Himachal Pradesh High Court
Deepak Singha vs Himachal Road Transport Corporation ... on 19 March, 1992
Equivalent citations: 1993ACJ299
JUDGMENT
Leila Seth, C. J.
1. These four appeals and two cross-objections are being taken up together as they arise out of a common accident and award.
2. On 25th August, 1980, an unfortunate accident took place. Bus No. HPS 3482 of the Himachal Road Transport Corporation, which was coming from Chandigarh and going to Thanedhar, hit and smashed the parapets and fell 35 metres below the road. The accident occurred at 4.30 p.m., 2 kilometres short of Narkanda on National Highway No. 22. Many persons were injured and it appears that three persons died in the accident but their heirs are not before us. Deepak Singha, Narotam Chand and Kirpa Ram filed claim petitions. A common award was made in these three cases on 31st August, 1982. This award has been challenged both by the Himachal Road Transport Corporation and the three injured claimants.
3. The first contention of learned Counsel for the Himachal Road Transport Corporation is that the accident in question was not due to the rash and negligent driving of the driver Ram Chander but was due to circumstances beyond his control. It is contended that the accident took place just after a blind curve and the surface of the road was rough and bumpy as it was being widened, so the driver lost control but he was not negligent.
4. The only person who has appeared on behalf of the Himachal Road Transport Corporation is A.D. Arora, Automobile Engineer, HRTC, Taradevi. He has stated that he inspected the spot and found that the road was being widened and it was quite rough and bumpy and there were a lot of potholes. Consequently, he opined that "a driver is likely to lose control of the steering if a vehicle gets a jump on a rough road". However, he has admitted in the cross-examination that a number of buses and trucks were plying on that road on the day of the accident and that the road is National Highway No. 22. He has admitted being a member of the enquiry committee on the accident, which was constituted by the order of the Deputy Commissioner, Shimla, as also Exh. PX, being a copy of the report of the said enquiry. The other members of the committee were the Deputy Commissioner, Shimla, Superintendent of Police, Shimla and the Executive Engineer, HP PWD, Kumarsain. It has been clearly stated in the said report that there was no mechanical defect in the vehicle and that after negotiating the curve preceding the spot of the accident, the driver lost control of the vehicle due to being at a high speed. Though the rough surface of the road may have been a contributory factor; further, after the driver lost control, the bus struck against the parapets, broke them and rolled down the valley side for about 35 metres.
5. The committee's opinion was that the cause of the accident was mainly due to the rash and negligent manner in which the vehicle was driven by the driver. The Deputy Commissioner, Shimla, Mohinder Lai, appeared as PW 5. He stated that he was Chairman of the enquiry committee as per the directions of the Government and he visited the spot on 28th August, 1980 and submitted his report, a true copy of which was proved by him, as Exh. PX. Admittedly, the said report has not been challenged by the Himachal Road Transport Corporation, nor has the driver been examined to disprove in any manner what is stated therein.
6. The statements of Chhaju Ram, a retired teacher and Paras Ram, a farmer, PW 3 and PW 4, respectively are both to the effect that they were travelling in the said bus when it met with an accident and the driver was driving it at an excessive speed; further Chhaju Ram had asked him to slow down but to no avail.
7. Consequently, it is apparent to us that the accident occurred due to the rash and negligent driving of Ram Chander, as the onus was on the Himachal Road Transport Corporation to prove that the accident was not the result of rash and negligent driving on the part of the driver, in the face of the above facts. Consequently, the finding of the Tribunal on this aspect cannot be disturbed.
8. Mr. K.D. Sood, learned Counsel who argued the case for Mr. Deepak Singha, has contended, first, that the quantum of compensation granted is inadequate, secondly, the Tribunal has erred in not giving interest from the date of institution of the claim petition and thirdly, the rate of interest granted is too low. Learned counsel for the respondent has not seriously contested the second and third contentions.
