Punjab-Haryana High Court
M.L. Sharma vs State Of Haryana And Anr. on 30 May, 1991
Equivalent citations: I(1992)ACC20, 1992ACJ443
JUDGMENT R.S. Mongia, J.
1. This judgment will dispose of F.A.O. Nos. 377, 378 and 379 of 1989, as these arise out of the same award dated 31st October, 1988, of the Motor Accidents Claims Tribunal, Chandigarh, (hereinafter referred to as 'the Tribunal'), by which the claim applications of the appellants having arisen out of the same accident had been decided.
2. Brief facts giving rise to the present appeals are that on the night of 12th November, 1985 (which happened to be a Diwali night), at about 10.00 p.m. Dr. M.L. Sharma (appellant in F.A.O. No. 377 of 1989), along with his wife Sudha Sharma (appellant in F.A.O. No. 379 of 1989) and their two minor daughters, Piya (deceased) and Puja (appellant in F.A.O. No. 378 of 1989) were travelling in their car No. CH 8877. They were residing in Sector 24, Chandigarh and were coming from Sector 34. The car was proceeding on the left side of the road dividing Sectors 22 and 23, and was going straight in the direction of Sector 17 and was to turn to Sector 23 side. When it reached the vicinity of T-junction having traffic lights from where a road branches off to Sector 23-A, Haryana Roadways bus No. HRX 923, which was coming from the opposite side from Sector 17 side and going towards Sector 35 side while the car was very near the T-junction, the bus, which, according to the passengers of the car, was being driven rashly and negligently, just swerved to its right and struck against the car. Due to the impact the car was pushed to the term of the road and after causing the accident, the bus came to a halt by striking against a tree. All the occupants of the car received severe injuries. Unfortunately, the injuries on Piya Sharma proved fatal at the spot. The other three injured, who are the present appellants, were shifted to the hospital.
3. All the three appellants filed separate claim applications before the Tribunal on 12th May, 1986. Dr. M.L. Sharma claimed Rs. 5,00,000/- as compensation, Sudha Sharma claimed Rs. 2,50,000/-(Rs. 2,00,000/- for injuries sustained and Rs. 50,000/- for damage to the car), whereas Puja Sharma claimed Rs. 2,00,000/- as compensation on account of injuries. The offending bus, as stated above, belonged to the Haryana Roadways, Chandigarh Depot. Besides impleading the General Manager of the said Depot as a respondent, State of Haryana, the owner of the said bus, was also arraigned as a respondent. Both the respondents had filed a joint written statement. They admitted the accident but put the entire blame and responsibility for causing the accident on the car driver. According to them, at the time of accident, the car was not driven by Dr. M.L. Sharma but by his wife Sudha Sharma. It was further pleaded that the headlights of the car were not on and because of rash and negligent driving of the car, the same rammed into the bus. According to the respondents, except for the grant of statutory amount of Rs. 15,000/- being the no fault compensation, the claimants were not entitled to any other compensation.
4. From the pleadings of the parties, the following issues were framed by the Tribunal:
(1) Whether on 12.11.1985, at about 10.00 p.m., the driver of bus No. HRX 923, belonging to the respondents, caused the accident in question by driving it rashly and negligently near the traffic light crossing on the road intervening Sectors 22 and 23, Chandigarh resulting in injuries to Piya Sharma, deceased, leading to her death at the spot?
(2) If issue No. 1 is proved, to what amount of compensation, if any, are the claimants-petitioners entitled and from whom of the respondents?
(3) Relief.
