Sh.Chander Kumar vs Shri Rajinder Kumar Gandotra And ...
2011 Latest Caselaw 58 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO NO. 191/1997 and CM No. 14255/2007

SH. CHANDER KUMAR                                   ..... Appellant
                            Through:   Mr. Navneet Goyal, Advocate
                                       with the appellant in person.

                   versus

SHRI RAJINDER KUMAR GANDOTRA AND ORS. ..... Respondents
                   Through: Mr. Pankaj Seth, Advocate, for
                            the respondent no.3.


%                           Date of Decision : January 06, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

                            J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

This appeal has been preferred under Section 173 of the Motor

Vehicles Act, 1988 for enhancement of compensation of ` 80,000/-

as awarded by the learned Motor Accident Claims Tribunal to

` 6 lakhs on account of the injuries sustained by the appellant in a

motor vehicular accident.

2. Briefly delineated the facts as set out in the claim petition

instituted by Smt. Neelam, the wife of the appellant is that the

appellant was hit by bus bearing no. DEP 7010, plying on the date of

the accident, under the Delhi Transport Corporation. It is alleged that

at the time of the accident on 10th March, 1989 the bus in question

was being driven by the respondent no.1 near the Police Lines, on

Bhama Shah Marg, within the jurisdiction of Police Station Kingsway

Camp. It is not in dispute that the bus was owned by the respondent

no.2 and insured with the respondent no.3-The New India Assurance

Company Ltd. The factum of the accident was also admitted by the

respondents no.1 and 2 in the joint written statement filed by them to

the claim petition. Respondent no.3, however, sought to deny the

same for want of knowledge.

3. As stated above, initially the petition was preferred by Smt.

Neelam, wife of the injured on the ground that the appellant had

sustained injuries which had resulted in his being hospitalized since

the date of the accident, and he having remained intermittently in

coma on account of the injuries sustained on his head, had lost all

sense of proportion. An objection having been raised to the

maintainability of the petition, however, the appellant himself joined

the proceedings by moving an application in this regard before the

Claims Tribunal.

4. On the pleadings of the parties, the Tribunal framed seven

issues and thereafter embarked upon the process of enquiry by

examining the three witnesses summoned by the appellant. The

respondent, however, did not choose to examine a single witness nor

in fact chose to cross-examine the witnesses of the appellant,

including the appellant himself.

5. After scrutinizing the evidence on record, the Tribunal came to

the conclusion that there was no reason to disbelieve the testimony of

PW1, the appellant, which clearly demonstrated the gross negligence

and rashness on the part of the respondent no.2 in driving the bus in

question at the relevant time, which undoubtedly resulted in the

collision. The Tribunal noted that the PW1 had affirmed that as a

result of the impact, he fell down and sustained injuries on various

parts of his body including his head. He testified that he had lost

consciousness and was removed to the hospital where he underwent

prolonged treatment. This was corroborated by PW2, his wife-Smt.

Neelam, and also by the voluminous records brought by the PW3, the

record clerk from the LNJP Hospital, running into 32 pages which

were collectively marked as Ex.PW3/A. The Tribunal further noted

that the hospital record showed that the injuries sustained by the

appellant included head injury with left side intra-cerebral

haematoma, left side fracture of ischiopubic remi with intracondyler

fracture of tibia and fibula. The hospital record further showed that

the initial treatment was taken by the appellant in the LNJP Hospital

from 10th March, 1989 to 14th April, 1989. Significantly also the

record of the LNJP Hospital showed that the appellant was in an

unconscious state most of the times during his hospitalization in the

said hospital.

6. After noticing that the injuries sustained by the appellant were

quite dangerous which could even have proved fatal and that the

appellant had to undergo a long spell of coma during which two

surgical procedures were carried out and that he had undergone

protracted treatment, the Tribunal awarded to the appellant the sum of

` 80,000/- towards compensation in the following manner: -

      Loss of earnings          :      ` 25,000/-

      Future prospects          :      ` 10,000/-

      Medical expenses, Diet,
      Conveyance etc.         :        ` 15,000/-

      General Damages           :       ` 30,000/-
                                    _________________
                   Total                ` 80,000/-
                                    _________________

7. It may be noted that the appellant had claimed that he was a

self-employed businessman engaged in trading and was earning about

` 5000/- per month on the date of the accident. This fact was

affirmed by the appellant on oath. No material to the contrary having

been brought on record by the respondents and the respondents, in

fact, having chosen not to cross-examine either the appellant or his

witnesses, the Tribunal proceeded to assess the loss of earnings of the

appellant for a period of about five months, i.e. from the date of the

accident till some time after the filing of the petition on the premise

that the appellant was still under treatment at the time of the

institution of the petition. By this process of reasoning, the loss of

earning was calculated to be in the sum of ` 25,000/- (i.e. ` 5000/- x

5 months).

