Shri Lalit Mohan Bhagat vs Shri Dwarka Nath Pathak And Ors.
2005 Latest Caselaw 1159 Del

JUDGMENT

Pradeep Nandrajog, J.

1. On 24.2.1991 Lalit Mohan Bhagat was standing on the pavement near Mudrika Bus Stand, Kingsway Camp. An oil tanker truck bearing No. DHG-2204 driven rashly by Dwarka Nath Pathak mounted the pavement and hit Lalit Mohan Bhagat. He sustained injuries on the left leg, knee downward to ankle. Lalit Mohan Bhagat was taken to Hindu Rao Hospital by the police. He got himself admitted same day at North Delhi Nursing Home where he remained hospitalised till 18.3.1991. Two operations were performed for skin grafting. Skin from thigh region was taken and implanted on the lower portion of the left leg. He was readmitted on 7.4.1991 and remained hospitalised till 15.4.1991. Third skin grafting was done.

2. Lalit Mohan Bhagat filed a claim petition under M.V. Act, 1988. Vide award dated 5.5.1998 claim petition was allowed, but not to the satisfaction of Lalit Mohan Bhagat. He was awarded Rs. 85,000/-. Award was to carry interest @ 12% per annum from the date of filing of the claim petition.

3. Break up of the sum awarded is as under :

i) Loss of earnings Rs. 15,000/-

ii) Expenses for treatment, special diet and conveyance Rs. 50,000/-

iii) General damages Rs. 20,000/-

4. Since Lalit Mohan Bhagat is in appeal and there are no cross-objections, I need not deal with any other issue dealt with by the learned MACT, save and except, the quantum of damages awarded.

5. At the outset, I may note that the appellant has filed CM. No. 11/2001 under Order 41 Rule 27 CPC. As per the said application, appellant wants to place on record certain events which have transpired during the pendency of the present appeal; events being that the skin grafting which was done on the injured leg of the appellant in February,1991 suffered skin rupturing in June,1999. Appellant had to undergo fresh skin grafting surgery in the year 1999. Appellant has placed on record documents to make good the averments made in CM. No. 11/2001. CM. No. 11/2001 has not been decided. I would accordingly be deciding said application along with the main appeal.

6. Shri O.P. Goel, learned counsel appearing for the appellant urges :

a) Loss of earnings awarded are meager. Counsel urges that the appellant was earning Rs. 4,500/- per month by way of consultancy fee. Appellant could not do any work for 5 months after the accident and accordingly was entitled to loss of earnings in the sum of Rs. 22,500/-

b) On account of medical treatment, special diet and conveyance, counsel urges that in the teeth of Ex. PW-5/4, PW-5/5 and PW-5/7, as also Ex.PW-5/9 to PW-5/37, appellant was entitled to a higher amount under this head for the reason, medical bills in the sum of Rs. 34,393.15 were proved. Counsel urges that during appellant's stay in the hospital, his wife and children were visiting him and were using a taxi as mode of conveyance. Special diet had to be taken by the appellant.

c) General damages awarded were inadequate. Counsel urged that Exhibit PW-5/62 established that the appellant suffered a 12 inches long lacirated wound on left shin and ankle. It was an avulsion injury, requiring skin grafting. Counsel urged that Ex. PW-2/1 showed that appellant was hospitalised for 22 days and has undergone skin grafting twice. Counsel urged that the appellant had to be hospitalised again for 8 days during which a third procedure of skin grafting was done. This wase videnced by Ex.PW-3/1.

7. A perusal of the award reveals that while awarding Rs. 15,000/- towards loss of earning, learned MACT has considered Ex.PW-4/1, a certificate issued by M.M. Bhagat and Company confirming that the appellant had worked as a consultant from April,1989 to March,1992 at a consultancy fee of Rs. 3,000/- per month. Certificate was accompanied by a copy of the salary ledger indicating payment to other employees. Learned MACT has further taken note of the fact that the appellant was relying upon another certificate Exhibit PW-5/64 issued by another concern named M/s Bhagat. Said certificate showed that the appellant was getting consultancy fee in the sum of Rs. 4,500/-. Learned MACT has noted that Ex. PW-4/1 and PW-5/1 have been signd by the same person. Accordingly, learned MACT has disbelieved Ex.PW-5/64.