5. On issue No. 1, both the claimants, namely, Dr. M.L. Sharma and Sudha Sharma appeared as their own witnesses and examined one Mathura Dass, PW 7, who deposed regarding the manner in which the accident took place. The F.I.R. which was lodged by one Indresh Kumar was also tendered as Exh P-1. In rebuttal, the respondents had examined the driver of the offending bus. The claimants as well as Mathura Dass had deposed that at the time of accident, the car in which the claimants and the deceased were travelling was being driven by Dr. M.L. Sharma. The car was being driven along the left side of the road at the time of the accident and it was approaching the T-junction of roads where there are traffic lights. The car was to take turn towards its left side for going to Sector 23. Before the car could take turning towards the left, the bus approaching from the opposite direction which was being driven rashly and negligently hit against the car near the driver's window. Due to the collision, the doors of the left side of the car flung open, as a result thereof both the claimants, Sudha Sharma and her daughters who were occupying the front and rear left side seats, were thrown out. The same version was contained in the F.I.R. which was recorded just after the accident at about 10.15 p.m. The version of the respondents has already been noticed above. The driver of the bus also stated before the Tribunal that on the following morning of the accident, he gave the version to his employer in writing but no such version of the driver was produced by the respondents before the Tribunal.
6. After discussing the evidence on this issue, the Tribunal observed as under:
The version of the bus driver is ex facie preposterous. It is difficult to concede how the side of a car can be struck against the front bumper of the bus although the converse is easily conceivable. The allegation of the bus driver that the car was being driven at a fast speed has also to be taken with a pinch of salt. It is not disputed that the car was to take a left hand turning a few yards ahead of the place of the accident. In such a situation presumably the car will have to be slowed down in view of the approaching turning. At the crossing there is a small divider which splits the roads into two lanes. The bus had come from a lane which was different from the lane, which was being followed by the car. The bus driver took his vehicle to the wrong lane when its front bumper struck against the right flank of the car. Thus the position becomes apparent when we look to site plan, Exh. P-2. The photographs of the scene of the accident, Exhs. P-3 to P-8, are self-eloquent of the rashness of the bus driver. The bus even after the accident could not be controlled by its driver and it came to a halt only after it had struck against a tree standing on its right side of the road as revealed by photograph Exh. P-6. In case the bus had been going on its correct side of the road, how could it go off the road to its right side. Presumably the car which is too small as compared to the volume of the bus, could not give a push to the bus. Even otherwise if the car had given any push to the bus, the bus would have remained on its left side of the road or at best gone off the road leftwards. The presence of the bus at a point outside the road and to its right side speaks volumes of the carelessness and rashness on the part of the bus driver. The claimants' version is consistent right from the beginning to the stage of the trial. The earliest version is enshrined in F.I.R., Exh. P-1. Subsequently, the same version was incorporated in the claim application and last of all, this version was reiterated at the trial by two of the claimants and one independent witness.
In the light of the above discussion I find no hesitation to conclude that the automobile accident took place on account of the careless and rash driving of the bus driver. Issue No. 1 is, therefore, decided in favour of the claimants.
7. No appeal has been field by the Haryana Roadways and consequently, there is no challenge to the findings of the Tribunal regarding the accident having been caused by the rash and negligent driving of the bus driver, as indicated above.
8. Quantum of compensation to Dr. M.L. Sharma (appellant in F.A.O. No. 377 of 1989):
The appellant at the relevant time was a little more than 40 years of age and was working as a lecturer in the department of Botany in the Punjab University, Chandigarh. Dr. C.P. Sahney, Professor and Head of the Department of Plastic Surgery, P.G.I., Chandigarh, who had examined appellant Dr. M.L. Sharma, appeared as PW 1 before the Tribunal and deposed that he found the following injuries on the person of Dr. M.L. Sharma:
Face:
(1) 4 cm. long lacerated wound cutting through and through the lower lip on the left side. It extended from left angle of the mouth to the chin. Inner mucosal laceration in the lip was 1.5 cm. long. (2) Two lacerated wounds over the vermilion of lower lip on left side. Size 1 cm. x .5 cm. x .5 cm. and .5 cm. x .5 cm. x .5 cm. (3) Wound 5 cm. long deep upto bone extending from root of the nose to upper margin of left eyebrow. (4) Abrasion forehead 3 cm. x 2 cm. near the hair line.
(5) Wounds on the left side of the face extending transversely from the side of the nose:
(i) 3.5 cm. superficial,
(ii) 2.5 cm.
