Delhi High Court
Yad Ram Sharma vs Hari Singh & Anr. on 17 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th May, 2012
Pronounced on: 17th May, 2012
+ FAO.No.94/2002
YAD RAM SHARMA ..... Appellant
Through: Mr. R.K. Dhawan with
Ms. Shweta Joshi, Advocates.
Versus
HARI SINGH & ANR. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant seeks enhancement of compensation of
`2,25,000/- awarded to him for having suffered injuries in an
accident which occurred on 16th February, 1992.
2. The compensation awarded was reduced by 50% on the ground
that the Appellant was himself negligent and contributed to the
accident.
3. The compensation awarded is tabulated hereunder:-
Sl.No. Compensation under various Awarded by the Claims
heads Tribunal
1. Medical Expenses `2,03,357/-
2. Conveyance Expenses ` 20,000/-
3. Special Diet ` 10,000/-
4. Loss of earnings ` 72,000/-
(`3000x24 (months)
5. Pain & Suffering `45,000/-
6. Loss of amenities & normal `1,00,000/-
happy life, loss of future earning
capacity & shortening of life
span
Total ` 4,50,000/-
4. According to the Appellant on 16th February, 1992 at about 1.30
p.m., he was proceeding to Sangam Vihar from Sarvodaya
Enclave, when he was hit by a DTC bus bearing No. DEP
9892, which was being driven in a rash and negligent manner.
He received multiple fractures and injuries on his right lower
limb. He was immediately removed to AIIMS and was then
shifted to National Chest Institute on 18th February, 1992.
5. In order to establish his case, the Appellant examined as many
as eight witnesses. First of all I would deal with the question of
negligence or for that matter the question of contributory
negligence.
6. Respondent Hari Singh, the driver of the DTC bus was
acquitted for the offence punishable U/s 279/338 IPC by a
judgment dated 17th April, 1998 passed by the Learned M.M.
New Delhi. It is well settled that a Claims Tribunal or a Court
while dealing with a claim petition under Section 166 of the Act
has to form an independent opinion if culpable negligence on
the part of the driver of the offending vehicle has been
established or not. It has to be borne in mind that the standard
of proof required in a criminal case in establishing the guilt of
an accused is beyond reasonable doubt whereas in a claim
petition the negligence is required to be proved on the
touchstone of preponderance of probability. (Bimla Devi and
Ors. v. Himachal Road Transport Corporation and Ors., (2009)
13 SC 530, and Parmeshwari Devi v. Amir Chand and Ors.,
(2011) 11 SCC 635).
7. Turning to the instant case, the Claims Tribunal dealt with the
issue of negligence in para 5 of the judgment. It would be
fruitful to extract the same hereunder for ready reference:
"Claimant Yad Ram who has appeared as PW-8 and the
pillion rider on the scooter of the claimant Shri Raghu
Nath has been examined as PW -3. PW-6 is a police
official, who proved copy of the FIR as Ex. PW 6/1 and
PW 5 is an official from AIIMS where the claimant had
been remained after this accident and witness proved
MLC Ex. PW 5/1. PW-3 as well claimant have stated on
oath that on 16.02.1992 they were coming on a two
wheeler scooter from survodhya Enclave side and were
to go to Sangam Vihar. Scooter reached T Point Saket,
M.B. Road and scooter took left turn towards Khan Pur.
On that very point of time a DTC bus DEP 9892 hit
scooter from back side and the scooter fell on the road.
Right leg of the claimant Yad Ram came under the wheel
of the bus and claimant was dragged upto about 10 feet.
As against statement of these two witnesses, respondent
driver of the DTC bus has also appeared in evidence as
RW-1. He states on oath that he was coming from village
Mandi side i.e. from Mehrauli side and reached near
Saidulazab village. He slowed down the speed of his bus
as the bus was approaching bus stop. Meanwhile a
scooterist with a pillion rider came from left side of the
bus from left side approaching road and scooter was
being driven in a rash and negligent manner and it came
on the main road. On seeing the bus, scooterist lost
control over his vehicle and he met with this accident
entirely due to his own fault and negligence. In cross-
examination respondent admits that at the time of impact
scooter was ahead of the bus and the bus had hit the
scooter from behind. Ld. claimant counsel took up this
admission in cross-examination and emphasized the
claimant case that when scooter was hit by bus from its
behind then fault has to be held on the part of bus driver
as the bus driver ought to have slowed down speed of his
bus before bus hit scooterist. On the other hand it has
been argued from respondent side that claimant Shri Yad
Ram Sharma in his cross-examination says that speed of
his scooter at the time of accident and at the time when
he took left turn on T Point M.B. Road towards Khan Pur
was about 30-35 kmph. But then he further says in cross
that speed of the bus was around 60-70 Kmph. Claimant
further admits in cross that when he took left turn on the
M.B. Road the bus was around 40-50 feet behind on the
main road coming from Mehrauli side. He further says
that the place where the bus collided with the scooter
was about 15 feet from the point he had taken turn on the
road towards left. While appreciating this evidence site
plan Ex. PW 6/2 which police had prepared regarding
this accident has also been referred to by both sides
counsel and its correctness has not been disputed. It has
been submitted from respondent side if claimant driving
two wheeler scooter has taken left turn on the main M.B.
