Jai Bhagwan And Anr. vs Ramesh Chander And Ors.
1995 Latest Caselaw 691 Del

JUDGMENT

C.M. Nayar, J.

(1) The present appeal is directed against the award dated December 21, 1981 of Shri O.P.Dwivedi, Judge, Motor Accident Claims Triound Delhi

(2) The brief facts aie the on May 31, 1977 the appellant Jai Bhagwan came out from Delhi Cloth Mills after finishing his duties at about 2.30 p.m. and was going to Najafgarth Road. After crossing the road, he was proceeding towards Moti Naga on his bicycle when bus No. DHP-101, driven rashly and negligently by respondent No. I, came front the .-'idacf Moti Nagar and after over to king another vehicle, cum to the wrong suit of the road and violently bit the appellant as a result of which he suffered injuries it was alleged that respondent No. 1 who was driving the bus did not blow any horn The appellant suffered injuries.. extreme mental pain and agony and remained hospitalised for quite a long time. He suffered serious head injuries and injuries on other parts of the body as a result of which he had been rendered permanently disabled for doing any work. Respondent No 1. is the driver of the vehicle, respondent No. 2 is the owner and respondent No. 3 is the Insurance Company with whom the of tending vehicle was in sured. The said respondents took the plea tha the appellant did not case for the traffic on the road and emerged a very fast speed he lost his balance and struck against the bus which was station at that time. The Insurance Company, respondent No. 3 also denied the allegation made in the petition. The following issues were framed on the pleadings of the parties ; 1. Whether the petitioner suffered injuries on 31.5 1977 in the accident caused due to rash and negligent act of driving of Bus No. DHP-101 on the part of respondent No I? 2. Whether the accident took place due to negligence of the petitioner? 3. Whether petition is bad for mis-joinder of necessary- parties as pleaded by respondent No. 2 ? 4. Whether the petition does not dispose any cause of action and is not maintainable for the reasons contained in preliminary objections No. 2 and 3 in the written statement filed by respondents 2 and 3 respectivaly ? 5. Whether respondent No. 3 is not liable for the reasons contained in the additional pleas of the written statement ? 6. To what amount of compensation, if any, is the petitioner entitled and from which of the respondents ? 7 Relief.

(3) The learned Judge rejected the stand of respondent No. 2 that the appellant had emerged all of a sudden or. the road and collided against stationary bus. No evidence in this regard was produced to prove this version. On the contrary, reference is made to the evidence of PW8 Madan La 1. PW9 Ranbir Singh and PW12 Kaniail Singh, who were coming on the road at the time of the accident. It was deposed that the appellant was knocked down by the offending bus which was coming from the opposite direction at a very fast speed and as a result of the same, the appellant sustained injuries. The 1.0. Hukam Chand who appeared as PW15 had visited the spot and prepared a site plan, which dearly indicated that the bus had gone about 12 paces i.e. about 18 feet towards the right hand side of the road and there was skid marks on the road. The appellant .was hit by the said bus. The evidence, which has been produced clearly establishes that the accident was caused due to rash and negligent driving of bus No. Dhp 101 by respondent No. I and not because of any negligence on the part of the appellant. The finding on these issues is, accordingly, affirmed.

(4) The injuries which the appellant suffered were next considered. Dr. P.S. Rana, Senior Surgeon, Willingdon Hospital was examined as PW4. He deposed that the appellant was brought to Hospital on May 31, 1977 after having met with an accident. He remained unconscious for quite a long time and was only discharged on August 27, 1977. The summary was prepared by Dr. Rana at the time of discharge, which is filed as Ex.PW4/7and indicated that die appellant remained unconscious up to June 21, 1977. His condition showed signs of improvement only on July 9,1977 and he had to undergo operation on June 4, 1977 for evacuation of subdural haematoma. PW6, Dr. Pramod Gandhi of Esi Hospital deposed that the appellant remained indoor patient from August 30, 1977 to October 16, 1977. The appellant showed very little improvement and had difficulty in gait and speech. The limbs were sluggish. Dr. B.C. Jain appeared as Public Witness 11. He examined the appellant on June 30, 1980, and certified that head injury resulted in paralysis of the left side of the body. The functional loss was to the extent of 80 per cent. The Tribunal accepted the injuries, as referred to above and awarded Rs. 15,000.00 as compensation on account of pain and suffering and loss of amenities, future enjoyment of life which was considered as just and fair.

(5) The fattier of the appellant. Ram Singh, who appeared as PW14, deposed that he had spent Rs. 36,000.00 to Rs. 37,000.00 on the treatment of the appellant. The amount allowed for this head was Rs. 3,000.00 on the ground that the treatment at Willingdon Hospital and Esi Hospital must have obviously been free of cost and notasingieprescription,cashmemoorreceiptof the expenditure incurred had been produced. 'Die appellant was employed in a permanent capacity in Delhi Cloth Mills and his statement was recorded on April 1, 1981 wherein it was clearly indicated that from March 31,1977 to April 1,1981 i.e. for 46 months, the appellant did not work. The amount of Rs. 16,330 / - was allowed under the head of loss of past income. The claim for loss of future income was next considered. The learned Judge assessed the income of the appellant as Rs. 100.00 per month and by using a multiplier of 15, the total loss was assessed at Rs. 18,000.00 and after allowing a deduction of 10 per cent for lumpsum payment, the appellant was awarded Rs. 16,200.00. The following amounts were awarded under the respective heads : 1. Pain and suffering, loss of amenities and future enjoyment of life Rs. 15,000.00 2. Medical Expenses Rs. 3,000.00 3. Loss of past income Rs. 16,330.00 4. Loss of future income Rs. 16,200.00 Rs. 50,530.00 The award in the sum of Rs. 50,530.00 was made on the basis as mentioned above.