(iii) 2.5 cm.
In the intervening area had abrasion.
(6) Wound over the bridge of the nose.
(7) Wound over tip of the nose inverted U shape size 2.5 cm.
(8) There was a fracture of a nasal bone.
II. There was a lacerated wound 2.5 cm. at the level of inferior margin of patella.
III. There was fracture shaft of the femur bone.
Hand:
Right hand had following injuries:
(1) Right index finger:
(a) lacerated wound .5 cm. x .5 cm. x .2 cm. on dorsum of D.L.P. joint.
(b) lacerated wound .5 cm. x .5 cm. x .2 cm. on ulnar side of P.P. joint. (2) Right little finger knuckle: Lacerated wound size .2 cm. x .2 cm. x .2 cm. (3) Right ring finger knuckle: Lacerated wound size .3 cm. x .2 cm. x .2 cm. (4) Wound in web space between right ring and right middle finger on dorsum aspect 4 cm. x 1 cm. x .5 cm. (5) Lacerated wound on dorsum of middle phalynx of right ring finger .2 cm. x .2 cm. x .2 cm.
He further stated that on 13th November, 1985, the fracture of the nasal bone was reduced and the wounds in various parts of the body were sutured. The fracture of the femur was treated by the Orthopaedic Surgeon. The injuries on the face had left permanent scars and so also on the hands. The appellant was discharged from the hospital on 25th March, 1986.
Dr. O.N. Nagi, Associate Professor of Orthopaedics in the P.G.I., appeared as PW 5. He stated that on 12th November, 1985, the appellant had been brought for treatment at about 11 p.m. and he treated him for the following injuries:
Left knee:
(1) 2.5 cm. lacerated injury, horizontal at inferior margin of patella. The de-bridement of the wound and stitching of the skin was done under general anaesthesia. (2) Comminuted fracture shaft right femur at the junction of upper third and lower two-third. Skelton traction was given and the patient was treated on continuous traction for 12 weeks.
During the course of treatment he was given active physiotherapy.
This witness further stated that the appellant was having one cm. shortening of the right leg and also one inch of the quardiceps muscle as measured 6 inches above the knee joint. According to the witness, the injured would not be able to run or climb to the optional level of a normal human being. According to him, the appellant was having 15 per cent permanent disability as concerned to the right lower limb. The appellant was walking with the help of crutches at the time of discharge on 25th March, 1986 and gradually he came to one stick and now he is walking without any stick.
The appellant himself appeared as PW 8 and deposed that he remained admitted in the P.G.I. for about 4l/2 months and when he was discharged from the hospital, his right leg was still in calliper, his treatment lingered on for a sufficiently long time and even after discharge from the hospital for nearly three months he continued to visit P.G.I. twice a day for getting treatment from a physiotherapist. The treatment of the physiotherapist was gradually reduced and his visits from twice a day were reduced to once a day and thereafter once in two days.
The appellant further deposed that his service career involved frequent visits to hills in search of various plants and after his involvement in the accident he was forced to give up this exercise completely. He was suffering from pain which was still lingering. His right hand had not completely recovered from aftermath of the injury, although he could use this hand for writing purposes but after a short while the hand would get tired if the writing had to be continued. Before the accident he was able to take part in the games but it was not so after the accident. He had to exhaust his earned leave which he could have got ultimately encashed. He further stated that the University Grants Commission sanctioned a Research Project and in that project he was to compile a book which after its publication would have yielded a considerable amount as royalty, but he could not take this adventure because of the accident. His treatment was free, but he had to pay overhead expenses on meals etc. It was not possible for him to put pressure on his leg, with the result that he was unable to drive a car. He had purchased new car in June, 1986 and for driving the same, he had to engage a chauffeur at the salary of Rs. 800/- per month. Before the accident, he used to drive the car and provided lift to and fro to both his daughters as well as to his wife for leaving them to their school and office. Now these things were being performed by the driver.
