In Care Of Flag Officer vs Age 20 Years
2009 Latest Caselaw 1 Bom

                                         1


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           CIVIL APPELLATE JURISDICTION




                                                                                  
                            FIRST APPEAL NO. 752 OF 2002




                                                          
Union of India                                        ]

In care of Flag Officer,                              ]




                                                         
Commanding in Chief Head Quarters,                    ]

Shahid Bhagat Singh Road,                             ]

Bombay - 400 023.                                     ]             .. Appellant




                                             
                     Vs.

Gagandeep S/o.Jasbir Singh
                                  ig                  ]

Age 20 years,                                         ]
                                
Residing at R/30-G B,                                 ]

Navy Nagar, Colaba,                                   ]
           


Bombay - 400 005.                                     ]              .. Respondent
        



                                              ...

Mr. D. A. Dubey for the Appellant - Union of India.





Mr. S. A. A. Nagvi for the Respondent.



                                         CORAM : S. A. BOBDE &





                                                    S. J. KATHAWALLA, JJ.

DATED : DECEMBER 5, 2009.

ORAL JUDGMENT (Per S. A. Bobde, J.)

This is an Appeal against the Judgment of the Motor Accident Claims

Tribunal, Mumbai, dated 23.10.2001, in Application No. 2490 of 1995, for

compensation under section 166 of the Motor Vehicles Act (hereinafter "the Act").

The respondent had claimed Rs. 15, 00, 000/- as compensation before the Tribunal.

The learned Tribunal held that the Appellants are liable to pay compensation of a

total sum of Rs.11, 00, 000/-, inclusive of Rs.25, 000/- to be paid under section 140

of the Act, to the claimant i.e. Respondent - Gagandeep, with interest at the rate of

9% p. a. from the date of the application till its realization.

2. The Respondent filed the aforementioned claim for compensation with

respect to all the injuries he suffered in an accident with the vehicle belonging to the

Indian Navy (Naval Truck No. 92 - D - 92875 - MR - 251), on 20th May, 1995.

According to the Respondent, the vehicle was being driven in a rash and negligent

manner by the driver, as a result of which he came under the vehicle and lost his

right leg below the knee. From the evidence it appears that the accident took place

as follows:

"Respondent was riding a bicycle on the left side of the road, behind

a Mini Bus. The Appellant's truck was coming towards the Mini Bus

from the opposite direction. The offending truck came upon the

respondent and the respondent fell down in the process of averting

the accident; his bicycle fell on his body. He was struck and was

dragged up to a distance of 20 feet and thereafter the offending

vehicle stopped."

3. The appellant contends that the accident took place because the respondent

was trying to overtake the Mini bus, without care for oncoming traffic, and hence is

himself negligent. The Respondent has denied the suggestion. The driver of the

offending vehicle, who was in the Indian Navy's employment at the time, entered

the witness box, before the Tribunal, and deposed that the Respondent was trying to

overtake the Mini bus from the driver side of the bus and came under one of the rear

right wheels of the offending truck. After considering the evidence, the Tribunal

came to the conclusion that the offending truck was being driven at a high speed and

in a rash and negligent manner, on the narrow road. The Tribunal rightly referred to

the brake skid marks of the truck which were measured to be about 24 feet long, as

per the panchanama. Clearly, it can be inferred from such a long skid mark that the

heavy truck was being driven at a high speed. More so, the fact it was being driven

rashly, negligently and at an excessive speed can be inferred from the fact that the

Respondent was dragged for a distance of about 25 to 30 feet, while caught in the

wheel of the truck, before it stopped. The Tribunal has, in our opinion, rightly

concluded that had the driver of the offending truck not been driving at such an

excessive speed, he could have immediately stopped the offending vehicle, on seeing

the Respondent come towards him from the opposite direction, thereby avoiding the

accident. The fact that the driver was not attentive while driving the truck, is

apparent from his deposition before the Tribunal, where he said that he did not see

the Respondent, until he had fallen from his bicycle. The driver further deposed that

he saw the Respondent only in the rear view mirror, after the Respondent's leg was

already stuck under the right rear wheel. The learned counsel for the Appellant

submitted that the offending truck cannot be said to have been driven in a rash and

negligent manner and, in fact, the driver stopped the vehicle and took the boy to the

hospital. We cannot accept the contention that if the driver took the boy to the

hospital, it leads to the inference that the driver was not negligent in driving the

vehicle. In fact, it is the duty of every citizen to help a motor accident victim, more

so when one is the cause of the accident, or is involved in that particular accident; as

was pointed out by the Hon'ble Apex Court in Parmanand Katara v. Union of

India [AIR 1989 SC 2039]. The Act itself, in section 137, requires the driver, or

others involved in the accident to immediately assist the victim and report the matter

to the police, and failure to do so is punishable under section 187 of the Act. For

deciding the negligence of the driver, we must have regard to the other evidence,

which helps us to establish liability. We are hence of the view that the accident took

place as a result of the rash and negligent driving of the offending truck, based on

the skid marks and inattentiveness of the driver, which show that he was driving

rashly at an excessive speed on the narrow road.

