Delhi Transport Corporation vs Arun Sondhi
1996 Latest Caselaw 1029 Del

JUDGMENT

Usha Mehra, J.

(1) Delhi Transport Corporation (in short D.T.C.) has assailed the order of the Motor Accident Claim Tribunal (in short the Tribunal) on the ground that the compensation awarded is not only on the higher side but in fact based on no evidence.

(2) In order to appreciate the challenge the brief facts of the case are that Arun Sondhi who was 21 years old was going on his motor cycle towards Irwin Hospital via Mathura Road on 4th March,1983 at about 7.20 p.m. Hardly had he reached near Purana Qila at 'T' Junction Mathura Road/Bhairon Road and took a turn towards Tilak Bridge, all of a sudden a Dtc bus driven by respondent No.1 coming from Sunder Nagar side and going towards Ito, hit his motor cycle from behind. The bus which was being driven at fast speed in a rash and negligent manner made him cripple for the rest of his life. The impact of this accident was so forceful that the motor cycle alongwith the petitioner were thrown into the iron railing on the left side of the road. Motor cycle was reduced to a junk. It was over run and dragged underneath the body of the bus. Whereas Arun suffered serious and grevious multiple injuries on his body. Due to this accident six inches of his bone and flesh were cut and fell at the site of the accident. He was removed to L.N.J.P.N. Hospital where on examination it was found that he had compound fracture and crush injuries on both the legs and spine lumber region fractured. One rib broken and other had hair line crack. Deep wound at right ancle. Multiple injuries throughout the body, especially serious injuries on the spine. Paralysis below the hip region. He remained admitted in the hospital for about two weeks. Doctors and specialists tried to save his leg but finally they were forced to amputate left leg six inches below knee in order to save his life. While in hospital he developed complications. His condition became serious and critical. Six inches steel rod had to be inserted in the narrow bone. He was removed to Aiims on 27th March,1983 where he remained for one week and thereafter shifted to private ward. His one leg was amputated and other leg was paralysed with the result he became bed ridden and immobilised forever. He became totally dependent upon parents, brothers and became a cripple. His future became bleak. He lost job opportunities which he would have got but for this accident. It is under these circumstances that he filed a claim for compensation under the Motor Vehicle Act (hereinafter referred as the Act) claiming compensation to the tune of Rs.35.00 lacs under various heads namely on account of pain and suffering, medical treatment, loss of earning, amenities and enjoyment of life etc. The Motor Accident Claim Tribunal (hereinafter referred to as the Tribunal) after recording the evidence and going through the medical history of Arun awarded a sum of Rs.7,20,000.00 in his favour with interest at the rate of 12% p.a. from the date of filing of petition till realisation.

(3) The grievance of the appellant Dtc is that the accident was not caused by the Dtc bus. There had been material contradiction in the testimony of claimant's witnesses which have been ignored by the Tribunal. Mr.J.N.Aggarwal appearing for the Dtc contended that in view of the mechanical report Ex.PW-5//A and PW-5/B coupled with the testimony of Sh.Karan Singh, PW-6 it is apparent that there was no fault of the bus driver. There was no damage caused to the bus which could be attributed to this accident. Moreover, S/Shri Tarif Ahmed and Bhupinder Singh alleged eye witnesses had not been produced. In the absence of these eye witnesses, it was difficult to presume that the accident was caused by the bus in question. On the contrary it had been established by the appellant that a truck coming at fast speed had in fact caused this accident. This fact has not been properly appreciated by the Tribunal. Moreover, no proof had been given for having spent the complete foreign exchange got issued from the R.B.I. for the treatment of Mr.Arun.