(6) The assessment of damages cannot be said to be adequate in the facts and circumstances of the present case. The Tribunal accepted that the appellant suffered grievous injuries including head injuries. He was admitted in Hospital for a long period of three months and he was unconscious for quite some time. The medical evidence establishes that the appellant suffered brain damage and paralysis. He was operated upon but there was no substantial improvement in his mental and physical condition. The Tribunal further accepted that the picture that emerged was that the appellant was not completely fit to do any work involving physical and mental strain because not only his limbs but his eyes arid ears had also been affected and at the most he could earn living by doing some sundry job but that would not fetch him as much a', he was earning as a regular worker with Delhi Cloth Mills. The Tribunal after having accepted the above findings awarded an amount which cannot be held to be just, fair and reasonable. There is no doubt that it is not easy to assess the amount of damages in such cases. The same Can, however, be based on some element of guess work and some amount of sympathy linked with the nature of the disability caused. This is a valid mode as accepted by the judgment of the Supreme Court in Mr. RS). Hattangodi v. M/s. Pest Control (India) Pvt. Ltd. & Others, . The appellant, therefore, has to be awarded damages, which will be spread over to pecuniary damages for expenses incurred for medical attendance, loss of earning and other material loss as well as for non-pecuniary lamages, such as damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future as well as loss of a menthes of life, such as, on account of injury he may not be able to walk, run or sit, loss of expectation of life, inconvenience, hardship, discomfort and mental stress. This is an accepted criteria and has to co-relate with the nature of injuries suffered by the victim of the accident. It .s not in dispute that the appellant, who was employed in a regular capacity, suffered head injuries leading to paralysis and weakening of his limbs. It may be difficult to assess the exact amount of compensation for the pain and agony suffered by the appellant and having become a life-long handicapped. The Supreme Court refers to this aspect in paragraph 10 of the judgment in Mr. R.D. Hatlangadi (supra) which reads as follows : "10. It cannot be disputed that because of the accident the appellant who was an active practicing lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation tor the pain and agony suffered by the appellant and for having become a life-long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by Courts that when ever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so faras money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money can not renew a broken and shattered physical frame"

(7) The amounts awarded by the Tribunal, as referred to above, can neither be held to be reasonable nor adequate. The Judge awarded Rs. 3,000.00 for treatment expenses merely on the ground that the father of the appellant was not able to produce cash memo receipts or similar proof to substantiate the averment. The claim for Rs. 36,000.00 to Rs. 37,000.00 was made in this regard There cannot be any mathematical formula but it is wrong to discard the claim merely on the above ground. It is established on evidence that the appellant suffered grave injuries which affected his brain and he became permanently disabled. The reasonable estimate of expenses for past treatment as well as for future treatment could have been evolved to ameliorate the sufferings of the appellant. Similarly, the claim for pain and suffering which fall in the category of general damages can be stated to be inadequate. The amount for future income which was assessed at Rs. 16,200.00 on the basis of Rs. 100.00 per month and by using a multiplier of 15 cannot be recognised as just, fair and reasonable. The Tribunal clearly gave findings of permanent disablement of the appellant to do regular work due to the serious nature of injuries. The award under this head needs to be revised.

(8) In the facts of the present case and taking into consideration the nature of injuries sustained by the appellant, he is held entitled to the following amounts : 1. Expenses incurred on the treatment of the appellant till the date of filing the petition and including future expenses. (Rs. 3000.00 awarded) Rs. 20,000.00 2. Pain and suffering suffered by the appellant 160 including loss of enjoyment and amenities of life Rs. 50,000 00 (Rs. 15000/ awarded by Tribulnal) 3 Loss of past earning Rs. 6330.00 (as awarded by the Tribunal) 4. Loss of future earning on the basis of income at the late of Rs. 200.00 per month and by using multiplier of 15 (Rs. 16,200.00 awarded by the Tribunal' Rs. 36,000.00 Rs. 1,22,330.00 The liability of Insurance Company, respondent No. 3 herein, is held by the Tribunal limited to the extent of Rs. 50.000/" only- The learned Counsel for the appellant has vehemently contended that no proof of such limit has beer. established on record and the Tribunal has only referred to the statement of the Counsel in this regard. The proceedings recorded by the Court on July 14, 1981 read as follows: "Statement or Shri J.L. Khuranna for owner Respondent No. 2 and for Respondent No. 3- Insurance company :-- I represent the owner also besides the company. The liability of the Insurance Company as per policy of insurance issued to the owner was only to the extent of Rs. 50,000.00 This statement was made on behalf of the owner and insurer. There was no proof to substantiate this averment. Neither the original policy nor the carbon copy of the same has been produced before the Tribunal and no evidence has been led to reiterate that the claim of the Insurance Company is only confined to the extent of Rs. 50,000.00 In this background, the Tribunal erred in holding that the liability of the company was to the extent of Rs. 50,000.00 only. This finding is, accordingly reversed. The appellant is, therefore, held entitled to the total claim under different heads, as referred to above, in the sum of Rs. 1,22,330.00. He will be entitled to interest at the rate of 15 per cent per annum from the date of application till realisation. The amount which has already beer. disbursed shall be taken into consideration in computation of the amounts which are now held payable. The appeal is allowed in the above terms with costs which are quantified at Rs. 2,500.00.