4. As regards, injury for which compensation has been awarded, there is no

dispute that the Respondent's right leg had to be amputated upto the knee. The

surgery was carried out at the Naval Hospital, Pune, on 1.6.1995, after which he was

shifted to the Artificial Limb Center, where he was undergoing treatment, even until

the date of filing of the application before the Tribunal. There is evidence to show

that even after discharge from the Artificial Limb Centre, the injuries on his right leg

were bleeding. The blood had started oozing from the stretched skin and the injuries

had not healed completely. In fact, at one stage, he had to stop using the artificial

limb provided to him, because of discomfort and difficulty, and was forced to use

crutches to move about. The Applicant thereafter again sought medical opinion as

regards his condition and finally underwent a second operation, on 31.12.1999,

where his right leg was amputated further by an additional inch.

5. The medical evidence of Dr. Pawan Sarin (P. W. No.4), shows that the

Respondent suffered fractures of the pelvis and of the right leg, due to which he had

to be operated upon immediately at Ashwini Hospital, where he was first admitted

following the accident. The other doctors, produced as witnesses, also confirmed,

before the Tribunal, that the right leg was amputated and the subsequent treatment in

different hospitals. The Tribunal kept in mind the fact that the Respondent was 15

years old on the date of the accident. As a result of the accident the Respondent is

compelled to go through his entire life without his right leg. Due to the injuries

suffered, he has lost out in fulfilling his ambitions of serving the country, as the

prospect of admission to the Navy is ruled out, since he has been rendered unfit for

serving in the defence forces. The Tribunal hence granted compensation of a total

sum of Rs.11, 00, 000/-.

6. We find that this case is governed by the well settled principles of law in the

matter of granting compensation. Perfect compensation is hardly possible, more so

in claims of injury and disability. As rightly pointed out in H. West & Sons Ltd. v.

Shepherd [(1958) ACJ 504 (H. L)]:

"...money cannot renew a physical frame that has been battered."

However, making a monetary assessment of the injury suffered is the only

process devised to compensate the victim. Section 168 of the Act requires that the

Tribunals constituted under the Act determine a 'just' compensation. The decision of

the Hon'ble Apex Court, in Divisional Controller, KSRTC v. Mahadeva Shetty

[2003 ACJ 1775 (SC)] may be mentioned here:

"It has to be borne in mind that compensation for life and limb can

hardly be weighed in golden scales...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 the 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....

...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 the use of the expression, 'which

appears to be just', a wide discretion is vested on the tribunal, the

determination has to be rational, to be done with a judicious approach,

and not the outcome of whims, wild guesses, and arbitrariness." (para

15)

7. In the circumstances, we find that the compensation that has been awarded by

the Tribunal under the following heads is reasonable :

1) Permanent disability                          Rs. 5, 00, 000/-


2) For loss of comforts                          Rs. 3, 00, 000/-
           
        



3) For pain and sufferings                       Rs. 3, 00, 000/-


                                              -------------------------





      Total                                       Rs. 11, 00, 000/-


                                              ================

8. We feel it is not possible to treat the findings of the Tribunal as erroneous.

The Appellant's contended that the sums awarded for pain and sufferings and loss of

comforts were excessive. We do not agree with this contention. The respondent was

a perfectly fit and healthy young boy of 15 years at the time of the accident, after

which he had to go through the pain of several surgeries, and also the amputation of

half his right leg. Subsequently, he faced the discomfort of walking with crutches.

He is now forced to use an artificial limb for the rest of his life. He cannot do many

physical activities including sports etc. due to his condition. Most importantly, he

has lost out on the prospect of fulfilling his ambition to join the Navy and serve the

country. It is settled that pain and sufferings includes not only physical pain, but also

mental trauma. Having regard to the physical pain undergone due to the accident,

and the mental pain caused by the loss of a limb, loss of enjoyment of youth, and a

destroyed ambition; we feel that the amount awarded by the Tribunal under these

head of 'pain and sufferings' is sufficiently justified.

9. In fact we find that the Tribunal has adopted a balance approach in

determining the final award, where it has taken into consideration that the Applicant

has done some course in Computers from N. I. I.T. and is preparing for his degree,

which is to be obtained by correspondence. The manner in which the Respondent has

deposed before the Tribunal shows that he is otherwise fit both mentally and

physically, aside from the injuries caused by the accident. The Tribunal has therefore

observed that it cannot be said that the Respondent has lost all opportunities to make

a living. Accordingly, the Tribunal did not grant compensation on the basis of loss of

opportunity/loss of future income to the Respondent. In the result, we find no reason

to interfere with the order of the Tribunal.

10. The Appeal is dismissed. No order as to costs.

11. The Respondent shall be entitled to withdraw the amount deposited by the

Appellants towards compensation. Apparently, the Respondent's father had given

an undertaking, dated 6.2.2003, that he will not withdraw his terminal benefit from

the Navy till the disposal of the Appeal by way of security for the compensation

withdrawn by the Respondent. Respondent' father is hereby discharged from the

undertaking.

ORDER ACCORDINGLY.

(S. A. BOBDE, J.)

(S. J. KATHAWALLA, J.)