Punjab-Haryana High Court
Swatantra Kumar Lamba And Anr. vs Sheila Didi And Anr. on 24 February, 1987
Equivalent citations: II(1987)ACC179
JUDGMENT D.V. Sehgal, J.
1. This judgment shall dispose of F.A.O. Nos. 509 of 1981, No. 2 of 1982 and No. 33 of 1982, as all of them are directed against an award dated 28-5-1981 made by the Motor Accident Claims Tribunal Chandigarh (for short the Tribunal).
2. An accident took place on January 22, 1979 at about 1.15 p m. at Chandigarh, near M.L.A. Flats, on the road dividing Sectors 3 and 6, Arun Nehra, Advocate, the appellant in F.A.O. No. 33 of 1982 was driving Scooter No. CHO-4664. Mrs. Sheila Didi, Bar-at-law, was sitting on the pillion seat of the scooter. Arun Nehra turned towards the M.L.A. flats after giving indication with his hand from a distance. While approaching the turning he had slowed down the speed of the scooter, Car No. CH-4210 owned by Swatantra Kumar Lamba, the appellant in F.A.O. No. 2 of 1982 and driven by Rajinder Kumar respondent No. 2 therein, came from the opposite direction at a rash and negligent speed and hit the scooter. Arun Nehra with Mrs. Sheila Didi were thrown off the road because of the impact of the car on the scooter. The scooter was dragged for some distance by the car when because of application of brakes it came to a halt. No horn was blown by the driver of the car. He disregarded the traffic on the road. As a result of the accident, Arun Nehra and Sheila Didi received multiple serious injuries. The scooter of Mr. Nehra was also damaged. Both of them filed claim applications before the learned Tribunal under Section 110-A of the Motor Vehicles Act, 1939, (for short 'the Act') wherein they claimed Rs. 2,50,000/- each as compensation for mental and physical pain, past, present and future expenses, permanent disability, loss of enjoyment of life, loss of earning capacity and loss of income Besides, Arun Nehra claimed compensation for damaged to the scooter. He stated that on the day of the accident, he started from the High Court at lunch time and was going to leave Mrs. Sheila Didi at her residence in M.L.A. Flats, in Sector 3.
3. The claim was opposed by the owner of the car Rajinder Kumar, its driver, as also the Oriental Fire and General Insurance Company, its insurer, through their separate written statements. They denied that the accident was caused due to rash and negligent driving of the car by its driver. They denied that Arun Nehra gave any signal or slowed down the speed of his scooter before turning from dividing road of sectors 3 and 10 to the connecting road leading to M.L.A. Flats. They also denied that the scooter was struck by the car. Instead it was pleaded that Rajinder Kumar driver of the car was going on the road at a slow speed on his correct left hand side. When he reached near M.L.A. Flats, a scooter was seen coming from the opposite side with a pillion rider. Rajinder Kumar blew the horn. However, the scooter driver suddenly took a turn towards his right without giving any indication whatsoever. At that time, he had crossed 3/4th of the T-crossing. The scooter driver continued taking the turn and thereby struck against the bumper of the car. It was thus pleaded that the accident took place because of the rashness and negligence, want of proper care and non-observance of rules of traffic on the part of the scooter driver. The claim of compensation was stated to be highly exaggerated.
4. The learned Tribunal on the basis of the pleadings of the parties, framed the following issues which were common in both the claim applications:
(1) Whether the accident took place due to rash and negligent driving of Car No. CH-4210 by Rajinder Kumar respondent No. 2 resulting in causing injuries to the claimants ?
(2) How much compensation, if any, the claimant is entitled to and from which of the respondents ?
(3) Relief.