The Tribunal had granted Rs. 62.000/- to Dr. M.L. Sharma as special and general damages, under the following heads:
(i) Reimbursement of expenses incurred on meals and paid vide receipt Exh. P-10. -Rs. 4,104/-
(ii) For special diet. -Rs. 10,000/-
(iii)For transport charges. -Rs. 5,000/-
(iv) Reimbursement of
the expenses incurred
on the stay of
relatives in the P.G.I. -Rs. 3,000/-
(v) General damages for
mental agony, pain
and suffering. -Rs. 40,000/-
9. Quantum of compensation to Sudha Sharma (appellant in F.A.O. No. 379 of 1989):
At the time of accident, she was about 39 years of age. Dr. C.P. Sahney, PW 1, had also examined Sudha Sharma and had observed the following injuries on her person: (1) Lacerated wound right upper eyelid 2 cm. x .3 cm.
(2) Lacerated wound on the forehead just to the left of the midline size .2 cm. x .2 cm. x .2 cm. (3) Lacerated wound on the right cheek size 1 cm. x .5 cm. x .2 cm.
(4) Avulsed skin of scalp of size 7 cm. in diameter and base 5 cm. skin flap was partly necrotic.
He further stated that the wounds were sutured and skin-grafting was done on the scalp. She was discharged from the hospital on 18th December, 1985. The wounds had left permanent scars and there is a permanent loss of hair in the scalp. The loss of hair in the scalp required change in the hair style to cover it up. The loss of hair was due to the loss of skin.
The claimant-appellant herself deposed as PW 6 that she was M.Sc. (Botany) and got selected in Indian Revenue Service in 1970 and at the time of giving evidence on 1st June, 1988, she was posted as Deputy Commissioner Income Tax in Chief Commissioner's Office at Patiala. She further stated that her face injuries were given plastic surgery treatment. Her upper ribs were compressed. The seat of injury on her head was given skin-grafting after taking skin from her thigh. She had also developed problems of cervical spondylitis and was getting physiotherapy treatment and occasionally had the feeling of giddiness and pain. On account of her head injury, she had suffered disfigurement of her face. She had spent about Rs. 5,000- on her treatment from her own pocket and is still spending Rs. 40/- to Rs. 50/- per week for going to P.G.I. For concealing the scar on her head, she was required to get the help of a hair dresser which cost her Rs. 100/- per month, which she would be spending throughout her life. She further stated that her car was badly damaged in the accident. At the time of the accident her car was worth Rs. 55,000/- but the claim which the insurance company gave was only Rs. 41,000/-. The car was fitted with stereo, and till the purchase of the new car in June, 1986, she had to incur about Rs. 2,000/- per month on transport.
The Tribunal gave her special and general damages to the tune of Rs. 35,000/- in all as follows:
(1) Diet expenses, transport etc. -Rs. 10,000/-
(2) On account of
disfigurement. -Rs. 5.000/-
(3) For mental agony,
pain and suffering
(special damages). -Rs. 20.000/-
10. Quantum of compensation to Puja Sharma (appellant in FA.O. No. 378 of 1989):
Appellant, Puja Sharma, at the time of accident was 12 1/2 years old. She was a student of 7th class. She did not step into the witness-box. It was her mother Sudha Sharma, PW 6, who described her injuries and the aftermath. PW 1, Dr. C.P. Sahney, observed the following injuries on the person of Puja Sharma: (1) Lacerated wound forehead to the right of midline extending from hair line to the eyebrow size 6 cm. x 1 cm. (2) Fracture right clavicle at the junction of outer and the middle third. She had following abrasions:
(i) Right forehead l 1/2" x 1V2"
(ii) Right mandible region 3" x 1/2".
(iii) Left ala of nose with 5 mm. full thickness cut.
(iv) Left maxillary prominence 2" x 1".
(v) Scattered abrasions on face and hand.
There was a haemotoma in an area 5 cm. x 7 cm. in the right temporal region.
There was Y shape laceration outer angle of left eyebrow each limb 1 cm. long.