8. Exhibit PW-5/64 is a mere certificate. Ex.PW-4/1 is not only a certificate, it is additionally accompanied by a photocopy of the salary ledger indicating payment to other employees.

9. In his evidence, lead by an affidavit, appellant has stated that he was working as a consultant with M/s Bhagat Group. Appellant stated that he was being paid a sum of Rs. 3,000/- per month towards consultancy fee besides Rs. 1,000/- to Rs. 1,500/- towards conveyance. He also stated that he was having an income from M/s Premier Battery Group.

10. No evidence was led of any income from M/s Premier Battery Group. In view of the testimony of the appellant, wherein appellant himself stated that he was receiving Rs. 3,500/- per month as consultancy fee from M/s Bhagat Group of Companies, I find no infirmity in the award insofar as it relies upon Ex. PW-4/1 and disbelieves Ex. PW-5/64.

11. Since appellant could not do any work for 5 months after the accident, loss of earnings @ Rs. 3,500/- is fully justified.

12. Towards medical expenses, special diet and conveyance charges, as noted above, Rs. 50,000/- have been awarded. A perusal of the award shows that learned MACT has taken noted of the medical bills filed. Learned counsel for the appellant did not dispute that the sum total of the bills is Rs. 34,393.15.

13. Learned MACT has taken note of the fact that the appellant was under a medical claim policy. Rs. 16,110/- was reimbursed under the said medical claim policy.

14. If that be so, expenditure incurred on treatment in respect of which appellant remained out of pocket would be Rs. 28,000/-. In his deposition, the appellant stated that his family members were visiting him when he was hospitalised and a sum of Rs. 13,000/- was spent on conveyance. Though appellant stated that he was taking nutritious diet, no particulars have been disclosed in the deposition. Learned counsel for the appellant could not point out anything from the medical records which required the appellant to take special diet.

15. I find no infirmity in the award insofar as it awards Rs. 50,000/- on account of medical treatment, special diet and conveyance.

16. That takes me to the third limb of the compensation awarded. Rs. 20,000/- have been awarded as general damages. Is the sum adequate?

17. Pecuniary damages suffered are easy to determine as a Tribunal would have some imperial data before it, but evaluation of general damages or non-pecuniary damages for pain, suffering, loss of amenities, disfigurement and loss of expectation of life creates a problem.

18. An injured is entitled to be put in the same position as he would have been if he had not been wronged. But is is impossible to be achieved when it comes to non-pecuniary damages.

19. However, law has evolved certain principles to determine non-pecuniary damages. Three areas have to be focused :

(I) Conceptual

(II) Personal

(III) Functional

20. The conceptual treats the loss of a limb as the loss of an asset or a property. The loss though intangible, can be valued. Where it results in potential loss of earning, primary data would be the expected earnings and anticipated fall.

21.Under personal loss, damages have to be assessed not in relation to the personal asset but in relation to human happiness. Evaluation being the difference between the happiness the victim would have enjoyed if he had not been injured and thehappiness or unhappiness he would experience as an injured person. Personal loss would also include loss of amenities.

22. Under the functional loss, focus is on solace. A person deprived of his ability to do something which he enjoys in life cannot be recompensed for that loss, but can be given money as some consolation or solace.

23. Non-pecuniary damages are granted where the accident victim survives and suffers an injury. Case law in India would reveal that non-pecuniary damages are divided into following sub-heads :

(i) Pain and suffering,

(ii) Loss of amenities of life,

(iii) Loss of expectation of life,

(iv) Disfigurement, and

(v) Discomfort or inconvenience.

24. A perusal of the medical record and in particular Exhibit PW-5/62 read with PW-3/4 as also Exhibit PW-5/4, PW-5/4 and PW-5/7 would show that the appellant suffered a 12 inches long lacerated wound on left shin and ankle. It was an avulsion injury requiring skin grafting. Appellant was hospitlised for 22 days after the accident and thereafter, within less than 2 weeks of discharge was again admitted to hospital for 8 days. Three procedures of skin grafting were performed.

25. Skin from the thigh was removed and grafted on the injured portion of the lower limb. A doctor's certificate proved as Exhibit PW-2/1 records that the appellant has suffered 30% disability. The certificate has been disbelieved by the learned MACT on the ground that the doctor issuing the same was not competent to issue the certificate for the reason, law requires disability certificate to be issued by a Board of Doctors.

