State Of Haryana vs Sh. K.L. Pasricha & Ors.
1998 Latest Caselaw 312 Del

ORDER

Usha Mehra, J.

1. The legal points raised in this appeal and the cross objections being common i.e. whether the accident was caused due to any negligence on the part of the Motor-cyclist and whether the quantum of compensation has been rightly worked out by the Tribunal, hence the appeal and cross objections are taken up together and disposed.

2. Facts which are relevant for determining the above points are that the respondent Mr. Kishan Lal Pasricha was going on his motor cycle on 21st April, 1997 at about 3.20 p.m. He was on his right of the road. He was going on Mall Road and was proceeding towards I.S.B.T. Hardly had he reached near the crossing of Mall Road Bhambri Road and was about to cross the junction of Princess Road-Mall Road, when a bus belonging to the appellant bearing No.HYA-1630 driven by Shri Ram Chander in rash and negligent manner at a fast speed came and hit the motor-cycle of Mr. Pasricha. As a result of this accident Mr. K.L. Pasricha as well as his pillion rider fell down. Mr. Pasricha on account of this impact received fracture of nose, fracture of right clavicle, fracture of both bones of the right leg at tow places beside head injury and injuries on other part of his body. He was removed to Hindu Roa Hospital, where he remained indoor patient and there-

after got the treatment at General Hospital, Chandigarh. His injuries were declared as permanent disability. His leg was shortened by three to four inches. He suffered financial loss as well in the form of loss of salary, incentive, bonus, future benefits beside pain and suffering. He incurred heavy expenditure on medical treatment, conveyance and special diet. He thus claimed compensation of Rs.20 lakhs. The Motor Accident Claims Tribunal (in short the Tribunal) vide impugned award dated 4th April, 1983 awarded compensation of Rs. 3,11,640/-.

3. The State of Haryana appellant herein felt aggrieved with this award primarily on the ground that the learned Tribunal erroneously concluded that the accident was caused due to the negligence of the driver of the Bus only. From the testimony of witnesses and in particular PW-1 & PW-2 read with the testimony of PW-6 and the mechanical examination report it is apparent that it was a case of contributory negligence. Moreover, the compensation awarded is on the higher side.

4. As against this, the respondent Mr. K.L. Pasricha has also filed cross objections listed as C.M.No. 3438/83. He has assailed the award on the ground that the general damages awarded are on the lower side. Because of the shortening of his leg and the multiple fractures suffered by him his agonies are ever lasting. The pain and sufferings have not come to an end. At the time of this accident he was 41 years old. Now he is 60 or 61 years old. His medical treatment is yet not over. Because of these injuries he has been rendered permanently disabled. He lost the changes of tours which an an officer of the Insurance Company he was entitled to do and earn additional income per month from these tours. The Tribunal also erred in not awarding interest from the date of petition till realisation. Secondly, while awarding the compensation the Tribunal ignored the fact that being disable he has to hire conveyance for which extra expenditure are being incurred. Beside he has been deprived by the Tribunal amounts on account of the conveyance allowance, leave encashment, loss of increment, incentives, bonus and the touring facilities by which he could have earned lakhs of rupees. Because of his head injuries he suffered giddiness, missing heart beats, black outs and epilepsy. He denied there was any negligence on his part which contributed this accident. He was driving his motor cycle on his correct side. The bus not only hit his motor cycle but also killed the cyclist by going on the wrong side of the road which fact itself proves that the driver of the bus was driving it not only in rash and negligent manner but at a very high speed. The driver of the bus could not control the bus because of High speed and thus killed the cyclist. There was no negligence on his part. After hearing Mr. I.S.Goel for the appellant and Mr. Ashok Popli for the respondent/claimant and after going though the oral and documentary evidence placed on record and the contention raised I am of the considered view that the appellant has miserably failed to establish contributory negligence on the part of claimant/respondent herein. This conclusion based on the basis of the finding given by this Court in connected appeal bearing FAO.No.221/83 arising out of the same accident and award titled as State of Haryana V. Smt. Bhagwan Devi & Ors. In that appeal while dealing with the cause of death of deceased Nand Kishore who was also killed by the bus in question, this Court observed that due to the rash and negligent driving of the driver of the bus the accident was caused. While arriving at this conclusion support can be had of the statement of eye-witnesses, namely, Sewa Ram (PW-1) and Anoop Singh (PW-2) and of PW-6 as well as mechanical examination reports. Mr. Goel's contention that there was material contradiction regarding description of the accident given vide the testimonies of PW-1 & PW-2. After perusing their testimonies it cannot be said that they differed at any stage on the material aspect i.e. of rash and negligent driving of the bus driver and that the accident was caused by the bus driver because he was driving at high speed. Therefore, the argument of Mr. I.S.Goel being not fortified from the evidence available on record cannot be sustained. perusal of their testimonies as well as the mechanical examiner report proved by PW-6 clearly establishes beyond doubt that there was any negligence on the part of motor cyclist. PW-1 and PW-2 rather in no uncertain words testified that the bus was being driven in a rash and negligent manner. It was driven in fast speed and did not blow horn. The bus was coming from Azad Pur side and was going towards Mall Road. In front of the bus, the motor cycle was going. It was the bus which hit the motor cycle with its front portion. Since it was at fast speed it could not control hence the bus swerved towards the wrong side of the road and hit the cyclist i.e. Nand Kishore thereby killing him at the spot. After hitting the cyclist the bus turned to its correct side. Inspite of having subjected to lengthy cross examination testimonies of these witnesses could not be discredited. From their lengthy cross-examination it could not be proved that there was any negligence on the part of motor-cyclist. No material contradiction could be extracted from their cross examination. They withstood the test and could not be dislodged. They appear to be truthful and straight forward witnesses. Being eye witnesses they narrated the fact as they saw. Therefore, their testimonies were rightly relied by the Tribunal. Mr. Goel's contention that there was material contradiction in their testimonies cannot be supported on the basis of facts available on record. Nor Mr. Goel has been able to point out any such material contradictions which would discredit their version of the accident. In the normal circumstances when two persons describe an incident, there is bound to be some variation. That variation by itself cannot constitute nor can be called material contradiction. From their testimonies the appellant could not extract or establish that there was an negligence on the part of the motor cyclist which contributed this accident. Therefore, the contention of Mr. Goel that there was contributory negligence on the part of the motor cyclist, to my mind, appears to be the figmentation of appellant's brain. The negligence in causing the accident was squarely that of the driver of the bus. Driver of the bus was driving it in such a high speed and in a rash and negligent manner which caused the accident thereby injuring the respondent/claimant and killed the cyclist Nand Kishore. Even from the site plan and the mechanical examination of the motor cycle it cannot be said nor it can be inferred that there was any negligence on the part of the motor cyclist. Perusal of the same shows that it was the bus which hit the motor cyclist on his right side and then swerved toward wrong side of the road. This happened because the bus was driven negligently at a fast speed. On this count, I find no merits in the appeal.