She was discharged from the hospital on 2nd December, 1985. This witness deposed that there was a permanent scar on the forehead at the left eyebrow. It has been further stated by the witness that the scar may become wider with the growth of the child. The patient had been complaining of headache after her discharge from the hospital for some time.
Sudha Sharma, the mother of the claimant, stated that the face injuries, despite plastic surgery, had left behind scars. Even after discharge from the hospital she could not carry on her normal way of life. Trauma of the accident had made the claimant Puja Sharma psychic and she had become a difficult child to handle. She felt insecure and all the time asked for the indulgence of her mother. Her studies had also received a serious setback and according to Sudha Sharma her (Puja Sharma's) studies had deteriorated by 10 per cent in her class. The injured, according to the mother, was having ambition of becoming a doctor.
She had been awarded by the Tribunal only Rs. 25,000/- under the following heads:
(1) For mental agony, pain and suffering. -Rs. 5,000/-
(2) For disfigurement
of the face. -Rs. 15.000/-
(3) For special diet and
incidental expenses
like transport
charges etc. -Rs. 5,000/-
11. Mr. Suri, learned Senior Advocate appearing on behalf of the appellants, submitted that the compensation awarded to the appellants, as indicated above, was ridiculously low and so far as Dr. M.L. Sharma was concerned, no compensation had been granted for disability, loss of future income, loss of leave encashment for about six months, and loss of royalty. According to him, because of disability, a chauffeur had to be kept. The leg had been shortened permanently. Nothing has been given for the expenses on the future treatment. Similarly, for appellant Sudha Sharma, nothing has been given for the change of personality due to disfigurement, disability, expenses for running the house in the absence of the claimant, pain and suffering, transport and the loss in the value of the car. According to him, because of the disfigurement of the appellant and the permanent scar on her head, there was complete change of personality. The value of car was about Rs. 55,000/-but only Rs. 41.000/- had been given by the insurance company.
So far as the claimant Puja Sharma is concerned, according to the learned Counsel, the Tribunal while awarding compensation had not given anything for the fracture she suffered, the trauma of the accident, the shock which not only affected the personality of the child but had totally ruined it, loss in her marriage prospects, hampering of studies, affecting future career and future treatment expenses. Learned counsel for the claimant, as observed above, submitted that the compensation which had been awarded by the Tribunal under the various heads, as mentioned in earlier part of the judgment, was too meagre.
12. It may be observed that it is an accepted principle that while awarding compensation in an injury case, one should keep in mind that the amount awarded to the claimant is just. Pecuniaty as well as non-pecuniary loss suffered has to be taken in mind while calculating the compensation to be awarded. The amount awarded should be reasonable and fair. The claimant is entitled to the full compensation of the probable estimated pecuniary loss. It is no concern of the court as to how the money awarded would be used by the claimant or whether the claimant can personally use the money awarded. The question the court should pose to itself is whether after the receipt of the injuries and the aftermath of the accident, would the person be able to lead the normal life as he would have had but for the injuries? Has the personality of the claimant been affected or received a setback? Have the chances of rising in the service career or otherwise been retarded, affected or marred? What is the pain and suffering that the claimant had already suffered and would be suffering for the rest of his life?
13. No doubt, no comparison can be admitted in two cases of injuries, yet the decided precedents can give some guidance, though primarily the damages would depend on the facts and circumstances of each case and the persons who were involved in the accident, their status in life and host of such similar considerations. It has often been said that perfect justice is not possible in such cases nor it would be wise to search for the nearest approximation.
14. In Punjab State v. Kashmira Singh 1987 ACJ 401 (P&H), this Court, for brain injury resulting in abnormality in mental and intellectual functions, fractures of base skull, nose, left leg and right humerus, deformity in both the hands and right leg to a law graduate who was 24 years of age, awarded Rs. 1,00,000/- as cost of an attendant, Rs. 55,000- for past and future medical expenses, Rs. 1,00,000/- for pain, suffering and disabilities, Rs. 1,44,000/- as loss of earnings. Thus, the claimant Kashmira Singh was awarded compensation which was rounded off to Rs. 4,00,000/-.