26. Proceedings under M.V. Act, 1988 are summary proceedings. The tribunal has not to record evidence like at a civil trial. In fact, law requires a Tribunal to hold an enquiry and dispose of the claim petition. Medical record of the Nursing Home, Exhibit PW-3/4, shows that the entire mass of muscle on the lower left leg was crushed. The bone was visible. Three grafting procedures had to be resorted to. Total period spent in the hospital was 30 days. Extent of injury can be gaged from the span of time spent for recovery. Further, physical impairment can be gauged from the nature of the injury and operations performed.

27. A skin grafting is not a complete substitute for the natural healing of a wound when injury is of a lesser magnitude. There is always a shrivling of the graft. Being on the left ankle and the heel as also shin of the left leg, movement ofthe appellant would certainly be restricted. Unfortunately, the Tribunal has awarded lump sum amount towards general damages. It is difficult to ascertain as to how much has been awarded towards pain and suffering, permanent disfigurement, less of enjoyment of the amenities in life etc.

28. Gravity as well as degree of deprivation has to be taken note of while awarding non-pecuniary loss. Degree of awareness of deprivation determines the degree of loss in enjoyment of full pleasures of life. Compensation awarded has to be commensurate with the injury. It cannot be a mere token damages.

29. There is 30 days hospitalisation. 3 skin grafting procedures had to be performed. Extent of injury is as noted in para 24 above. In my opinion, on account of damages for pain and suffering, compensation for loss of amenities of life, towards disfigurement and towards discomfort and inconvenience, the appellant must get at least Rs. 75,000/-. Further, keeping in view the injury it could reasonably be expected that the appellant, who was acting as a consultant, would not be able to render full services as hitherto fore. It could reasonably be expected that the appellant would suffer a loss of earning. Keeping in view the age of the appellant when accident took place, being 55 years, loss of future earning in the sum ofs.15,000/- would be a reasonable compensation.

30. Accordingly, damages awarded under the third head of 'general damages' are enhanced from Rs. 20,000/- to Rs. 90,000/- i.e. general damages are enhanced by Rs. 70,000/-.

31. CM. No. 11/2001 may now be dealt with. The appellant seeks to bring on record events which have transpired during the pendency of the petition. The events are that in 1999, the skin of the damaged limb ruptured and the appellant had to undergo skin grafting. Appellant prays that money spent on the surgery in the year 999 be recompensed.

32. It has long been recognized that injury sustained in one accident may be the cause of a subsequent injury. The injury sustained by the accident victims on the operating table is an example of that situation. So are the cases of suicide resulting from a depressed condition produced by an accident. Pigmey v. Pointers Transport Services Ltd., (1957) 2 All.E.R. 807. It is always a question of course for the court in each case to determine whether or not on the facts of that case, the accident did cause the second injury. Hogen v. Bentinck, (1949) 1 All.E.R. 588.

33. Question is, whether the injury sustained in the year 1999 as a consequence of the skin grafting performed in the year 1991 was reasonably foreseeable in 1991. As was conveniently summarised in Overseas Tangship (U.K.) Ltd. v. Miller Steamships Company, (1996) 2 All.E.R. 709, in such cases of subsequent injury, damages can only be recovered if the injury complained of not only was caused by the alleged negligence but also was an injury of a class or character foreseeable as possible result of it. Where consequence of an injury materialises, valuation can be effected with greater precision. Where consequences are only a risk, they attract less value. In determining liability for possible consequence, it is necessary to show that each was within the foreseeable extent or foreseeable scope of the original injury. The linkage is that the subsequent injury is attributable to the original negligence of the defendant so as to attract compensation.

34. Viewed in light of the legal position as noted above, the offender could not reasonably foresee that the surgery performed in the year 1991 would fail in the year 1999. That the appellant required another surgery in the year 1999 could be the cause of various unforeseen factors. It is difficult to link the surgery of 1999 to the act of negligence of the truck driver in the year 1991.

35. CM. NO. 11/2001 is accordingly dismissed.

36. Appeal stands disposed of by modifying the award pertaining to the award of general damages. The same is enhanced from Rs.20,000/- to Rs.90,000/-. Enhanced compensation shall be paid to the appellant together with interest @ 9% p.a. from the date of claim petition till the date of realisation. Liability to pay would be joint and several as per the award.

37. No costs.