Road having come from the approach road at T. Point
then speed of his scooter as claimant admits as 30-35
Kmph was a negligent driving. It was duty of the
claimant while approaching main M.B. Road having
come from approach road to slow down the speed of his
scooter considerably and rather to stop his vehicle at T.
Point before proceeding to take left side turn and to see
that no vehicle was coming from his right side on the
main M.B. Road and if there was no vehicle only then to
proceed. It has been referred from site plan Ex. PW 6/2
that the place of impact is almost middle of the road and
the width of one side of this double road is about 26 feet.
It has been argued that if scooterist claimant by his own
unreasonable high speed of the scooter while
approaching main M.B. Road has come almost on the
middle of the road then accident must taken cause of his
own fault and negligent driving. Acquittal Judgment
from the Criminal Court has been quoted in support of
this submission. I have appreciated these arguments and
evidence and I reach a conclusion that cause of accident
is a fault and negligent driving on the part of claimant
himself as well on the part of driver of DTC bus in the
ratio of 50:50. Admittedly claimant is coming from Saket
side which is approach road and merges into main M.B.
Road at T. Point. While approaching main M.B. Road a
reasonable and proper caution on the part of claimant
scooterist required claimant to slow down speed of his
scooter while approaching main M.B. Road and to take
left turn on the road only after observing traffic on the
road. As claimant himself admits in cross that speed of
his scooter was around 30-35 Kmph when he took left
turn, the position is made more clear by the site plan Ex.
PW 3/1 which shows that the accident has taken place
just on the middle of the road and width of the one side
road of this double road is around 26 feet. Certainly
driving scooter at a sped of 30-35 Kmph while
approaching the main road from approaching road was
disregard to a cautious driving. It was duty of the
claimant to slow down speed of his scooter considerably
so that while approaching main M.B. Road scooter
abruptly did not come in the middle of the road I find
claimant failed to observe this reasonable caution. Then
respondent driver of the DTC bus cannot also escape the
consequences of negligent driving. If driver is on the
main M.B. Road, while approaching t. Point he ought to
have slowed down speed of his bus. The fact that scooter
as well the claimant were dragged on the road for a
distance of about 10 feet as claimant has deposed which
should not disbelieved keeping in view finally the nature
of injury claimant suffered, fact indicates the speed in
which the bus was being driven. It is a fact that claimant
had already entered inside the main M.B. Road and as
claimant says in cross-examination that he had already
covered 15 feet when the bus hit his scooter from behind.
The circumstances indicate that bus was being driven in
a speed without caring that it was entering T. Point
junction on the main road and continuing such a speed
was a negligent driving. Had speed of the bus been
controlled by its driver respondent then even if impact
would have been inescapable, its gravity and effect would
not have been so sound and serious that bus dragged the
scooter of the claimant for a distance of around 10 feet
on the main road."
8. The site plan Ex.PW6/2 was proved by PW Atiq Ahmad who
was posted as Duty Officer in the case. The correctness of the
site plan is not disputed by the Appellant. A perusal of the site
plan shows that bus No. DEP 9892 was coming on main
Mehrauli Badarpur Road. It was proceeding towards Khanpur
from Mehrauli. The two wheeler driven by the Appellant
came from a side road and entered the main Mehrauli Badarpur
Road. The accident took place just near the T. Point. The two
wheeler at the time of the accident was almost in the middle of
the left carriage way (a little towards right side). This clearly
indicates that the two wheeler driver i.e. the Appellant was
either totally unmindful of the traffic coming on the main road
or he was driving the two wheeler at an excessive speed. In any
case, anybody entering the main road from a side road is
expected to slow down and to wait for the clearance of the
traffic. That having not been done by the Appellant, he was
equally guilty of contributory negligence irrespective of the fact
that the DTC bus was driven at a high speed by Respondent
No.1. Thus, the finding of fact with regard to the contributory
negligence reached by the Claims Tribunal cannot be faulted.