(4) I am afraid no amount of argument can change the facts which have come on record and duly proved. In the written statement filed by the Dtc, it based its case on the facts that bus was not at all involved in the accident. In para 2 of the Preliminary Objections in the written statement it was pleaded that owner and driver of the truck were involved in the accident. But no particulars of truck had been furnished nor evidence was led to prove that any truck was involved in this accident. On the contrary the question put to Arun who appeared as PW-1 in the cross examination reveals that the factum of accident with the bus had not been disputed. It was only the manner of accident which was questioned and challenged. From the cross examination of PW-1, it is clear that the case set up was that the Dtc bus was standing behind him at 'T' Point at Red Light. It was PW-1 who overtook the said bus from left side. Since truck was coming at fast speed from Bhairon Road side and hit the bus on its right portion hence this accident was caused. This suggestion to PW-1 Mr.Arun was in total variance with the pleadings of the appellant in the written statement. Hence the Tribunal was justified in rejecting this defense as afterthought. Mr.Om Vir Singh, RW-1 was produced by the DTC. He had no personal knowledge as to how accident was cuased. He only produced the record of Fir No.84/83 to show that the accused in that case had been acquitted by the Criminal Court. When subjected to cross examination he could not say on what ground that accused was acquitted and what sort of evidence was led in that case. In the absence of all these details, the Tribunal rightly concluded that judgment of the criminal court was not conclusive for deciding the matter in controversy before him. When asked why the driver was not produced, Mr.J.N.Aggarwal explained that the Driver had since expired, threfore, he could not be produced. Neither the date of death of the Driver produced nor got it recorded before the Tribunal. No particulars having been furnished adverse presumption was correctly drawn. Besides the Driver even the cleaner/conductor had also not been produced. Why cleaner/conductor not produced, for that there is no explanation. Tribunal, therefore, had to draw adverse inference against Dtc for having not produced cleaner/ conductor also. The Cleaner/conductor was summoned but when he did not appear he was given up. It was in this backdrop that adverse presumption was drawn by the Tribunal. I find no tenable ground to interfere with the same.

(5) It has come on record by the testimony of PWs that the Motor Cycle was thrown 5 to 6 feet away. It did not get on to the Patri. Because of this accident Mr.Arun's both legs got crushed. He was still on the road. Therefore, it is wrong on the part of the Dtc to urge that the Tribunal erred in not properly appreciating the evidence on the point of negligence. Introduction of truck into the picture appears to be afterthought. The factum of truck being involved has not been established on record. The story of truck is neither convincing nor believable. Hence on this score also, I find no merit in the appeal.

(6) Now reverting to the challenge on the ground of compensation awarded in favour of respondent, I must say that keeping in view the injuries sustained by Mr.Arun which made his disability 100% leaving one leg amputated below the knee and other paralysed, it cannot be said that he is leading a normal life. He is dependent on others. He has no control over his lower region. No control on urine and stool. Healthy boy of 21 years was crushed by the reckless driving of a Dtc bus. His life has been spared but made it a vegetable living. He has in no uncertain words stated appearing as PW-1 that he had received a call for interview from Oberoi Group of Hotels. He also gave his family status, longevity of family members and their background. His grand father lived upto the age of 90 years. He was Director in Geological Survey of India. He was rewarded for rendering valuable service to the nation. His father retired as Seniormost Manager of Tea Estate. He was drawing a salary of Rs.5,000.00 per month plus many perquisites. His elder brother is an officer in Merchant Nevy. He was drawing a salary of Rs.3,000.00 per month plus perquisites. His sister was married to a Chief Engineer in the Merchant Nevy. He belonged to an educated and affluent family. Salary of his father and brother as mentioned above are of the period of 1985. He himself was studying in B.A.Final Year in St.Stephen's College, Delhi. Keeping in view his family background, status, educational qualification and that he himself was studying in one of the prestigious educational college in Delhi, the Tribunal rightly awarded the compensation which it did. I find no merits in the grievance of the DTC/appellant.

(7) No merits in the appeal being Fao No.278/94. The same is accordingly dismissed but with no order as to costs.