The learned Tribunal for purposes of trial, consolidated both the claim applications and received evidence of the parties. After the appreciation of the evidence brought on the record, it held under issue No. 1 that the accident was the result of contributory negligence of Rajinder Kumar driver of the car as also Arun Nehra, the scooterist and apportioned the negligence at 40 per cent and 60 per cent respectively. While deciding issue No. 2, the learned Tribunal held that the total amount of compensation payable to Arun Nehra is Rs. 1,99,800/-. Since, however, it was held that 60 per cent negligence was attributable to him in causing the accident, he was held entitled to 40 per cent of the said amount i.e. Rs 79,920/-. Since the amount was being paid in lump-sum, a further cut of 25% was imposed and he was held entitled to recover Rs. 59,940/- from the owner of the car, its driver as also its insurer who are held liable to pay the same jointly and severally. The compensation payable to Mrs. Sheila Didi was determined at Rs. 3,53,500/-. Since the compensation was being paid to her in lump sum, 25% cut was applied and the amount of compensation was reduced to Rs. 2,65,125/-. In the claim petition she had claimed a sum of Rs. 2,50,000/-only. Therefore, the sum so claimed was allowed to her for the injuries suffered by her. It was held that qua her it was a case of composite negligence and she can claim the entire amount of compensation from Arun Nehra, owner of the car, its driver and its insurer jointly and severally. The claimants were also held entitled to interest at the rate of 6% per annum from the date of respective claim applications i.e. July 20, 1979 till realisation of the amount.
5. Dissatisfied from the said award, F.A.O. No. 2 of 1982 and F.A.O. No. 509 of 1981 have been filed by the owner and the insurer of the car in respect of compensation awarded to Mrs. Sheila Didi and Arun Nehra respectively, while F.A.O. No. 33 of 1982 has been filed by Arun Nehra against the inadequacy of the compensation awarded in his favour and the finding of the learned Tribunal holding that his negligence is to be attributed to the accident to the extent of 60 per cent.
6. I have heard the learned Counsel for the parties at sufficient length. In shall be apt first to consider the finding of the learned Tribunal on issue No. 1. There is only one eye-witness of the accident namely Harish Chander P.W. 8. It could not be contended by either of the parties that he was in any way an interested witness. Since his independence is not doubted and his presence at the spot at the time of the accident is also confirmed, it would be proper to consider his statement. He deposed that on 22-1-1979 he was working with Shri Kanwar in Sector 10. He was bringing a child from the school in Sector 9 on the cycle. After crossing the Chowk of Sectors 9 and 3, he was going ahead towards Sector 10. He had gone 10 or 20 yards, a scooter overtook him which was going on its correct left side. Shri Arun Nehra was driving the scooter. He identified him as being present in court. A lady was sitting on fie pillion seat of the scooter. Mr. Nihra was going at a very slow speed. After giving horn and giving signal with his hand he was to take a turn towards M.L.A. Flats. A car came from the opposite direction at a high speed. The scooter had taken a turn towards inner side for more than half of the distance when the car hit the scooter. The front of the car hit the left side of the scooter as at that time the scooter had taken the turn. Both the scooterists fell on the road towards M.L.A. Flats. The scooter was dragged by the car up to a distance of 10-15 yards. After 10-15 minutes, Police officers reached the spot. The injured were sent in a car. He was directed to stay at the spot. After one hour the police reached the spot and recorded his statement, copy of which is Exhibit P-1. The policy prepared the plan and got the spot photographed. The skid marks of the tyres of the cars were also noticed. Nothing could be elicited in his cross examination which might effect the veracity of his statement.
7. Another piece of evidence that needs to be noticed at this stage is a confessional statement made by Rajinder Kumar driver of the car, during the course of his prosecution in the criminal case. A copy of the same is Exhibit P-174. While appearing in the witness box as R.W. 1, he had admitted having made this confessional statement although he states that the same was made at the instance of Mr. Arun Nehra and his father Shri D.S. Nehra who threatened that if he did not make that statement he shall be convicted and sentenced to two years rigorous imprisonment. I think the learned Tribunal has rightly disbelieved this version of Rajinder Kumar as a belated attempt to wriggle out of his confession. A perusal of Exhibit P. 174 makes it clear that he admitted that on 22-1-1979 he was driving car No. CH-4120 in a very rash and negligent manner and hit scooter No. CHD-4664. The accident was caused because of his rash and negligent driving. Both the scooterists fell down as a result of the accident and received multiple injuries. They were identified as Arun Nehra and Smt. Sheila Didi. He admitted that he did not blow the horn of his car.