9. Now I shall advert to the compensation payable to the
Appellant. Section 168 of the Motor Vehicles Act enjoins the
Tribunal to make an award determining the amount of
compensation which appears to be just. In the case of General
Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas (Mrs.) and Ors. (1994) 2 SCC
176, it was held as under:-
".....that the determination of the quantum must answer
what contemporary society "would deem to be a fair sum
such as would allow the wrongdoer to hold up his head
among his neighbours and say with their approval that
he has done the fair thing". The amount awarded must
not be niggardly since the "law values life and limb in a
free society in generous scales". At the same time, a
misplaced sympathy, generosity and benevolence cannot
be the guiding factor for determining the compensation.
The object of providing compensation is to place the
claimant(s), to the extent possible, in almost the same
financial position, as they were in before the accident
and not to make a fortune out of misfortune that has
befallen them."
10. The details of the surgeries undergone was deposed in detail by
PW 4 Dr. A.P. Singh, Orthopaedic Surgeon who was the
consultant at National Chest Institute at the time of the
Appellant's treatment. He deposed as under:-
"I myself examined Sh. Yad Ram on 18.02.1992 and
thereafter on many occasions and still Sh. Yad Ram is
under my treatment. Sh. Yad Ram was suffering from
compound fracture, dislocation of right knee lateral
femoral condole right knee with gangrene of the entire
circumfrancial skin lower one third right thigh and upper
half right leg as well as loss of lateral collateral ligament
and popliteus tendon and distruction of the entrolateral
knee capsule. In addition he was suffering from acute
Oliguria due to drug Nephrotoxicity and Septiciaemia.
He had to be admitted in National Chest Institute
between 18.02.1992 and 18.04.1992 and underwent three
surgeries in which devriedment of wounds fixation of
fractures and multiple skin drafting were done. These
operations were done on 19.02.1992, 18.03.1992 and
13.04.1992. He underwent paritionial dialysis twice and
25 blood transfusions. Sh. Yad Ram present in the court
and I identify him who is under my treatment till date. I
issued a certificate with regard to the permanent
disability and discussion of right knee joint on
19.08.1994 which Ex. PW 4/1. It bears my signature and
is written by me. I also issued the detailed certificate
with regard to the treatment of Sh. Yad Ram Sharma who
was injured in the road accident with DTC Bus on
16.02.1992 which is Ex. PW 4/2. The certificate is
written and signed by me. I also issued certificate on
19.09.1993 in respect of the on going treatment of Mr.
Yad Ram Sharma which is Ex. PW 4/3. It bears my
signature. The petitioner Yad Ram Sharma also requires
further surgery in view of the severe changes, of
destruction in the knee joint. He is likely to require
further surgery which include removal of kanils and
possibility later on total knee replacement and
degernation sets in. Petitioner is visiting me once in a
every month for regular check up because of complaints
of pain, weakness in the knee, break down of skin,
dressing. The petitioner likely to have subsequently more
problems because of total destruction of the knee and
removal which may be required afterwards as I have
detailed above. The petitioner will be further required to
go minimum two surgery afterwards and one surgery is
required present for removal of nails. The right leg will
never regain its proper shape cosmetically which has
been disfigured because of injuries and due to surgeries
which are required to be performed at regular intervals.
The patient is suffering from permanent disability. The
petitioner will never be able to squatt on the floor
through his life. In the initial treatment the cost has been
incurred by the petitioner to the extent of lakhs on
medicines, surgery and stay in the nursing home and the
petitioner on further regular check up and on treatment
expenses which are might be incurred by the petitioner
on its regular check up should be between `30,000/- to
`35,000/-. The petitioner is further required to undergo
two more surgeries. There were other injuries and
treatment which have been carried out by other doctors
and nursing home."
11. I shall now deal with the compensation under each head.
MEDICAL EXPENSES:
12. The Appellant claimed that he had already spent a sum of
`3,05,397/- on his treatment. He proved on record the bills Exs.
P-1 to P-31 in respect of his hospitalization, tests undertaken
and the medicines purchased. The Appellant himself totaled it
up at Mark-X as `2,03,357/- which was awarded to him by the
Claims Tribunal.