9. The facts of this case are briefly stated. Mr. Deepak Singha is a young man of 23. He belongs to an affluent family which is apparent from the fact that he studied at Lawrence School, Sanawar and thereafter graduated from Delhi University. At the time of the accident, he was a student of Master of Business Administration (M.B.A.) in the Himachal Pradesh University. He received an injury in his eye, as a result of which he lost permanent vision in his right eye and also lost one semester of his studies. He has claimed Rs. 2,50,000/- as compensation.
10. Dr. B.K. Sofat, Head of the Eye Department, Medical College, Shimla, PW 1, has clearly stated that Deepak Singha was admitted on 25th August, 1980, to the Snowdon Hospital; and on examination of his eyes it was found that his right optic nerve had been injured and there was no sight whatsoever in that eye; further, there is no cure for this injury and it is a permanent disability. Dr. M.L. Babu, Registrar, Department of Neuro Surgery, PGI, Chandigarh, has deposed that the petitioner was admitted on 6th September, 1980 and discharged on 12th October, 1980; he examined Deepak Singha on 8th September, 1980 and he was also shown to the consultant of ophthalmology, Dr. S. P. Dhir, who opined that there was no vision in the right eye; X-ray of the optic foramina showed a fracture on the right side 'with involvement of orbit'.
11. The petitioner himself was examined on 2nd March, 1982. He has stated that he was under treatment at the Snowdon Hospital and later on in PGI and the eye experts in both these institutions had opined that "eyesight in my right eye could not be restored anywhere in the world". He has further stated that he was a student of M.B.A. in the Himachal Pradesh University and as a result of this accident he could not clear his fourth semester as the study load was too heavy for his single eye. He has stated that he was a good student but after the accident, though his fellow students 'have cleared up their studies', he has not been able to do so and was consequently mentally depressed. He has gone on to say that prior to the accident he was driving a motor cycle but as a result of the accident he cannot drive any more and as a result of the loss of his right eye, his future prospects of a lucrative job were dim.
12. The petitioner's father, J.P. Singha, has appeared as PW 10. He has stated that his son sustained a fracture of the skull and completely lost sight in his right eye as a result of the accident. He got him treated first at the Snowdon Hospital, Shimla and later on in PGI, Chandigarh and spent Rs. 13,000/- to Rs. 14,000/- on his treatment. Further, prior to the accident, he received many offers of betrothal for his son but such offers ceased thereafter. He also said that he has provided a vehicle to his elder son and would have given one to Deepak but now that he cannot drive due to the loss of vision in his right eye, he will have to engage a driver for him. He also mentioned that Deepak remains depressed all the time.
13. The learned Tribunal has awarded Rs. 25,000/- under the head pain and suffering and loss of matrimonial prospects and other enjoyments of life. Nothing has been awarded for expenses on treatment and a sum of Rs. 60,000/- has been awarded as pecuniary loss on account of disability.
14. Mr. K.D. Sood has relied on a decision of the Gujarat High Court in Ahmedabad Municipal Corporation v. Niranjan Ambalal Patel 1981 ACJ 53 (Gujarat), where, in similar circumstances, a person was granted Rs. 37,500/- under the head pain and suffering and loss of amenities and enjoyment of life.
15. It is indeed difficult to assess how to estimate and compensate a person for pain and suffering and loss of amenities and enjoyment of life. It is trite to say that a person who loses an eye loses a great deal of the enjoyment of life. No doubt, he can still see despite his handicap but there is also always a lurking fear that if something happens to the other eye there will be total darkness. Consequently, he cannot live life to the full and will remain apprehensive of taking part in many sports and other activities. He has to be cautious and careful and the spirit of adventure has to be curbed. Good matrimonial prospects, in a country like ours, where marriages are normally arranged, are also reduced. It is, therefore, our considered view that the award of damages under this head requires to be raised from Rs. 25,000/- to Rs. 37,500/-, as was allowed in the above-mentioned decision, where the claimant was 21 years at the time of the accident and had lost an eye.
