld,

the Court must always find that the impugned act was committed in the course of an undertaking or employment which is referable to the exercise

of sovereign powers or to the exercise of delegated sovereign powers, and in the case of the The State of Rajasthan Vs. Mst. Vidhyawati and

Another, , this Court took the view that the negligent act in driving the jeep car from the workshop to the Collector's bungalow for the Collector's

use could not claim such a status. In fact the employment of a driver to drive the jeep car for the use of a Civil servant is itself an activity which is

not connected in any manner with the sovereign powers of the State at all.

Having observed that the decision in The State of Rajasthan Vs. Mst. Vidhyawati and Another, must be deemed to have been founded on this

principle of law, the Supreme Court held in Kasturilal Ralia Ram Jain Vs. State of Uttar Pradesh, that such a basis being absent in the case before

it, the State was not responsible for payment of damages as the arrest of a person and to search him and seize the property found with him, are

powers conferred on the specified officers by the statute and in the last analysis they are powers which can he properly characterised as sovereign

powers.

In Union of India Vs. Sugrabai and Others, , the defendant, a servant of the Union of India while transporting a machine in the use of the army

and other military equipment by a military, truck from the military workshop to the School of Artillery by his negligent and rash driving killed a

person by dashing the truck against the cycle the deceased was riding. The Union of India wait held liable to pay compensation and damages and

its plea for exemption on the basis of exercise of sovereign powers was rejected as it was held that It was not necessary to transport the said

equipment through a military truck driven by an employee of the defence department. It was further observed that the equipment could have been

carried through a private carrier without any further material detriment to the discharge of the State of its sovereign functions of maintaining the

army and training army personnel. It was held that under the circumstances the defendant was not exercising any delegated sovereign powers of

the State when he transported the equipment in a military truck and caused the fatal accident by his negligence.

The decision in Roop Lal v. Union of India AIR 1972 J&K 22, is also based on the same principle which is that the State is not liable for a

wrongful act committed by any of its employees if the act is done by virtue of sovereign powers delegated to such public servant. In other words

the decision lays down that if the act is not referable to any delegation of sovereign powers, the State would be liable for the tortious act committed

by a public servant in discharge of his official functions.

Coming to the facts of the case at hand even if it is conceded that the driver of the truck, Pillai, was driving the motor vehicle in question to

Railway Station to bring the Jawans to unit Headquarters, it could not be said that the statutory duty he was performing was referable to the

exercise of the delegated sovereign powers. The Jawans could have been transported to the unit headquarters in a private bus or a truck or in any

other vehicle. It may be that the driver was performing a statutory duty but the performance of statutory duty alone could not entitle the Union of

India in whose employment he was to claim that the act was performed in exercise of the delegated sovereign powers. We have not been shown

any rule or law to the effect that the Jawans could be transported from one place to another only in military vehicles. Even if there may be such a

rule or law that would make hardly any difference as the act of transporting Jawans from one place to another in the ultimate analysis could be

performed by private individuals also in their vehicles. The act of transporting the Jawans from Railway Station to the Army unit headquarters

would have been the act in exercise of delegated sovereign powers only if it was shown that such an act could not have been performed by private

individuals. The performance of only such acts could be said to be in exercise of the sovareign powers or delegated sovereign powers which could

not be performed under the statute by any individual other than the person who allegedly performed the same. In The State of Rajasthan Vs. Mst.

Vidhyawati and Another, the mere fact that the jeep car was meant for the Collector's use was not held to justify the conclusion that its driver was

exercising a delegated soveorign power when he caused the accident. In a Full Bench case reported in Union of India Vs. Jasso and Others, on

the facts of the case it was held that the tort was not committed during the exercise of sovereign powers and that the Union of India was liable to

be sued in respect of tort. In that case a fatal accident was caused by the negligence of a driver of a military truck which was carrying coal to army

General headquarters in Simla. It was observed by the Full Bench of the Punjab High Court that it is difficult to see how it can possibly be held that

such a routine task as the driving of the truck loaded with coal from of depot or store to the General Headquarters building at Simla, presumably

for the purpose of heating the rooms, is something done in exercise of a sovereign power since such a thing could obviously be done also by a

private person. Similarly in Satya Wati Devi Vs. Union of India and Others, an Air Force vehicle was engaged in carrying hockey and basket ball

teams to Indian Air Force Station in Delhi to play a match against the team of Indian Air Force. At the conclusion of the match when the driver

was going to park the vehicle he caused a fatal accident by his negligence. A plea of exercise of sovereign power was raised by the Union of India

but it was rejected and the court observed that the carrying of hockey and basketball teams to play a match can by no process of extension be

termed as exercise of sovereign power.