8. The learned Tribunal rightly relied on Hanuman Dass v. Usha Rani minor 1978 Current Law Journal 42, wherein D.S. Tewatia, J. held that the driver had made a confessional statement in the criminal case which was proved and placed on the record of the Tribunal. When confronted with the same, the driver admitted having made it. He had stated therein that the accident occurred as a result of his own rash and negligent driving. He sought to explain that he made the said confessional statement in order to suffer lesser punishment but the explanation so offered by him was held to be hardly convincing. In a recent judgment in Gulshan Kumar minor v. Balwinder Singh and Ors. F.A.O. No. 139 of 1979 decided on 27-9-1984, S.S. Sodhi, J. has also relied on the confessional statement made by the truck driver who pleaded guilty to the charge. It is by now well settled that while the judgment of the criminal court pertaining to an accident is not relevant for adjudication of a claim for compensation beyond the fact that the driver of the offending vehicle was tried and convicted, any statement made by him in the course of such a trial is a relevant piece of evidence and can be taken into consideration by the Tribunal. The contention of Mr. V.P. Gandhi that confessional statement of Rajinder Kumar should be ruled out of consideration is, therefore, not tenable and I reject the same.
9. The learned Tribunal in spite of having before it the unimpeachable statement of Harish Chander P.W. 8, and the confessional statement Exhibit P. 174 made by Rajinder Kumar, driver of the car, proceeded to examine the remaining evidence on the record and attributed negligence to Mr. Arun Nehra resulting in the accident to the extent of 60 per cent. To deal with this finding of the learned Tribunal, I find it convenient to reproduce the following view of the evidence taken by the Tribunal which appears to have led it to the above conclusion:
Men may lie however, the facts speak for themselves, particularly in this case when the spot was photographed by the police immediately after the accident In brief, I may make a reference to the photographs, Exhibits P. 10 to P. 12. These photographs show that the car stopped after the accident after covering the entire link road and the scooter is much behind the turning. The skid marks of the tyres of the car in photograph Ex. P. 11 shows that the car had covered almost middle of the link road when the brakes were applied which left the skid marks. Since the skid marks are sufficiently in length, it can be said that the car was at a high speed and it took some time to stop the car. Possibility of pushing the scooter a little away from the car with the impact cannot be ruled out. However, I cannot accept the contention of the counsel for the claimants that the scooter was dragged upto 30/40 feet which is the length of the skid marks. The photographs Exhibits P. 11 and P. 12 do not shows any evidence of impact on the road at that junction. Even the Helmet, which the scooterist was wearing is just close to the scooter. There is no suggestion that the scooterist Shri Arun Nehra was dragged alongwith the scooter. Rather the evidence of Arun Nehra as referred to above is that they fell on the link road and after the impact, which is contradicted by the evidence of Mrs. Sheila Didi. According to her, with the impact they fell in front of the car. This completely rules out the story of the dragging of the scooter by the car and that too upto a distance of 30/40 feet. The Helmet of Arun Nehra would not have been just close to the scooter as shown in the photograph Ex. P. 10 if Arun Nehra had fallen in the link road. The site plan prepared by the police is not of much importance in view of the photograph of the spot. The photograph Ex. PP. 3 shows the damage on the front of the car on the bonnet. The photograph Ex. P. 8 shows the damage to the scooter on the left side near the luggage boot. Thus the discussion of the evidence shows that Arun Nehra is more to be blamed for the accident than Rajinder Kumar. 1 fix their negligence as 40% and 60% of Rajinder Kumar and Arun Nehra respectively in causing the accident.