16. The petitioner's father, J.P. Singha, has stated, as above-noticed, that he spent Rs. 13,000/- to Rs. 14,000/- on the treatment of his son. There is no cross-examination with regard to this statement. In fact, he has not been cross-examined at all, despite an opportunity having been given. It is more than likely that the said amount was spent by the father; one can well imagine what the father must have felt when he became aware that his young son had lost an eye and he must have tried to ensure the best medical treatment for his son, so that some vision could be brought back to the right eye. Though his efforts were not successful, the money must have been spent. Nothing has been indicated in the award as to why this amount has not been granted to the claimant. It would appear to us that he is entitled to this amount, even though it has been spent by his father.
17. We will now deal with the question of pecuniary loss on account of disability. In this connection, it is necessary to refer to the evidence of Prem Chand Stokes, who had served in the ACC Ltd. as an Engineer for about twenty-six years and retired as Manager Incharge of Design Production and Organisation of Management of the Cement Plant Manufacturing Unit, Shah-bad Gulbarga in Karnataka. He had been responsible for selection, training and development of personnel at all levels of management. He was also a member of the Himachal Pradesh Public Service Commission from 1969 to 1973. Thereafter he was the Managing Director of Him Process from 1975 to 1980. As a member of the Public Service Commission he was involved in the recruitment and selection of personnel, including technical and educational staff. He has opined that while recruiting a person who is equally qualified, he would avoid choosing a person with one eye; as he would not be able to do the job as efficiently as a candidate with two eyes; and further if a candidate with one eye loses that eye during the course of his employment, the establishment would have to pay a very high compensation. He stated that a person holding the M.B.A. qualifications normally starts in the private sector on a salary of about Rs. 1,300/- per month and if he works diligently and efficiently he should draw around Rs. 5,000/- at the end of his career; further, normally, such a person would retire at the age of 60 but if he was highly talented he could continue till the age of 65. Consequently, his earnings would be an average of the two figures, that is, Rs. 1,300/- and Rs. 5,000/- multiplied by the years of service. He felt that the total loss of earnings on account of this handicap would be 20 per cent to 25 per cent of the total earnings. In cross-examination he has admitted that he has been recruiting handicapped persons, including persons who have lost an eye or a hand, as there was no bar to such recruitment; but normally such persons are recruited on compassionate grounds and then deployed on jobs which are not dangerous and further the prospects of future promotion in such cases are minimal.
18. Dr. M.K. Sharma, Head of the Department of Commerce and Business Administration at the Himachal Pradesh University, appeared as PW 8 and stated that he knew the petitioner who had been a student at the university. He further stated that as Head of the Department, he used to help his students in getting suitable employment by arranging interviews with prospective employers. He was clear and categorical that the loss of vision in one eye would affect the future career of Deepak Singha as his chances of getting employment would be dim; and even if he got employment in his discipline, that is, marketing administration, he would not be able to discharge his duties efficiently, as they involve dealing with the public; and handicapped persons normally develop complexes. He also stated that since the petitioner had lost one semester, he was not able to appear for any of the job interviews along with his class-fellows. He was also of the opinion that a person having an M.B.A. qualification starts off initially on a salary of Rs. 1,200/- to Rs. 1,500/- per month which goes up to around Rs. 6,000/- at the time of retirement.