13. The Appellant's grievance is that he was not awarded a sum of
`18,000/- and `14,500/- regarding purchase of 21 units of blood
and customized stockings respectively. The Claims Tribunal
observed that some of the bills on record were in respect of
purchase of the customized stockings i.e. Exs. P-131, P-81, P-
89, P-90 & P-92. As it is not the Appellant's case that he had
misplaced some of the bills for purchase of the stockings. Thus
Exs. P-81, P-89, P-90, P-92, and P-131 itself totals up to `
6,275/-. The Claims Tribunal was, therefore, justified in
granting a sum of `2,03,357/- towards medical treatment
including the sum for the knee stockings purchased by him.
14. The Appellant claimed that he spent ` 18,000/- for purchase of
21 units of blood. This was corroborated by PW-4 Dr.
A.P.Singh. This part of the Appellant's testimony was not
challenged in cross-examination thus although the Appellant
has not placed on record any receipt regarding purchase of
blood but considering the nature of injuries, three surgeries
undergone by him and his unchallenged testimony, I would
award him a sum of `18,000/- towards purchase of 21 units of
blood.
CONVEYANCE CHARGES:
15. The Appellant testified that he spent `65,650/- on conveyance
(Auto Rickshaw charges) from 20.02.1992 to 30.06.1993. He
has not stated the total number of visits to the hospitals/various
doctors and the amounts spent on each visit. As per the Claim
Petition, the Appellant was a resident of Sangam Vihar and
most of his visits could be presumed to have been to National
Chest Institute and Research Centre, Gautam Nagar. Although
the Appellant has not placed on record any bills or documents
regarding his visits to the hospital/consulting doctors, yet I
would assume that the compensation of `20,000/- awarded
under this head was sufficient to defray conveyance expenses
for at least 100 visits as per the scale of auto rickshaw fares in
the year 1992-93. No interference is called for in the award
under this head.
SPECIAL DIET:
16. The Appellant claimed a sum of `23,890/- for purchase of fruits
and juices. No bills have been proved for the same.
Considering the nature of injuries, three surgeries undergone by
him and the long duration of the treatment, the compensation of
`10,000/- awarded towards special diet needs to be enhanced. I
accordingly enhance it to `20,000/- from `10,000/-.
LOSS OF EARNING:
17. The Appellant was awarded a compensation of `72,000/- for
loss of earning for 24 months @ `3000/- per month. It is urged
by the Learned counsel for the Appellant that the Appellant had
an income of `6,000/- per month at the relevant time. No
documentary evidence was placed on record in respect of this
income. Any income beyond `30,000/- per annum i.e. `2500/-
per month was taxable. In the absence of any Income Tax
Return or any other evidence, the Claims Tribunal was quite
benevolent in awarding a sum of `72,000/- towards loss of
earning.
PAIN AND SUFFERING:
18. It is difficult to measure in terms of money the pain and
suffering which is suffered by an injured on account of the
serious injuries caused to him in a motor accident. Since the
compensation is required to be paid for pain and suffering, an
attempt must be made to award compensation which may have
some objective relation with the pain and suffering undergone
by the victim. For quantifying the compensation under this
head, the Claims Tribunal and the Courts normally consider the
nature of injury, the parts of body where the injuries were
sustained; surgeries (if any) undergone by the victim,
confinement in the hospital and at home and the duration of the
treatment. Moreover, the compensation has to be awarded
considering the value of money on the date of the accident.
19. In this case, the accident occurred in the year 1992. In case of
Govind Yadav v. New India Insurance Company Ltd. (2011) 10
SCC 683, the Supreme Court in case of amputation of leg above
knee awarded a compensation of `1.5 lakhs towards pain and
suffering in an accident which occurred in the year 2004. In the
instant case, the compensation of `45,000/- awarded towards
pain and suffering seems to be inadequate considering that the
Appellant suffered multiple fractures on the right leg, suffering
from compound fracture, lateral femoral condyle of right knee
with gangrene of the entire circumferential skin in the lower one
third of the right thigh and upper half of right leg as well as loss
of the lateral collateral ligament and popliteus tendon and
destruction of the anterolateral knee capsule. He also suffered
acute Oliguria due to drug Nephrotoxicity and Septiciaemia.
The same is enhanced to `60,000/-.
LOSS OF AMENITIES AND LOSS OF FUTURE EARNING
CAPACITY:
20. A compensation of Rs.1 Lakh was awarded towards loss of
amenities and loss of future earning capacity. It is always
appropriate to grant compensation separately under pecuniary
and non-pecuniary heads.