(8) Turning to the objections filed by Mr.Arun in his cross appeal being Fao No.24/95, his grievances can be summarised in one word that he is not satisfied with the compensation awarded. According to him, his was a case of 100% disability and total dependency on others. The Tribunal did not take into account the fact that throughout his life he has to have assistance of a nurse and domestic help for his living. He spent over six lacs on his medical treatment way back in 1985. His treatment is yet not over. Because of paralysis of one leg and amputation of the other, he had to go to Sweden on the advise of doctors to see if he could be rehabilitated. So that he could be a bit independent. But the Tribunal ignored all these facts. In 1985 he paid Rs.350.00 per month to an attendant besides spending Rs.50.00 per day on special diet. He has to have assistance and domestic help because without assistance he can not move and without domestic help he cannot have food. Without these helps he would be forced to lead a miserable life. He has to be at the mercy of others. His future is completely ruined. His prospects of having a job are completely finished. He was a bright student. He would have been in the high brackets of earnings. But the cruel hands of destiny through the Driver of Dtc snatched that opportunities from him. He has to depend on others for his living. He has to have medical treatment throughout his life. In this back ground the compensation awarded is too low. From the interest earned from the amount awarded in his favour he has to have his living. Keeping to days price index in mind the interest earned on the awarded amount is not sufficient for him to make his both meals. When the Courts consider the loss of income and earning capacity the Court has to take into consideration his miserable condition and the bright future which he lost and the continuous treatment he has to undergo.

(9) Considering his injuries and that he has to have medical treatment through out his life and he cannot live without an assistance or domestic help, the award of the Tribunal is on the lower side. I find force in the submissions of Mr.S.C.Dhanda that from the compensation awarded by this Court this boy has to live his entire life. Admittedly, due to rash and negligent driving of the bus driver, Arun's life has been made completely crippled. He has become 100% disabled. He has to depend on other's mercy. He can live in today's world only if he has purchasing capacity and for that he requires money. Tribunal applied the multiplier of 16 years. 13 years have already passed. He is still struggling in life. To my mind, this is a fit case where maximum multiplier of 18 years should have been applied. Nobody knows how long he has to live. The compensation should be commensuration with the suffering undergone or undergoing even today. This was so held by the Supreme Court in the case of R.D.Hattangadi V. Pest Control (India) Pvt. Ltd. & Ors. reported in 1995 (1) Acj 366. While dealing with the case of lawyer, who on account of an accident became permanent disabled, Apex Court enhanced the compensation to Rs.14,46,000.00 . The Apex Court opined that expenditure factum called pecuniary damages should be compensated. The pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money, such as expenses on medical attendance, loss of earning of profit and other material loss. There are non-pecuniary damages which are incapable of being assessed by arithmetical calculations, such as damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future, damages to compensate for the loss of amenities of life, damages for loss of expectation of life, inconvenience, hardship, discomfort, dis-appointment, frustration and mental stress in life.

(10) MR.DHANDA then relied on the decision of Supreme Court in the case of General Manager, Kerala State Road Transport Corporation V. Susama Thomas and Ors reported in 1994 vol.1 Acj 1. In that case the Apex Court observed that multiplier method is the accepted method of ensuring a 'just' compensation. It was further observed that for arriving at a just compensation, determination of compensation on the basis of entire future earnings for over the period of lost life expectancy, then making deduction for uncertainties of life is unscientific and impermissible. That was also a case of accident where the injured died living behind widow, children and parents. Relying on these observations, Mr.Dhanda contended that in the present case Arun was a young boy of 21 years, full of expectations of life. He was studying in Final Year in a prestigious college in Delhi namely St.Stephen's college. Keeping in view boy's family background, he could have got a good job. In fact he was called for an interview by Oberoi Hotel which shows he would have got good job. Therefore, non pecuniary damages should have been commensurate keeping his loss of earning capacity, pain and suffering and expectation of life and amenities. But the Tribunal ignored the same. Loss of amenities of life had to be compensated keeping in view that he has now become dependent. He has to have an attendant or a nurse to look after him besides keeping a domestic help.