19. From the above statements and facts, it is apparent that the petitioner is and will be handicapped with regard to getting a good and lucrative job. It is not easy to assess what lies in the future, but it is probable that if the accident had not occurred, after completing his M.B.A. course he would have got a job of Rs. 1,200 to Rs. 1,500/- per month and gone steadily on till retirement at the age of 60 to reach a figure of about Rs. 5,000/-. As a result of the accident the whole picture has changed. He lost one semester of his studies. His evidence has been recorded in early 1982 and he has stated that he did not finally complete his M.B.A. course as the work-load was too heavy for his single eye. We do not know whether thereafter he has completed the M.B.A. course or not and whether he is employed? But there is no doubt that job opportunities available to him have become limited as a result of the accident and his handicap. It appears to us that though it is difficult to estimate what would be the difference per month of his earning capacity, because of the imponderables and vagaries of life, a sum of Rs. 1,000/- per month worked out on an average from the beginning of his career till the end would be appropriate. But as has been noticed in the above-mentioned judgment, this cannot be taken to be the value of the financial damage which he might suffer in future on account of his injuries. As observed therein, there are many uncertainties. It is possible that for some reason or the other "unconnected with the accident, he might not have completed his academic career or even if he had completed the same, he might not have earned the income which he was reasonably expected to earn. He might have become injured in circumstances in which he might have received no compensation from any source. He might have met with an untimely death. Allowance must be made for all these contingencies or vicissitudes of life. On the other hand, in spite of his handicap, he might still find employment suitable to his present physical state and his expected earnings might rise higher than that estimated above". Consequently, the Gujarat High Court opined that taking all the relevant factors into consideration the amount should be halyed.
20. Consequently, following that decision we are of the view that the amount of Rs. 1,000/- should be reduced to Rs. 500/- per month, which will come to Rs. 6,000/- per year. The Tribunal has applied a multiplier of 12 years' purchase. It appears to us that this multiplier is on the low side, considering that Deepak Singha was only 23 years of age at the time of the accident. We think that 18 is a fair multiplier in the facts and circumstances of this case. Consequently, applying the multiplier of 18 we arrive at the figure of Rs. 1,08,000/- under the head 'loss of pecuniary earnings' and as a result, the total amount that Deepak Singha is entitled to will be Rs. 1,08,000/-+ Rs. 37,500/- for pain and suffering and loss of matrimonial prospects and enjoyment of life and Rs. 13,000/- for the medical treatment. All this comes to Rs. 1,58,500/-. He will also be entitled to interest at the rate of 9 per cent per annum from the date of institution of his claim petition till its payment.
21. Coming next to the case of Narotam Chand. He is a 56 years old agriculturist. He received a head injury and two of his right leg bones were fractured. He remained in hospital from 28th August, 1980, to 3rd September, 1980. His right leg was put in plaster on 25th August, 1980; he had to be replastered seven times. It was only on 15th October, 1981, that his plaster was finally removed. On each occasion he had to be brought in a taxi from his village Bhutti to Shimla for treatment when he stayed at the Sainik Rest House, Shimla.
22. He owns 25 bighas of land in village Kotidhar and 20 bighas of land in village Bankoti, both areas have been developed as apple orchards. He also has 12 bighas of irrigated land in village Naula. He has stated that he used to manage this land and the orchards himself and did the pruning, spraying, picking, packing and grading with his own hands. He used to go from one land to another on foot. Bankoti is admittedly at a distance of 12 kilometres from Kotidhar and Naula is 6 kilometres from there; consequently, after the accident he has not been able to do this easily. This has resulted in a lack of supervision and he has had to engage labour to do the other work resulting in a loss of Rs. 20,000/- to Rs. 25,000/-. According to him, he harvested about 2,500 to 3,000 apple cases in a normal crop year and earned about Rs. 70,000/- to Rs. 75,000 per annum. When he made his statement on 24th May, 1982, he said that he is still not in a position to move about, without a stick and could not squat; further, due to the head injuries he has developed high blood pressure and often feels giddiness. Thus he cannot manage to work with his hands and has had to engage two servants to do the work and supervise the orchards, etc., paying them Rs. 400/- per month each. He got himself medically examined on 27th March, 1982, for his right leg disability. The medical certificate, which was issued to him, is Exh. PZ and indicates that his is a case of an old healed fracture of both right leg bones which has resulted in the right leg being shortened by 1.5 cm and there is lateral angulation. The Professor and Head of the Department of Orthopaedic Surgery, Himachal Pradesh Medical College, Shimla, has opined in the disability certificate that this has resulted in 10 per cent permanent physical impairment and loss of physical function of the right lower extremity.
