S.R. Subhramaniam vs Kashmir Singh And Ors.
1995 Latest Caselaw 596 Del

JUDGMENT

C.M. Nayar, J.

(1) The present appeal is directed against the award dated 29th October, 1981 passed by Shri S.P. Sabharwal, Judge, Motor Accident Claims Tribunal, Delhi. The claim petition was filed by the appellant under Section 110-A of the Motor Vehicles Act claiming compensation of Rs. 1,75,000.00 on account of injuries sustained by him in motor accident that took place on 20th January, 1976 at about 6.45 p.m. on Curzon Road near Bhartiya Vidya Bhawan School, New Delhi. The appellant was going on his two wheeler scooter from Connaught Place and was proceeding towards India Gate via Curzon Road. It was alleged that he was driving his scooter at a slow speed on correct side of the road. When he reached near Cghs Dispensary on Curzon Road, car No. DHB-3465 came from a side lane. The said car was driven by respondent No .1 rashly and negligently and at a fast speed. The respondent did not stop the vehicle at the junction of the side lane and entered the Curzon Road at a reckless speed which resulted in the accident. The scooter of the appellant was badly damaged. It was alleged that appellant suffered multiple fractures in left leg and his eye-sight has also been affected. It is further stated that the appellant has been disabled permanently. He incurred an expenditure of Rs. 15,000.00 on treatment till the date of filing the petition and the said treatment was still continuing. Respondent No. 2 was the owner of the vehicle and respondent 3 was the insurer.

(2) The claim petition was resisted by the respondents and it was pleaded in their written statement that there was no negligence on the part of respondent No. I who was driving the offending vehicle. The accident took place due to negligent, carelessness and rash driving of the appellant who was driving two wheeler scooter at a very excessive speed. The following issues were framed :

1. Whether the accident was caused due to rash and negligent driving of car No. DHB-3465 on the part of respondent No. 1? 2. Whether the accident was caused due to the contributory negligence of the petitioner? 3. To what amount of compensation, if any, is the petitioner entitled? 4. Relief.

(3) The Tribunal considered the evidence on record and has taken into consideration the testimony of the Investigating Officer in the criminal case wherein the said respondent No. I pleaded guilty in the Court of Shri M.L. Sahni, Metropolitan Magistrate and on that basis he was convicted and the learned Judge held that it was conclusively established that respondent No. 1 was driving the vehicle in a rash and negligent manner and accident took place solely due to rash and negligent driving of the car. There is no infirmity in this finding which is based on cogent evidence. The same is affirmed.

(4) The appellant suffered multiple fractures of bones of his left leg and that there was limping which is a permanent partial disability. The medical evidence on record established the injuries and the appellant was treated by plaster and was also operated upon for open reduction of the broken bones, clearance of shaft tissue in between the broken ends and intra-medullary nailing and bone grafting was done on 15th April, 1976. As a result of the injuries the appellant remained on leave for 4" months from the date of accident i.e. 20th January, 1976 to May 1976.

(5) The compensation was assessed under different heads, which is recognised mode of compensation in injury cases. The following amounts were awarded under each head :- 1. Mental Agony, pain and suffering undergone by the appellant Rs.4,000.00 2. Permanent partial disability Rs. 4,000.00 3. Expenses towards: treatment/Rs.7761.00 purchase of medicines Rs.l500.00 Rs. 9261.00 4. Special diet etc. Rs. 1950.00 5. Loss of pay Rs. 2414.00 6. Conveyance Rs. 2000.00 7. Scooter repair Rs. 500.00 Total Rs. 24,125.00

(6) The Tribunal then proceeded to deduct 10% for lumpsum payment out of Rs. 8,000.00 which was granted to the appellant as general damages. The total net amount awarded in favor of the appellant was Rs. 23,325 .00 .

(7) I have heard learned Counsel for the parties. The award of compensation in the facts of the present case is rather low. The petitioner suffered multiple fractures and it has been accepted that there is permanent partial disability in view of the limping which was due to fracture of both the bones of the leg for which nailing and bone grafting had to be done. In this background, the Tribunal has only awarded a sum of Rs. 4,000.00 each for mental agony, pain and suffering and permanent partial disability. This cannot be supported on the basis of the injuries sustained by the deceased and the evidence on record which remains unchallenged. The other area in which the learned Judge has erred is with regard to a deduction of Rs. 5,520.00 from the amount of Rs. 13,281.00 in respect of treatment on the ground that the appellant was entitled to the sum of Rs. 5520.00 as medical expenses from his employer. The learned Counsel correctly argued that this amount could not be deducted on the basis of settled law, as referred to in Chapter 10 of "The Quantum of Damages by Kemp & Kemp -1986 Edition" which has referred to the judgments under the English law that "completely collateral matters cannot be invoked by a tortfeasor to reduce the damages payable to the victim of his tort". The following passage from Para 10-002 which refers to case law may be reproduced in this regard:

"IN an action for injuries caused by defendants' negligence, a sum received by the plaintiff on an accidental insurance policy cannot be taken into account in reduction of damages." This is the headnote to Brad burn v. Great Western Ry, and in our view correctly summarises the effect of this case. Two passages from the judgments in this case contain the ratio decidendi. Bramwell B. said:

"IN Dalby v. India and London Life Assurance Company it was decided that one who pays premiums for the purpose of insuring himself, pays on the footing that his right to be compensated when the event insured against happens is an equivalent for the premiums he has paid; it is a quid pro quo, larger if he gets it, on the chance that he will never get it at all. That decision is an authority bearing on the present case, for the principle laid down in it applies, and shows that the plaintiff is entitled to retain the benefit which he has paid for in addition to the damages which he recovers on account of the defendants' negligence.

And Pigott B. said: "THE plaintiff is entitled to recover the damages caused to him by the negligence of the defendants, and there is no reason or justice in setting off what the plaintiff has entitled himself to under a contract with third persons, by which he has bargained for the payment of a sum of money in the event of an accident happening to him. He does not receive that sum of money because of the accident, but because he has made a contract providing for the contingency; an accident must occur to entitle him to it, but it is not the accident, but his contract, which is the cause of his receiving it."

(8) The appellant in the present case was entitled to receive the sum on the basis of his contract with the employer to the limit of 70 per cent of the medical expenses. Therefore, the deduction of Rs. 5520.00 by the Tribunal cannot be sustained.

(9) The award of compensation under the heading mental agony pain and suffering and permanent partial disability at Rs. 4,000.00 each is also on the lower side. The appellant in the facts and circumstances can be safely granted Rs. 10,000.00 each under these two heads which will not be in any manner exaggerated and can be held to be just, fair and reasonable. Similarly, there has been unnecessary deductions for the amounts spent by the appellant for medicine, special diet and conveyance. There cannot be any precise mathematical formula to assess these amounts under the above heads. There is always an element of some guess work and it is not possible for the injured person to keep precise record of the amounts spent, particularly in a situation when he is under grave mental agony and physical pain. This has also been referred to by the Supreme Court in Mr. R.D. Huttangadi v. M/s Pest Control (India) Pvt. Ltd & Ors., wherein the Court has accepted that whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused though these elements have to be viewed with objective standards. The Courts have to be liberal in awarding the compensation in such cases. The learned Judge then deducted a further amount of Rs. 800.00 from the amount awarded towards lumpsum payment in respect of general damages of Rs. 8,000.00 . The concept of deduction on account of lumpsum payment has since ceased to be a valid criteria for reducing the amount of compensation, particularly when the accident took place on 20th January, 1976 and there has been long delay in the final disposal of such cases. The inflation and the consequent fall in the value of rupee make a compensation demanded years ago much less than its value when it is received. These observations find place in the judgment of the Supreme Court as reported in Hardeo Kaur and Ors. v. Rajasthan State Road Transport Corporation and Anr.=II (1994) Acc 431 (SC)1992 Acj 300= (1992) Acc 603 (SC) and Urmila Pandey and Ors. v. Khalil Ahmad and Ors., 1994 Acj 805. Therefore, the deduction on account of lumpsum payment cannot be sustained. In the facts and circumstances of the present case it will be held just, fair and reasonable to assess the award of compensation in favor of the appellant as follows : 1. Mental Agony, pain and suffering undergone by the appellant Rs. 10,000.00 2. Permanent partial disability Rs. 10,000.00 3. Expenses towards treatment Rs. 13,281.00 4. Expenses for purchase of medicine etc. Rs. 2,000.00 5. Loss of pay/Special diet etc. Rs. 5,000.00 6. Conveyance and loss as a result of sale of two wheeler Rs. 4,500.00 Total Rs. 44,781.00

(10) The appellant is, therefore, held entitled to compensation rounded of to Rs. 45,000.00 . He is also entitled to interest @15% p.a. from the date of petition till realisation. The amount, if any, disbursed to the appellant shall be taken into consideration in working out the amount now held payable. The appeal is allowed in the above terms with costs, which are quantified at Rs. 2500.00.