Mr. Suri, appearing for the claimants has attacked the different aspects of the above view taken by the learned Tribunal. I find that the observations of the learned Tribunal are contrary to the facts found on the record. The learned Tribunal has wrongly ruled out of consideration the site plan Exhibit P. 2 prepared by Satnam Singh Sub Inspector PW 1 at the spot. The preparation of this plan at the spot has been admitted by Rajinder Kumar RW 1 in his statement. Examination of the photographs Exhibits P. 3 to P. 12 without reference to the site plan can give a distorted view as would be clear from the discussion which follows:
10. The site plan Exhibit P. 2 shows that the road dividing Sectors 3 and 10 on which the scooter and car were coming from the opposite directions is 25 ft. wide. While the road leading towards M.L A. Hostel is 20 ft. wide. The later road, joins the former at the inter-section which is 60 ft. wide. The scooter was coming on its extreme left. It started taking a turn to the right towards the road of M.L.A. Hostel gradually and covered a distance of about 30 ft. of the length of the road and while so doing hand gone much beyond the middle of the road towards the right side and was in fact only 6' from the intersection of the M.L.A. Hostel road when the car struck it. The skid marks of the car before the place where it struck the scooter, shows that these are only a little more than the length of the car i.e. 13 ft. This amply shows that the driver of the car was extremely negligent. He did not notice the scooterist in front till the time the car bit the scooter. The skid marks extended to a length of 40 ft. This further shows that the car was being driven very rashly and it could be brought to a half after hitting the scooter at sufficient distance. Point 'B' where the car stopped and point 'C where the scooter was found further shows that the impact of the car against the scooter was so forceful that even when the car stopped the scooter was thrown some distance away from it.
11. Here we are first to find whether Arun Nehra was driving the scooter in accordance with the driving regulations. Regulation 9 contained in the Schedule X to the Act inter alia provides that the driver of a motor vehicle shall when turning to the right draw as near as may be to the centre of the road along which he is travelling and cause the vehicle to move in such a manner that as far as may be practicable it passes beyond, and so as to leave on the driver's right hand, a point formed by the intersection of the centre lines of the intersecting roads; and it arrives as near as may be at the left hand side of the road which the driver is entering. The site plan Exhibit P. 2 leaves no doubt that Mr. Arun Nehra was fully complying with these regulations when he started taking turn towards the right, he passed the centre of the road gradually and aimed at reaching the left of the road leading towards the M.L.A. Hostel but before he could do so, his scooter was hit by the car driven by Rajinder Kumar, a few feet before reaching the M.L.A. Hostel road.
12. Again, a reference to the photographs Exhibits P. 3 to P. 12 demonstrate the position which is depicted in the plan Exhibit P. 2. The photograph Exhibit P. 3 shows no damage to car except that dents on both sides of its bonnet were caused. Exhibit P. 4 shows that besides the skid marks of the car, there are a scratch marks of the kick of the scooter on the road apparent from a deep white line. The car had hit the scooter on the left side when it had crossed the centre of the road and was leading to the M.L.A. Hostel road. Kick of the scooter is on the right side. Photograph Ext. P. 9 shows that the scratch marks of the kick are continuous all along except for a short space in front of the car. It appears that when the car came to halt, the momentum of push given to the scooter continued and it was thus thrown at a distance from the car.
13. Learned Tribunal, in my view, has erred in making some of the observations quoted above. It has been wrongly held that the skid marks of the tyres of the car in photograph Ex. P. 11 shows that the car had covered almost middle of the link road when the brakes were applied. The site plan Ext. P. 2 shows that the photographs Exhibits P. 11 and 12 show that the skid marks of the tyres of the car start from the beginning of the link road, almost at the point where its front hit the scooter and continued upto a length of 40 ft. Again, the learned Tribunal is wrong in its observation that the scooter was not dragged upto 30/40 feet after the car hit it. Photographs Ext. P. 11 and P. 12 could not show the place where the car hit the scooter. The car was at a great speed. It did not stop at the place where it hit the scooter. It rather dragged the scooter along. That is why the skid marks are continuous. The observation of the learned Tribunal that the Helmet which the scooterist was wearing is just close to the scooter ought not to have led it to a wrong conclusion. Photographs Exhibits P. 6, P. 7, P. 9 show that either the police party or some one else placed all the belongings of the scooterists close to the scooter after the accident. Had it not been so, besides the Helmet, the brief case containing the files which is visibly losse on its topcover besides the spectacles belonging to Mrs. Sheila Didi would not have been placed on the scooter. Again, the learned Tribunal is wrong in observing that the statement of Arun Nehra that he and Mrs. Sheila Didi fell on the link after the impact, has been contradicted by the statement of Mrs. Sheila Didi. Mrs. Didi has now here said in the course of her statement that with the impact they fell in front of the car. All that she has said is that as a result of the impact they fell off the road. She had admittedly fallen unconscious. The statements of Arun Nehra and Harish Chander PW 8 are quite consistent which show that as a result of the impact of the car with the scooter, the scooterists were thrown on the inner road leading to M.L.A. Hostel. That is why inspite of multiple injuries and fractures suffered by both of them, none of them was run over by the car.