8. As regards the future prospects, the learned Tribunal noted that

as the injuries sustained by the appellant were quite serious, in fact

dangerous, and included injuries on the head, which resulted in the

appellant having remained in coma for a long time, this was bound to

adversely affect his future prospects. In these circumstances, the

Tribunal awarded a compensation of ` 10,000/- for the loss of future

prospects.

9. As regards the medical expenses, diet and conveyance, a

lumpsum amount of ` 15,000/- was awarded by the Tribunal after

again noting that the injuries were serious in nature. A further sum of

` 30,000/- was awarded towards the general damages on account of

pain and suffering, etc.

10. The contention of Mr. Navneet Goyal, the learned counsel for

the appellant is that the amount awarded by the Tribunal is too

meager to qualify for being called just and fair to the injured. Mr.

Goyal contended that the medical evidence on record proved by PW3

(32 sheets exhibited as PW3/A) conclusively establishes that the

nature of the injuries sustained by the petitioner was "dangerous".

The appellant had remained in coma for one full month. Apart from

sustaining head injury, he had sustained four fractures on his left foot

resulting in two surgical procedures being conducted and the insertion

of a rod in his foot. The appellant had testified that his right side was

paralyzed, that he could not sit for long hours nor he could drive a

two-wheeler scooter. The aforesaid testimony of the appellant was

not subjected to cross-examination. PW2 in her statement testified

that after remaining for a day in the Hindu Rao Hospital, the appellant

had been shifted to the LNJP Hospital where he remained

unconscious for 29 days, as blood had clotted in his brain. She

further testified that she had spent ` 1 lakh on his treatment in the

hospital, that he was rendered mentally unfit and was still under

treatment and was incapable of carrying on the work which he was

doing, namely, that of watch repair. PW2 further testified that the

appellant was taken by her to Sir Ganga Ram hospital and then to

Sehgal Nursing Home for treatment. None of these assertions had

been disputed by the respondents.

11. Mr. Pankaj Seth, the learned counsel appearing for the

respondent no.3-Insurance Company, however, sought to support the

award on the ground that the learned Tribunal had awarded

compensation on the basis of the documentary evidence on record and

the same was just and fair. Mr. Seth submitted that there was no

documentary evidence to show that the appellant had been

permanently disabled by the accident and thus, the enhancement of

compensation was not warranted.

12. Having considered the matter from all angles and also the fact

that the appellant has not placed on record any certificate from a

government hospital to show that he is suffering from any permanent

disability, I am of the view that the amount of compensation awarded

by the Tribunal, is nevertheless, on the lower side. The learned

Tribunal, has, in the course of rendering the award observed at several

places that the nature of the injuries sustained by the appellant were

serious and even dangerous in nature to which he could have easily

succumbed. This being so, and the appellant having stated on oath in

the witness box that he could neither sit for long nor drive a car nor

carry on his normal work, the learned Tribunal ought to have taken all

these circumstances into account, more so, as they have emerged

unrebutted on the record. A serious head injury with left side intra-

cerebral haematoma, resulting in the patient going into coma, coupled

with the fact that the appellant admittedly underwent protracted

treatment in LNJP Hospital, Ganga Ram Hospital and Sehgal Nursing

Home, even though the same is not supported by a permanent

disability certificate, must have had serious repercussions with regard

to the earning capacity of the appellant as also his day-to-day life.

Thus viewed, I am inclined to enhance the compensation as under:

Loss of earning          :      ` 60,000/- (` 5000/- x 12 months)

Future Prospects         :      ` 25,000/-

Medical Expenses         :      ` 15,000/-




 Diet                          :   ` 10,000/-

Conveyance                    :   ` 10,000/-

Pain and suffering            :   ` 50,000/-

Loss of amenities of life :       ` 50,000/-

12. In view of the aforesaid discussion, the appellant is held

entitled to a total compensation of ` 2,20,000/- (including the interim

award, if any, already paid) along with interest @ 12% per annum

from the date of the institution of the petition till the date of

realization. The award dated 12th February, 1997 is modified to the

aforesaid extent.

13. The appeal stands disposed of accordingly.

REVA KHETRAPAL (JUDGE) January 06, 2011 sk