21. First of all, I shall take up the matter of loss of amenities, loss of
expectation in life and disfigurement. PW 4 Dr. A.P. Singh
deposed that the Appellant's right leg will never regain its
proper shape cosmetically. The same had been disfigured
because of the injuries and due to successive surgeries
performed at regular intervals. He deposed that the Appellant
would never be able to squat on the floor throughout life. A
certificate dated 19.08.1994 (Ex. PW 4/1) was also issued by
Dr. A.P. Singh to the effect that the Appellant has suffered
permanent disability. The percentage of disability was not
given. During the course of the Appeal a permanent disability
certificate from Ram Manohar Lohia Hospital was filed which
quantified the permanent disability to be 20%. Thus taking all
the circumstances into consideration, a compensation of
`60,000/- is awarded towards loss of amenities, disfigurement
and loss of expectations in life.
LOSS OF EARNING CAPACITY:
22. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the
Supreme Court brought out the difference between permanent
disability and functional disability resulting in to loss of earning
capacity. It was laid down that the compensation on account of
loss of earning capacity has to be granted in accordance to the
nature of the job undertaken by a victim of a motor accident.
Paras 11 and 14 of the report are extracted hereunder:
"11. What requires to be assessed by the Tribunal is the
effect of the permanently disability on the earning
capacity of the injured; and after assessing the loss
of earning capacity in terms of a percentage of the
income, it has to be quantified in terns of money, to
arrive at the future loss of earnings (by applying
the standard multiplier method used to determine
loss of dependency). We may however note that in
some cases, on appreciation of evidence and
assessment, the Tribunal may find that percentage
of loss of earning capacity as a result of the
permanent disability, is approximately the same as
the percentage of permanent disability in which
case, of course, the Tribunal will adopt the said
percentage for determination of compensation (see
for example, the decisions of this Court in Arvind
Kumar Mishra v. New India Assurance Co. Ltd.
2010 (10) SCC 254 and Yadava Kumar v. D.M.,
National Insurance Co. Ltd. 2010 (10) SCC 341.
x x x x x x x
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual
loss of earning capacity may virtually be hundred
percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a
clerk in government service, the loss of his left
hand may not result in loss of employment and he
may still be continued as a clerk as he could
perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in
the case of a driver or carpenter, nor 60% which is
the actual physical disability, but far less. In fact,
there may not be any need to award any
compensation under the head of 'loss of future
earnings', if the claimant continues in government
service, though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not found suitable for discharging the duties
attached to the post or job which he was earlier
holding, on account of his disability, and may
therefore be shifted to some other suitable but
lesser post with lesser emoluments, in which case
there should be a limited award under the head of
loss of future earning capacity, taking note of the
reduced earning capacity."
23. Thus the same disability may have a different impact on the
earning capacity of an injured following a different vocation. In
the instant case, the Appellant deposed that he was a
professional working in the field of Jali work. He was earning
`5000/- per month at the time of the accident and his income
would have increased with his experience. As stated earlier PW
4 Dr. A.P. Singh deposed that he cannot squat on the floor. The
Appellant's testimony that he was a craftsman in wood
architecture was not challenged in cross-examination. As stated
earlier, his income was estimated by the Claims Tribunal to be
about `3000/- per month which in my view was quite liberal. I
would take the Appellant's loss of earning capacity as per his
disability i.e. 20% and award him a compensation of
`1,15,200/- (3000x20%x12x16). The overall compensation as
against `4,50,000/- thus comes to ` 5,68,557/-.
24. Thus, the compensation is reassessed as under:
Sl. Compensation under Awarded by
various heads this Court
No.
1. Medical Expenses `2,03,357/-
2. Expenses for Purchase of `18,000/-
Blood(21 units)
3. Conveyance Expenses ` 20,000/-
4. Special Diet ` 20,000/-
5. Loss of Earnings ` 72,000/-
6. Pain and Suffering ` 60,000/-
7. Loss of Amenities ` 60,200/-
8. Loss of Future Earning ` 1,15,200/-
Capacity
Total ` 5,68,557/-
25. I have already held above that the Appellant has also
contributed to the negligence and the share of the contributory
negligence was assessed by the Claims Tribunal to be 50%
which seems to be quite reasonable.
26. Thus, the overall compensation is enhanced from `2,25,000/- to
`2,84,278/-. The enhanced compensation of `59,278/- shall
carry interest @ 9% per annum from the date of filing of the
Claims Petition up to the date of the award i.e. 27.10.2001 and
@ 7.5% per annum from 28.10.2001 upto the date of payment.
27. Respondent No.2 DTC is directed to deposit the enhanced
amount of compensation along with interest in the name of the
Appellant in UCO Bank, Delhi High Court Branch within six
weeks.
28. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 17, 2012
pkv