14. In view of the above discussion, I am of the firm view, that the so called attending circumstances taken into account by the learned Tribunal to rule out the confessional statement of Rajinder Kumar and the statement of the Harish Chander PW 8 eye-witness to the accident, are virtually nonexistent. The statement of Arun Nehra and Mrs. Sheila Didi as to the distance at which the car was from them when Arun Nehra gave the indication and started taking turn towards the right to enter the road leading to M.L.A. Flats again do not show that Arun Nehra deliberately invited the accident. Since the car was coming from a distance and Arun Nehra on a scooter had crossed the centre of the road, and was going to enter the link road of M.L.A. Flats it was reasonable for him to believe that the car driver would have noticed him taking turn towards M.L.A. Flats and would be reasonably cautious in driving the car along the main road. The point mark 'A' on the site plan Exhibit P. 2 shows that driver of the car was probably not looking towards his front side. He hit the scooter hardly 6 ft. from his left side of the road. The scooter was about to enter the link road. Had he noticed it, he would have diverted the car a little to the right but his direction was all along straight and he hit the scooter on its left. How the dents came to be caused on the bonnet of the car as exhibited in the photograph Ext. P. 3 is only a matter of speculation. Possibility cannot be ruled out that with the forceful impact of the car on the scooter, when the scooterists were thrown away on the entrance of the link road, either any one of them or the scooter hit the steel gauge covering of the radiator and the bonnet of the car. It is thus clear that the accident was caused solely because of wreckless, rash and negligent driving of the car by its driver and by no stretch of imagination can any negligence for causing the accident, be attributed to Arun Nehra. I, therefore, reverse this finding of the learned Tribunal.
15. I shall now advert to the amount of compensation that has been determined as payable by the learned Tribunal in respect of injuries, pain, medical treatment, loss of income etc. to Arun Nehra, it is not necessary to enter into detailed appreciation of evidence with regard to the nature of injuries suffered by him in the accident as these have been elaborately dealt in the award. All that need be mentioned is that he suffered from deformity of the left leg and X-ray revealed the fracture of both bones in left leg. He was admitted in the General Hospital, at Chandigarh on January, 22, 1979 and was discharged from there on 8-2-1979. Subsequently, he remained under the treatment of Dr. B.D. Aggarwal, Professor and Head of Department of Orthopedics, Rajindera Hospital, Patiala, Dr. S.K. Garg, PW 4 Dr. H.C. Gupta PW 5 and Dr. N.D. Aggarwal PW 14 had described the condition, the pain and suffering which Arun Nehra had to undergo and the treatment which was given to him. Dr. N.D. Aggarwal examined Mr. Nehra on October 9, 1980 in Court and made the following observations:
Arun Nehra wears a shoe raise of 1.5 cms. on the left side. When he walks with bare feet he walks with a limp. There is a prominence over the middle of the leg and shortening of 2 cms. Movements of the knee are full but movements of the ankle are limited. Dorsification is limited to half. Plaster flexation is markedly limited and he finds it difficult to stand on tip toes. Fracture is well united but with over-lap.
On the basis of evidence, the learned Tribunal has concluded that the permanent disability suffered by Arun Nehra in the accident is 20 per cent as a whole. The learned Tribunal has awarded Rs. 5,000/- in his case as the amount having been spent on medicines and hospitalisation Mr. V.P. Gandhi appearing for the owner and insurer of the Car contended that the vouchers regarding purchase of medicines Exhibits P. 23, 20 to P-P-37, P-110 to P-133 which have been brought on the record prove only the total expenditure of Rs. 1239/- on medicines. Learned Tribunal has rightly observed that Mr. Nehra or his relations were not expected to keep all the receipts and vouchers intact to be produced in the case. Taking into consideration the period of hospitalisation, nature of injuries, operation and other treatment clearly bring out that the amount of Rs. 5,000/- awarded on this amount is not at all excessive.