On the basis of the circumstances appearing in the case at hand we are, therefore, of the view that the job that was being performed by

appellant No. 2 could have been performed by a private individual without any detriment to the State's functions of providing of transport facilities

to the jawans.

We therefore find ourselves unable to agree with the learned Counsel for the Union of India that during the performance of the act which

resulted in the accident and injury to the respondent, the appellant No. 2 was performing a statutory duty referable to the exercise of the delegated

sovereign powers.

There is however considerable force in the contention of the learned Counsel for the Union of India that the quantum of compensation allowed

and damages assessed by the Claims Tribunal were excessive and even beyond the claim and expectations of the respondent herself. The total

amount of Rs. Two lakhs has been allowed by the Claims Tribunal on various counts as stated above. The contention that the learned Claims

Tribunal has erred in granting such huge amounts as compensation gets support from the fact that the learned Tribunal has awarded compensation

on two counts much in excess to the claim put forward by the respondent herself. It is pointed out that in spite of the fact that the respondent

claimed only Rs. 40,000/- on account of pain and agony, and Rs. 10,000/- for medical expenses, the learned Tribunal in its generosity was

pleased to grant Rs. 50,000/- on the first count and Rs. 30,000/- on the second count. It has been contended that in awarding huge amounts on

the remaining counts the learned Tribunal has erred and. the award of the amount being excessive and unreasonable should be set aside. It is true

that the amount of compensation and damages to be awarded in cases of accidents was not a matter without difficulty and could not be arrived at

by applying any mathematical process, It was however, the duty of the Tribunals and the Courts to assess the compensation in a fair and

reasonable manner taking all the relevant facts into consideration. Ordinarily the High Court would be loath to interfere in a particular assessment of

the damage made by the Claims Tribunal in matters of accidents but if it is found that the Tribunal has erred in either awarding large or low amounts

and has fixed the compensation in a manner that may be termed arbitrary, the High Court would certainly interfere and reduce or increase the

amount of award as the case may be. The resultant misfortune in an accident of this nature notwithstanding the bad luck need not be altered into an

uncalled for advantage and benefit in favour of the person involved so as to convert the misfortune into a treasure trove.

At the time of the accident the respondent was of 18 years of age and was reading in First Year T.D.C. Since then she has passed several

other examinations and is now doing her M.A. No doubt great agony and pain must have been caused to her at the time of the accident and

thereafter. Her leg from knee downwards has been amputated. Undoubtedly it must have also caused great pain and agony to her. The very fact

that the disability was of a permanent nature would also show that her agony Is of a permanent nature. She would not be able to attend to activities

in her life which she would have liked to attend like all other girls of her age. No doubt the amputation of her leg may affect her chances of the

company of a proper spouse in marriage though the chances of a good partner In marriage are not completely diminished as feared by her learned

Counsel. It is true that the chances of her earning capacity have been reduced somewhat. She may not be able to take a job which requires

strenuous activity on her part but all the same she could take up a job of a Doctor, a nurse, a teacher, or a stenographer whereby she can

reasonably be expected to engage herself in earning activity. While granting the damages on this account, the learned Tribunal ought to have kept

this in view. The father of the respondent, namely, Atma Ram has made a bald statement that while he spent twenty-two or thirty thousand rupees

on the treatment of the respondent, his son also had to spend two to three thousand Rupees on this account. It would not be reasonable to rely on

such statements. He has stated that he obtained loans from various sources in lieu of which he executed receipts and promissory notes. He has

produced two promissory notes and one receipt and the amounts mentioned therein he claims to have been borrowed by him for the treatment of