(11) Refuting these arguments of Mr.Dhanda, Mr.J.N.Aggarwal Mr.Arun cannot take any help from the decision in the case of R.D.Hattangadi's (Supra) because in that case the Supreme Court was dealing the case of established lawyer. He had a good practice. He was 52 years old. Therefore, loss of amenities and earning could be inferred from his past earnings. Whereas in the present case objector was only a student studying in Final Year. His future was unknown nor any help could be taken from his past as he had no earning. He was yet to establish in life. Hence his case cannot be compared with that of R.D.Hattangadi's case (Supra). His expectancy in life was yet to take shape. No case is made out for enhancing the compensation. To strengthen his argument he relied on the decision of Supreme Court in the case of U.P. State Road Transport Corporation & Ors. V. Trilok Chandra & Ors. reported in Jjt 1996 (5) 356. After going through the facts of this case it can be said that this decision is of no help to the DTC. In that case the Apex Court was concerned with the applying of multiplier. As to what correct multiplier should be applied. It was while considering the norms for applying the multiplier that it observed that the selection of multiplier cannot in all cases solely depend on the age of deceased. All factors have to be taken into consideration while applying the multiplier. The court in that case was not concerned with the compensation awarded or about the percentage of disability and for 100% disability what compensation should have been awarded. Therefore, that judgment is of no help to Mr.Aggarwal.

(12) Reliance by Mr.Aggarwal on the decision of Punjab & Haryana High Court in the case of New India Assurance Co. Ltd. & Anr. V. Renu Walia and Anr. reported in 1995 Vol.2 Acj 1128 is also of no help to him. In that case the injured was a house wife. The injury suffered was 60% permanent disability. Whereas in the present case Arun has suffered 100% disability. Below waist he has no control over anything. His suffering and pain and the expenses incurred by him have to be taken into account on the basis of evidence furnished by him. These cannot be compared with that of Renu Walia's. Nor his case can be compared with that of another case cited by Mr.Aggarwal of Punjab & Haryana High Court namely of Ishpal Singh Paramjit Singh & Ors. V. Maneet Maunder & Ors. reported in 1995 Vol.2 Acj 1281. In that case the injury suffered was on the right side of leg and hand with impairment of mental function. There the Court enhanced the award of the Tribunal to Rs.8,68,800.00 .

(13) Keeping in view the principal of law laid down in the cases cited above, it is apparent that in a case of 100% disability caused to a young boy of 21 years whose life has been crippled by the cruel hands of the Dtc through its driver, we have to take into consideration his future prospects, amenities of life dependency on others and loss of earning. So far as award of expenses on treatment in Sweden the evidence of PW-11 fully established the same. He proved that the foreign exchange received was fully utilised. Other medical expenses have also been proved on record. For the loss of amenities and enjoyment of life on that we have to take into consideration that he will be requiring the help of an attendant or a domestic servant through out his life. Therefore, compensation of Rs.1 lac on that account is not sufficient. Even if he engages a domestic servant at the rate of Rs.350.00 per month and taking the period from June 1983 till date it would work out to be Rs.60,000.00 . It is a common knowledge that now a days no domestic servant is available in Rs.350.00 per month.

(14) It is in this background that I enhance the amount of compensation on the count of pain & suffering, enjoyment of life and for assistance from Rs.1,00,000.00 to Rs.2,00,000.00 . Similarly, in the facts of this case multiplier should have been 18 years. So, applying the multiplier of 18 years, the dependency loss would work out to be Rs.4,32,000.00 instead of Rs.3,84,000.00 . Thus the modified compensation would come to Rs.8,68,781.00 . On this additional amount, the objector Arun will also be entitled to interest at the rate of 12% per annum from the date of his petition till realisation.

(15) With these observations both the appeals stand disposed.