5. Now turning to the question of quantum of compensation, according to the appellant the award is on the higher side whereas claimant alleges it to be on lower side. According to respondent/claimant the Tribunal ignored the factum of his permanent disability. The claimant/respondent herein had suffered permanent disability of his right leg. His right leg has become short by 3 to 4 inches. Not only his leg has been shortened but he also sustained head injury. Therefore, Dr.Jaswant Singh (PW-34) testified that on account of this head injury claimant suffered disability of global type effecting his appearance, behaviour, talk and thought process beside his mood, memory, intelligence and hearing etc. stood effected. This shows that the whole personality of the claimant got changed because of this head injury as well as because of his shortening of the leg. Dr. Jaswant Singh further testified that the claimant on account of the head injury acquired peculiar behaviour. He would easily get confused he would start conversation well but thereafter loose the track. He would get irritated and became a short tempered. His memory get effected. The claimant remained under the treatment of Dr.Jaswant Singh for a considerable long time. Since Dr. Jaswant Singh treated the claimant he issued a certificate indicating what were the effects of this accident on the claimant. The said certificate was exhibited as Exhibit PW-34/1. Because of the head injury and shortening of leg claimant started getting depressed. Dr. Rastogi (PW-36) also indicated that respondent/claimant developed symptoms of depression, anxiety neurosis with cervical spondees and occasional bouts of tachycardia with extrasystoles. These symptoms arose and are directly related to the accident. His working capacity also got effected to the extent of 70-80%. The fact that his right leg got shortened by 3 to 4 inches has been proved by the testimony of Dr.Jatinder Bajaj, PW-24. He also testified that movement of knee joint of the claimant got restricted by 30 degree. His muscles got very week and he would feel pain in both the ankles and right foot got twisted inside with result he could not walk properly. His right knee got stiffened. Dr. Jagdish Sharma PW-11 testified that claimant/respondent complained of deficiency of hearing, change in personality and inability to coup-up with the work. Though on examination he did not find the deficiency of permanent nature but admitted that higher mental functions like intelligently calculation and memory were impaired. He treated the claimant for post traumatic sequel. Though the claimant improved considerably but when the claimant appeared in the witness box he described his suffering even on the date when he stepped into the witness box. Other doctors examination by the claimant also corroborated the above facts and stated that his injuries were of permanent nature and the disability was of permanent nature.