the respondent. It has not been however, shown that these amounts though borrowed by him from various persons were actually spent on the

treatment of the respondent. Even if it is assumed for the sake of argument that all such amounts were in fact spent on medical treatment of the

respondent, the total of these amounts comes only to Rs. 7,500/-. The claim on this count for a sum of Rs. 10,000/- which has been arbitrarily

increased by the learned Claims Tribunal to Rs. 30,000/- would not appear to be reasonable and bona fide. It is admitted that the respondent had

not to undergo much expense in Jammu hospital as well as at Safdarjang Hospital in New Delhi. The service and attendance in both these hospitals

is free subject of course to small expenditure which the patient may have to undergo sometimes for purchase of some medicines, not immediately

available in the hospital. We do not feel inclined therefore, to grant any amount on expenses for medical treatment as such. However, the amounts

which have been spent for taking has to hospitals at various occasions for treatment and for amputation of the (sic) as well as for the training in the

use of the artificial leg and also the expenses which have been incurred or may be incurred in future for making and fitting the artificial leg, which

may be recurring feature in whole of her life, could and should be allowed under this count. It has been stated by her before the learned Tribunal

that she had to spend Rs. 20/- to Rs. 30/- every day 6he went to the hospital for training etc. A good amount undoubtedly must have been spent

by her father for transporting her from Jammu to Delhi and back and also on maintaining her there for a period of about two months or so. She

certainly will have to change the artificial leg from year to year to maintain its fitness in days to come. It is in the evidence that the artificial leg has

cost her Rs. 150/-. Assuming that the artificial leg would have to be replaced every year, it appears to us reasonable to grant an amount of Rs.

6,000/- on this score on the basis of 40 years of her future life expectancy. The amount spent on transport from Jammu to Delhi and back and also

on conveyance in Delhi may reasonably be assessed at Rs. 4,000/-.

(i) Thus an amount of Rs. 10,000/- in all therefore, appears to us reasonable for compensation on account of medical treatment as the medical

treatment could not be obtained without undergoing these expenses.

(ii) Damages on account of pain and sufferings could be assessed reasonably at Rs. 15,000/-.

(iii) Though, the respondent has not been completely disabled but the disability being permanent and was likely to put her to disadvantage in

comparison to others of her age, we consider that an amount of Rs. 12,000/- on this score would be proper compensation.

(iv) As we have said above, it is not likely that the chances open to her for earning decent living in future have been very much reduced by the

accident. But there is no gainsaying the fact that all avenues open to others of her education and age may not still be open to her. On this sub-count

we feel she deserves to be compensated. It is equally true to say that in days to come because of an amputated leg, the enjoyment of life shall be

greatly reduced. We, therefore, allow as compensation Rs. 15,000/-on both these sub-counts.

The respondent has filed cross-objections and has demanded interest on the amount of the award from the date of the claim and not from the

date of the order as ordered by the learned Claims Tribunal. The question of granting interest came up before this Court in a case namely, Union of

India v. P.S. Mahal, and is reported in AIR 1976 J&K 80. It has been held therein that the interest is payable from the date of claim and not from

the date of order. Relying on this judgment we hold that the learned Claims Tribunal has- erred in allowing interest from the date of order and not

from the date of the claim. We, therefore, allow interest at 6% per annum from the date of the claim. We have however, granted an amount of Rs.

6,000/- as compensation to the respondent for purchase of artificial leg in the days to come. No interest cam be granted on this score as the

amount is likely to be spent in future.

To this extent we modify the award of the learned Claims Tribunal dated 18-1-1978, and direct that an amount of Rs. 52,000/- be paid by the

appellants as compensation and damages for having caused serious injury to the respondent in the accident caused by the rash and negligent driving

of the army vehicle by appellant No. 2. We further direct that out of this amount Rs. 51,000/-shall be paid by the Union of India and balance of

Rs. 1,000/- by appellant No. 2 to the respondent. We also direct that interest at the rate of 6% per annum shall be payable and shall be calculated

for an amount of Rs. 46,000/- from the date of the claim filed by the respondent up to the date of the order. She is also declared entitled to the

costs of the petition throughout.

A.S. Anand, J.

I agree.