15. In Swatantra Kumar Lamba v. Sheila Didi 1988 ACJ 74 (P&H), the injured Advocate of thirty years of age was awarded Rs. 5,600/- for medical expenses and transportation, Rs. 4,800/- on account of special diet, Rs. 20,000/- for loss of income, Rs. 96,000/- for loss of earning capacity, Rs. 40,000/- for pain, suffering and loss of pleasures of life and Rs. 5,900/- for attendant and gratuitous services and Rs. 1,500/- for damage to scooter. Thus, a total amount of Rs. 1,73,800/- was awarded in the said case. The amount, for the lady who had sustained serious multiple injuries leading to permanent disability was assessed at Rs. 3,53,000/- but awarded Rs. 2,50,000/- as per her claim.
16. In Tejinder Singh Gujral v. Inderjit Singh 1988 ACT 407 (P&H), compensation for pain and suffering etc. awarded to the injured was Rs. 1,00,000/- and also allowed was an amount of Rs. 57,600/- for services of attendants and Rs. 1,33,000/- for loss in his income, hospitalisation and damage to the scooter. Total award given was for Rs. 2,90,000/-.
17. The learned Counsel for the respondents submitted that there was no loss in future income, in as much as both the claimants had not suffered in income and they were getting the same salary as they were getting prior to the accident. He further submitted that the Tribunal while awarding compensation under the head pain and suffering, had included physical disability. Loss of leave encashment, according to the learned Counsel, was too remote and there was no evidence that had the book been published by Dr. Sharma, the appellant, the same would have been sold and he would have got royalty.
18. After hearing the learned Counsel for the parties, I am of the view that the compensation awarded to all the appellants is too low and meagre and various considerations, as indicated above, have not been taken into account in their true perspective by the Tribunal. The doctor has assessed 15 per cent disability of Dr. M.L. Sharma, appellant, because of shortening of his leg. The appellant was not able to undertake the research project because of the accident as he is not able to climb the hills. He can never be the same normal man again as he was prior to the accident. The scars that have been left on his body and other factors which have been indicated above which are to be taken into consideration while awarding compensation which have not been taken into consideration by the Tribunal, I am of the view that on all these counts Dr. M.L. Sharma is entitled to enhancement in the compensation. Though the learned Counsel for the appellants submitted that under all the heads the compensation should be at least Rs. 3,00,000/-, I am of the view that under all the heads, a sum of Rs. 2,25,000/- would be adequate and just compensation.
19. In case of Sudha Sharma, the learned Counsel for the appellants submitted that Rs. 2,00,000/- would be the minimum compensation that should have been awarded to the appellant by the Tribunal. She has suffered a lot, there is disfigurement, a permament scar on her head where she lost her hair which cannot grow and on the basis of other factors given in the paras above, including the loss suffered on the value of the car due to accident, compensation of Rs. 1,50,000/-, according to me, would be the just and appropriate compensation.
20. So far as Puja Sharma is concerned, she is a young girl, having suffered trauma of accident, losing her sister, a permanent scar which is likely to grow bigger with her age, the diminishing of prospects of her marriage and the change in her personality and host of other considerations indicated above would entitle her to compensation of Rs. 1,00,000/- though, according to the learned Counsel for the appellants, she was entitled to a minimum compensation of Rs. 1,50,000/-.
21. For the reasons recorded above, the appeals are allowed and the compensation of Dr. M.L. Sharma in F.A.O. No. 377 of 1989 is enhanced to Rs. 2,25,000/-, of Sudha Sharma in F.A.O. No. 379 of 1989 the compensation is enhanced to Rs. 1,50,000/- and that of Puja Sharma in F.A.O. No. 378 of 1989 to Rs. 1,00,000/-. All the appellants would be entitled to interest at the rate of 12 per cent per annum on the amount of compensation from the date of the claim application to the date of payment (minus the amount already paid by the respondent). The appellants would be entitled to costs which are quantified as Rs. 1,000/- in each case.