16. The second item of claim made is the sum of Rs. 600/-. It is stated that Mr. Nehra had to visit Patiala where he was undergoing treatment under the guidance of Dr. N.D. Aggarwal. He paid three visits to Patiala and has claimed Rs. 200/- per trip on account of the car journey and other related expenses including the amount spent on the persons attending on him in the car from Chandigarh to Patiala and back. The visits are proved by the outdoor slips dated 9-5-1979, 6-7-1979 and 31-7-1979 Exhibits P. 21 to P. 23. This amount has been allowed by the learned Tribunal and in my view rightly so. Another claim of Rs. 400/- made for transportation charges for the family members who visited the hospital in January and February, 1979 at the rate of Rs. 25/- per day was declined by the learned Tribunal. I find no reason to differ with the view taken by it that expenditure of this nature is included in the first item of claim of Rs. 5,000/- which has already been allowed.
17. The third item of claim is on account of special diet. It has been brought on record that because of injuries suffered Arun Nehra wag hospitalised and as stated by Dr. H.C. Gupta and Mr. Nehra himself he was put on a special diet. He has stated that a sum of Rs 30/- per day was being spent on special diet. The learned Tribunal has, however, held that it is reasonable to conclude that the extent of special diet must have been Rs. 20/- per day. Special diet was given for 8 months. The amount of compensation on this account has been calculated at Rs. 4,800/- and has been allowed by the learned Tribunal. I find no infirmity in the finding so recorded.
18. The next item of claim made by Arun Nehra was that he had to engage a personal servant to serve him for about 6-1/2 months. PW 2 Rabi Lochan Rai is the said servant. The learned Tribunal has rightly concluded that in view of the nature of the injuries suffered by Arun Nehra he had needed an attendant for the period he remained a patient. It has, therefore, determined the expenditure by him in this behalf at the rate of Rs 200/-per month and has calculated the expenditure so incurred for 6-1/2 months at Rs. 1300/-. It has rightly observed that the servant must be attending to some other duties also. Therefore, 3/4th of his pay for the said period should be allowed at best. As such the compensation bas been assessed at Rs. 900/-. 1 find this reasonable.
19. The next item of claim made by Mr. Arun Nehra was that he could not attend to his professional work for about 10 months because of his continuous confinement to bed and subsequent period of convalscence. He thus suffered loss of professional income as an Advocate for which he is to be compensated. Narinder Singh PW 10 a clerk of the income tax office has produced assessment orders for the years 1975-76 to 1978-79, Exhibits P. 108, P. 109, P. 106 and P. 107 respectively. It would be relevant to take into consideration the last assessment order Exhibit P. 107 which shows that the income of Arun Nehra excluding interest income was Rs. 20,230/- but it is to be noted that this income is for the period of 9 months and 22 days i.e. from 1-4-1978 to 22-1-1979, the date on which Mr. Nehra was the victim of the accident A sum of Rs. 1,220/-has been paid towards income-tax. Thus the net amount of income is Rs. 19,010/-which showed that his average monthly income at the time of the accident was Rs. 2000/-. It is not in dispute that Mr. Nehra could not do his professional work for about 10 months. Therefore, the loss which accrued to him in this account at the rate of Rs. 2000/- per month comes to Rs. 20,000/-. The amount has been so awarded by the learned Tribunal and I affirm the same.
20. The next item of claim made by Mr. Nehra is that because of permanent disability caused on account of shortening of his left leg, his movability, efficiency and capacity to do his professional work has been sufficiently curtailed. Keeping in view 20 per cent permanent disability the pecuniary loss to him can be safely worked out at Rs. 400/- per month. Mr. Nehra was aged 30 years at the time of the accident and keeping in view the average span of life he would have continued earning for another period of 30 years. The learned Tribunal after referring the case law has rightly concluded that a multiplier of 20 work should be allowed on the annual loss of income suffered by him, but has wrongly calculated this amount at Rs. 80,000/-. In fact, the correct calculation would being this amount to be Rs. 96,000 : (400 x 12 x 20).