6. It is in his backdrop we have to see whether the award of the Tribunal is fair and proper. The Tribunal awarded Rs.20,000/- towards general damages for pain and suffering. To my mind this was not commensurate with the injuries sustained by the claimant/respondent. In similar circumstances this Court in the case of K.P.Singh Vs. Chiranji Lal & Ors. reported in 1992 (2) ACJ 868 while considering the injuries sustained by that claimant like that of fracture and joint dislocation of shoulder and multiple wounds including a large wound on the left leg enhanced the general damages from Rs.20,000/- to Rs.85,000/- which, of course, was inclusive of special damages also. Similarly, in the case of Rattan Lal Mehta Vs. Rajinder Kapoor and Anr. reported in 1996 ACJ 372 this Court while analysing what compensation should be paid came to the conclusion that when it is a case of permanent disfigurement the award of Rs.35,000/- as against Rs.15,000/- on account of pain and suffering was proper. For loss of amenities and happiness this Court enhanced the compensation from Rs.20,000/- to Rs.35,000/- and for loss of expectation of life it was enhanced to Rs.15,000/- and for disfigurement another sum of Rs.15,000/- beside awarding medical expenses and loss of leave etc. was granted. Similarly, in the case of New India Assurance Co. Ltd. Vs. Manohar Khushalani & Ors. reported in 1997 ACJ 251 the appellant therein sustained injuries on the leg, compound fracture of shaft of left femur. His leg remained under plaster from foot to chest and became short and stiff. His movement became restricted resulting in 25% disability. This Court enhanced the compensation from Rs.50,000/- to Rs.1,60,253/-. This Court awarded Rs.50,000/- for pain and suffering including permanent disability and Rs.50,000/- for loss of enjoyment and amenities of life and Rs.20,000/- for conveyance expenses. On the analogy of the above decision it can be concluded that the award of the Tribunal for general damages is on the lower side than what ought to have been awarded.

7. In the fact and circumstances particularly when the claimant had suffered mental disability, loss of memory and depression, this Court enhances the compensation under the head general damages i.e of pain and sufferings from Rs.20,000/- to Rs.50,000/-. Similarly, the award of special damages i.e. loss of amenities and future enjoyment of life are found to be on the lower side. It should have been Rs.60,000/- instead of Rs.30,000/- Order accordingly. Medical treatment of the petitioner is a continuous process and as per the testimony of doctors who examined him he has to bear the suffering and agony through out his life. Therefore, taking these factors into consideration, I am of the considered opinion that the medical expenses ought to have been Rs.one lakh instead of Rs.30,000/- as awarded by the Tribunal. Order accordingly.

8. Mr.Popli contends that claimant suffered loss on account of leave for the period from 21st April, 1977 to 17th July, 1978 and conveyance allowance was deducted by the Tribunal coupled with the fact that grant of loss of increment should have been upto the time the award was pronounced. To my mind, these contentions have no force. The Tribunal took note of all the facts i.e. loss of leave etc., thereafter, granted Rs.34,200/- I see, no reason to interfere with the same. So far as loss of increment is concerned the Tribunal after taking note of the relevant provisions granted compensation upto the date of joining. Because after joining he was to earn the increments, therefore till the time he rejoined duties compensation was awarded. I see no reason to interfere. Tribunal also took note of the fact that there was a loss of incentive, bonus and of provident fund and gratuity and accordingly compensated the claimant. So far as incentive and other claim items are concerned, I find no infirmity in the award. The Tribunal awarded the same taking into consideration all the relevant facts available on record.

9. To the extent that claimant would be entitled to Rs.50,000/- against the claim of pain and suffering and Rs.60,000/- against the claim of loss of amenities and future prospects, beside he would be entitled to Rs. one lakh as medical expenses and expected medical treatment though out his life, the cross objection is allowed. The appeal of the appellant/State of Haryana is dismissed. The award is thus modified. The enhanced amount the claimant would be entitled to receive beside interest on the same at the rate of 12% from the date of petition till realisation. The award against general damages on account of pain and suffering would be Rs.50,000/-. For loss of amenities in future the claimant would get Rs.60,000/-. For medical expenditure he would get Rs.one lakh. The Tribunal, to my mind, fell in error in not awarding interest from the date of the petition till realisation. No reason has been assigned for depriving interest to the claimant from the date of the petition. Perusal of the record shows that there was no negligence on the part of the claimant in pursuing the petition. Therefore, for this reason also the award of the Tribunal as such cannot be sustained. The same is accordingly modified with direction that on the awarded amount as well as on the enhanced amount claimant would be entitled to interest at the rate of 9% p.a. from the date of petition till realisation. Appellant had deposited the amount in this Court which was not allowed to be released in favour of the claimant at the behest of the appellant who obtained stay. Hence the claimant would be entitled to interest at the rate of 9% even on the amount deposited but not allowed to be paid to claimant.

10. With these observations, the appeal as well as cross objections stand disposed.