Delhi High Court
Esha Ghoshal vs Union Of India (Uoi) on 12 July, 1985
Equivalent citations: 2 (1986) ACC 155
Author: S Wad
Bench: S Wad
JUDGMENT
S.B. Wad, J.
1. FAO 201/73 is filed by the claimant Ms. Esha Ghoshal for claiming Rs. 25,000/- as the compensation. The Tribunal had awarded only Rs. 11,881.50. FAO 226/73 is a cross-appeal by the Union of India, disclaiming the liability.
2. Claimant Esha Ghoshal was traveling in a three-wheeler scooter No. DLR 4471 on 7-9-66. The Government truck No. DLG 7604 was transporting telephone posts from the store at Vinay Nagar to the SDO's godown near Connaught Place Exchange. The accident took place when the truck reached the crossing of Mehrauli Road and Lodhi Road, in front of the Safdarjung Tomb. According to the claimant the truck in question was being rashly and did not slow down at the crossing and hit against the three wheeler. On the other hand, the contention of the respondents was that the three-wheeler scooter came from the Lodhi Road side suddenly and hit against the truck, in spite of the fact that the truck swerved to the left to avoid the accident. The claimant has examined Shri Ganshyam PW/1 and Shri Prahlad Singh PW/2. She has also examined herself. The respondents have examined Mr. Bihari Lal RW/1 and Mr. Ramnath RW/2 in support of their version. After going through this evidence on record, the Tribunal found the truck No. DLG 7604 guilty of rash and negligent driving. The tribunal noted that after the impact the truck moved to the left and mounted on the road divider and stopped after stricking against the tree situated in the centre of the road divider. This fact was established by the photographs. The Tribunal held that this showed that the truck was being driven at a high speed and the driver was not in control of the vehicle at the time of accident. The Tribunal then rejected the plea of the Union of India that the truck in question was engaged in the discharge of a sovereign function. After going through the evidence on record myself, I am satisfied that the Tribunal's finding is eminently correct. There is no merit in the plea of sovereign immunity by the Union of India in this case as the truck in question was merely transporting telephone posts. The Union of India is, therefore, liable to pay the compensation to the claimants.
3. The claimant suffered a fracture of the left femur. She remained in hospital for 21 days. She was operated upon in a Nursing Home and a surgical pin was inserted in her leg. She was operated upon the second time in August 1967 at Park Nursing Home, Calcutta. Dr. N.S Bannerji has stated in her evidence that as a result of the compound fracture of the left femur, there has been shortening of her leg with the result that she has developed limping gait. The claimant had claimed that she was studying for an M.A. Degree in Sociology and was also studying dance and music. She had further stated that she had also given public performances of her dance. The Tribunal found that there was no sufficient evidence to come to the conclusion that the claimant was to take up the professional career of a dancer. But, taking into account the injury suffered, the Tribunal awarded a sum of Rs. 10,000/- for pain and agony and Rs. 1881-50 towards incidental expenses of medicine, nursing home charges, etc.
4. I have heard the submissions of the claimant for the enhancement of compensation. It is true that there is a shortening of her leg, but, there is no evidence to compensate the loss on the assumption that she would have been a professional dancer. However, considering the fact that she has developed a permanent limping gait, which might have been a hinderance in getting married earlier, I raise the sum of compensation to Rs. 15,000/- for pain and agony. She will also be entitled to Rs. 1881.50 towards miscellaneous expenses as awarded by the Tribunal. The claimant would be further entitled to 6 per cent simple interest from March 1970.
5. If any payment has already been made to the claimant Ms. Esha Ghoshal by the UOI, the UOI would be entitled to the credit for the said amount as well as the interest thereon. The cheque for the compensation amount and the interest thereon shall be deposited by the UOI with the Registrar of this Court within two months from today. The Registrar will disburse the amount after due notice to the parties.
FAO 226/73 is dismissed. FAO 201/73 is allowed with costs. Counsel fee Rs. 1,000/-.