21. Another claim made by Mr. Nehra was that of general damages on account of pain, suffering, loss of pleasure of life on account of injuries and adverse effect on his ultimate life due to shortening of his leg. The learned Tribunal has relied on Union of India v. P. S. Mahal 1976 ACJ 146, TaraChand and Ors. v. Dr. Brij Mohan Gupta and Anr. 1980 ACJ 402, and has awarded a sura of Rs. 40,000/- as the consolidated amount of general damages. I find that the amount of damages so granted is quite reasonable. I, therefore, affirm this finding.
22. Another item of claim for damages is in respect of gratituous service rendered by the family members of Mr. Nehra to him during the period the remained confined to bed either in the hospital or at home. During period of treatment and convalscence his leg remained in plaster and he was immobilised for a long period. Relying on the decisions in Kasturbai Rattan Chand Gandhi v. S S. Badola 1974 ACJ 214 and Bharat Premjibhai v. Municipal Corporation Ahmedabad and Ors. AIR 1978 Gujarat 196 the learned Tribunal considered it legitimate to award Rs. 5000/- as the amount of compensation on this account. Again I find no infirmity with regard to this item of compensation and affirm the same.
23. The next two items which have been taken into account by the learned Tribunal as claim for compensation made by Mr. Nehra are loss of salary as part-time Lecturer in the Dept. of Laws, Punjab University. It has been brought in evidence through Gurmej Singh PW 11 that Mr. Nehra was appointed as part time Lecturer at Rs. 600/- per month from 4-8-1978. But after 22-1-1979 he could not attend to his duties. Thus he lost the salary on this account. The learned Tribunal has concluded that since Nehra remained out of the job for 10 months, the loss of salary on this account should be assessed at Rs. 6,000/-. Again his claim was that although his job was temporary, he would have continued with the same had he not suffered permanent incapacity mentioned above. The learned Tribunal has concluded that by passage of time the income of Mr. Nehra from the profession would have considerably increased. Therefore, he would not have worked as a part time lecturer for a period longer than five years. A sum of Rs. 36,000/-as loss on this account has been assessed by the learned Tribunal. In my view, the claim awarded under this head is not justified. It could not be disputed before me by Mr Suri that the assessment order Ex. P. 107 includes besides professional income, the salary as part time lecturer received by Mr. Arun Nehra. Thus this entire claim whether for the period of 10 months when he remained out of work or for the subsequent period of 5 years stands accounted for under the head of loss of income which has already been assessed by me at Rs. 96,000/-. Therefore, these two items awarded by the learned Tribunal, in my view are not justified and this part of the award is set aside.
24. Mr Arun Nehra claimed Rs. 1500/-as damages to the scooter. Haqiqat Rai PW 2 appeared in the witness-box. He had prepared estimate of repairs to the scooter which is Exhibit P. 13 and for spare parts, Ext. P. 14. The total amount thus estimated to have been spent on repair to the scooter is Rs. 1690/- The learned Tribunal has rightly held that the claim of Rs. 1500/- is reasonable and has been correctly awarded.
25. Another sum of Rs. 60,000/- was claimed by Mr. Nehra towards future expenses of the car at the rate of Rs. 250/- per month. It has, however, been disallowed by the learned Tribunal. It has been contended on his behalf before me that because of shortening of the leg he could no longer drive scooter, he has to maintain a car and that extra expenditure on this account at Rs. 250/- per month is reasonable and Rs. 60,000/- as expenditure for a period of 20 years should be allowed. I am one with the view taken by the learned Tribunal that it is not established that Mr. Arun Nehra is immobilised to the extent that he cannot commute otherwise than on car. This claim in my view has been rightly rejected.