23. It is, therefore, clear to us that the petitioner has bad to engage staff to help him and that it is difficult for him to move freely from one orchard to the other or to his irrigated land. In Himachal Pradesh, as most of such areas are hilly, distances have to be covered on foot and consequently it is apparent that it must be difficult for the petitioner to move freely from one place to the other and cover a distance of 18 kilometres.
24. The Tribunal has awarded Narotam Chand a sum of Rs. 8,000/- for the expenses incurred on his treatment and Rs. 6,000/- for pain and suffering and deprivation of the enjoyment of life during this period and Rs. 10,000/- on account of pecuniary loss.
25. With regard to the amount awarded for his treatment, we are not inclined to interfere, as there was no clear statement or evidence about the details of this amount and a round figure was arrived at.
26. On the question of pain and suffering and deprivation of the enjoyment of life during this period, it appears to us that Narotam Chand has suffered greatly. His plaster had to be removed and replaced seven times because both bones of his right leg had been fractured. It must have required Job's patience and a great deal of endurance and suffering having one leg in plaster for fourteen months at the age of 56; we can well imagine what a harrowing experience this must have been. Consequently, we are inclined to raise this amount to Rs. 12,000/- from Rs. 6,000/-.
27. On the question of pecuniary loss, it would appear to us that Narotam Chand has had to spend a good deal on staff. He has stated that one servant costs Rs. 400/- per month; further, he employed two servants. Even if we take it that he employed one servant, it would cost him about Rs. 4,800 per annum or say Rs. 5,000/- per annum. Applying a multiplier of 4 we arrive at a figure of Rs. 20,000/- under this head. Consequently, under this head we grant him Rs. 20,000/-.
28. As a result Narotam Chand will be entitled to Rs. 8,000/- + Rs. 12,000/- + Rs. 20,000/-, totalling Rs. 40,000/-, whereas his claim was for Rs. 70,000/-. He will also be entitled to interest at the rate of 9 per cent per annum from the date of institution of his claim petition till payment.
29. Now we come to the case of Kirpa Ram, a meter reader and a bill clerk, who suffered a head injury and dislocation of his hip. He was aged about 29 years and was admitted to hospital on 25th August, 1980 and discharged on 9th September, 1980, but remained in plaster till 26th September, 1980. Admittedly, his daily wage earning was Rs. 9.50 per day. He has made a claim of Rs. 1,00,000/-.
30. The learned Tribunal has awarded him Rs. 10,000/- on account of pain and suffering, Rs. 3,000/- as expenses incurred on his treatment and Rs. 900/- on account of loss of salary for the period he remained absent from duty on account of the accident.
31. There is no medical evidence to indicate that the injuries of Kirpa Ram are of a permanent nature. In fact, it appears that the sum of Rs. 900/- granted to him for loss of earning is the actual amount which he suffered and that thereafter he went back to work and has been earning regularly. His statement was recorded on 26th May, 1982 and there is no averment that as a result of the injury there has been any loss in his earning capacity, except that he remained absent from duty from 22nd August, 1980, to 15th November, 1980.
32. In fact, Mr. Jistu, learned Counsel for Kirpa Ram, has not seriously pressed either for enhancement of this amount or the amount granted on the ground of medical treatment. He has confined his contention for enhancement to the ground of pain and suffering and loss of enjoyment of life. It would appear to us, in the facts as indicated above, that Kirpa Ram went back to work on 15th November, 1980 and the only difficulty he had to undergo was to discontinue his studies of B.A. Part II for a time on account of the head injury sustained in the accident. In our opinion, the amount of Rs. 10,000/- awarded under this head is adequate and does not require any interference. However, Kirpa Ram, like the others, will be entitled to interest at the rate of 9 per cent per annum from the date of institution of his claim petition till payment.
33. Consequently, the appeals of the Himachal Road Transport Corporation are dismissed and the appeal of Deepak Singha and the cross-objections of Narotam Chand and Kirpa Ram are partly allowed. However, we make no order as to costs.