26. As a result of the above discussion I find that as against Rs. 1,99,800/-awarded by the learned Tribunal, the compensation payable to Mr. Arun Nehra is Rs. 1,73,800/-. I have already set aside the finding of the learned Tribunal that Arun Nehra was negligent to the extent of 60 per cent in causing the accident. Therefore, the finding of the Tribunal that he is entitled only to 40 per cent of the amount of compensation determined is not correct and is therefore, reversed. The learned Tribunal has further imposed a cut of 25% on the lump-sum amount of compensation payable, in view of decision of Calcutta High Court in Oriental Fire and Gettl. Insurance Co. Ltd. v. Khudimm Dutt and Anr. 1980 ACJ 136. Imposition of this cut again, in my view, is not sustainable. It has been observed by a Full Bench of this Court in Lachhman Singh and Ors. v. Gurmit Kaur and Ors. 1979 PLR 1 that in cases cited therein the method of making some percentage deduction from the lump-sum amount of compensation arrived at was adopted. It was held that such a deduction was too arbitrary and vague to serve the purpose of award of just compensation. The principle of working out a suitable multiplier with which annual dependency be multiplied and capital amount arrived at was considered to be the only just and reasonable method for arriving at the amount of compensation payable. It is thus clear that the view taken by the Calcutta High Court in the Judgment relied upon by the learned Tribunal was not approved in Lachhman Singh's case (Supra) I am, therefore, of the considered view that no such cut can be imposed on the lump-sum amount. As a result I hold that Mr. Arun Nehra is entitled to compensation amounting to Rs. 1,73,800/-.
27. Now coming to the amount of compensation payable to Mrs. Sheila Didi under issue No, 2, the learned Tribunal has held that by taking into consideration various sub-heads of claim that she is entitled to compensation amounting to Rs. 3,53,500/-. It, however, applied a cut of 25% and reduced the amount so payable to Rs, 2,65,125/-. I have already held above that the application of 25% cut is not sustainable in view of the observations of the Full Bench of this Court in Lachhman Singh's case (supra) Mrs. Didi in her claim application claimed a sum of Rs. 2,50,000/- only. Thus it has been held by the learned Tribunal that she is to be allowed compensation limited to the amount claimed by her. Thus as against compensation of Rs. 3,53,500/- to which she has been held entitled she has been awarded Rs. 2,50,000/- as compensation for the injuries suffered by her. During the pendency of F.A.O. No. 509 of 1981, Mrs. Sheila Didi filed CM. No. 5830-Cllof 1985 under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, for adducing additional evidence. Along with the application, she has produced Air Ticket, certificates and vouchers which make it evident that subsequent to the award of the learned Tribunal dated 28-5-1981, she has incurred another sum of Rs. 97,190/- on her treatment in Soviet Union and at Nirobi. This expenditure includes air fair to Soviet Union and Nirobi and back to India. Unfortunately, however, except seeking production of these documents as additional evidence no amendment has been sought for in the claim application made before the learned Tribunal nor any claim for additional expenses over and above what has been awarded by the learned Tribunal, has been made. It appears that the only purposes for which this additional evidence was sought to be adduced was to support the award of Rs. 2,50,000/- as compensation made in her favour by the learned Tribunal.
28. In all fairness to Mr. V.P. Gandhi, it should be recorded that he made attempts to attack compensation awarded to Mrs. Sheila Didi under different heads of claim but even on accounting for the challenge so made, he was not successful in his efforts to establish that she is entitled to an amount less than Rs. 2,50,000/- as compensation. I, therefore, do not consider it necessary to elaborately deal with his contentions.
29. As a result of the above discussion, FAO No. 509 of 1981 and 2 of 1982 are dismissed. FAO No. 33 of 1982 is partly allowed. The award made by the learned Tribunal is modified and it is held that Mr. Arun Nehra is entitled to compensation amounting to Rs. 1,73,800/-while Mrs. Sheila Didi is entitled to Rs. 2,50,000/- as compensation. Shri Swatantra Kumar Lamba, owner of the car, Rajinder Kumar its driver and the Oriental Fire and General Insurance Co. Ltd., its insurer, are held jointly and severally liable for payment of the amount of compensation to both the claimants who shall also be entitled to recover from them interest at the rate of 12 per cent per annum on the amount of compensation from the date of their respective claim applications till the date of final payment. Mr. Nehra and Mrs. Didi shall also be entitled to recover costs in these appeals from the abovesaid owner, driver and insurer of the car, which are assessed at Rs. 500/- each CM. No. CII of 1985 in F.A. No. 509 of 1981 also stands disposed of.