Rajasthan High Court - Jaipur
Executive Officer, Municipal Board, ... vs Bhinwa Ram And Ors. on 27 February, 2001
Equivalent citations: II(2002)ACC687, 2003ACJ1961, 2001(2)WLC520
JUDGMENT J.C. Verma, J.
1. Even though this appeal was filed by the Municipal Board, Jhunjhunu against the claimant-respondent for setting aside the award dated 22.7.1995 passed by the Motor Accidents Claims Tribunal, Jhunjhunu whereby an amount of Rs. 87,977.80 had been awarded to the claimant-respondent because of serious injuries suffered in accident occurred on 10.4.1989 when the fire engine No. RJP 6733 had knocked down the claimant, but the notice was issued for enhancement. The claimant-respondent had sustained injuries on the left leg. He remained in the hospital for about more than a month and suffered a permanent disability. His left leg was amputated. The appeal was admitted, however, at the time of its hearing on 4.10.2000, notice was issued to appellant itself to argue as to why the compensation be not enhanced.
2. Claimant-respondent had suffered injuries because of the accident with fire engine on 10.4.1989, being driven by Jag-dev Kumar and belonging to the Municipal Board, Jhunjhunu. He was hit from behind. There was compound fracture on the leg. He was aged about 55 years.
3. Necessary issues in regard to the accident, negligence and compensation were framed.
4. Injured himself appeared as witness and narrated the facts stating therein that when he reached Shekhawati Hospital, a truck No. RJP 6733 came in a reckless manner. The truck hit him from behind when he was walking on the kacha portion of the road. Govindram PW 2 and Dilip had taken him to the hospital. Operation was conducted on his leg and amputation was done. Similar was the statement of PW 2 corroborating the claimant's case.
5. As many as 101 exhibits were produced including the police report, F.I.R. No. 108 of 1989, site plan, injury reports, mechanical report of the truck, etc.
6. An argument was being raised before the Tribunal by the Municipal Board that the driver who was driving the vehicle was not on his duty. He was never deputed to drive the said vehicle at the time and, therefore, the driver cannot be said to be in the course of employment and even if, assuming the accident to have been caused by the driver because of his negligence, in such a situation, the Municipal Board cannot be held to be liable. This contention of the Municipal Board was rejected. It was held by the Claims Tribunal that the fire fighting truck was belonging to the Municipal Board and the driver was its employee and even if the employee takes out the truck without necessity, in that situation, also the responsibility and the liability of the Municipal Board cannot be said to be less. As per injury report, two injuries were found on the leg, one was crushed wound and the other was compound fracture in tibia and fibula. Amputation of the leg was done at knee with 40 per cent disability. The Tribunal had granted Rs. 80,000 as general damages and amount of Rs. 7,977 towards special damages.
7. Injured had appeared as witness and stated that he had spent about Rs. 20,000 on medicines and about Rs. 10,000 for service from attendants. He had claimed Rs. 50,000 towards pain and suffering. Injured claimed more than Rs. 7,00,000 as compensation.
8. The respondent had produced only one witness, i.e., Executive Officer who had stated that even though the accident was caused, but the driver was taking the vehicle without permission of the Board. No other defence was produced.
9. From the statement of the witnesses and the documents produced, it goes without saying that the accident had been caused because of the negligence of the truck driver involved in the accident. Exhs. 9 to Exhs. 112 are of the medical bills for purchasing the medicines.
10. I agree with the finding of the Tribunal that the vehicle was being driven negligently and rashly which had caused the accident. The defence of the appellant to the effect that the driver was driving the vehicle without authority cannot be believed and is to be rejected.
11. Under the Motor Vehicles Act, adequate compensation is to be awarded. The Tribunal in the present case has assessed Rs. 80,000 for injuries including amputation of leg at the place of knee, apart from the amount spent by him on medicines. It is settled law that in such a situation, the injured-claimant is to be compensated not only for pecuniary loss but also for non-pecuniary compensation.
12. The court is bound to award adequate compensation as per law. No valid reason has been given by the Tribunal, nor the matter has been considered in right perspective while granting compensation as assessed. In my opinion, the court is duty-bound to assess the adequate compensation which had not been done in the present case.
13. In case of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. 1995 ACJ 366 (SC), held that whenever a Tribunal or court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused.
14. Similarly in the case of Ashwani Kumar Mishra v. P. Muniam Babu 1999 ACJ 1105 (SC), the Apex Court has held that for fixing the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration and some amount of sympathy linked with the nature of disability caused. However, all such elements are required to be viewed with objective standards. While assessing the damages, the court cannot base its opinion merely on speculation or fancy though conjectures to some extent are inevitable.
15. In case of Ashwani Kumar Mishra, 1999 ACJ 1105 (SC), apart from the medical expenses Rs. 20,000 were awarded for special diet and expenses for attendant during the treatment. On guesswork his income was assessed to be Rs. 2,000 and applying the multiplier of 16 years awarded the amount on account of loss of expectation of life besides disappointment, frustration and mental stress particularly when he has to keep a permanent attendant to look after him in rest of his life.
16. Counsel for claimant relies on the judgment in case of Shashendra Lahiri v. UNICEF 1998 ACJ 859 (SC), wherein the injured sustained several fractures in leg resulting in shortening of leg by 3", who was 17 years old. He suffered permanent disability. He underwent bone grafting and hospitalization. The Apex Court enhanced the compensation to Rs. 4,58,000 from Rs. 58,000.
17. In case of Karnataka State Road Trans. Corporation v. R. Sethuram 1996 ACJ 1022 (Karnataka), wherein mitigation of damages were permitted to be raised at appellate stage for the first time. The injured sustained fractures and remained indoor patient for four months in India and then went for treatment to USA. He underwent four operations. The injured was 33 years old, employed in USA and was greencard holder. The injured became crippled for life as his right hand always remains in a clawed position and he could walk with the aid of stick only. The injured had lost the lustre of youthful life including sex life and participation in social activities, sports and swimming. He lost the salary of 31 months. The Claims Tribunal awarded Rs. 21,32,900 for medical expenses, conveyance and nourishment and Rs. 2,00,000 towards general damages. The award of the Tribunal was upheld by the Apex Court by the judgment reported in 1999 ACJ 1278 (SC).
18. In case of Jitendra Singh v. Islam 1998 ACJ 1301 (Rajasthan), wherein the injured sustained amputation of left leg and permanent disability to the extent of 55 per cent. The Claims Tribunal awarded Rs. 50,000 as non-pecuniary damages for loss of amenities of life, mental agony and pain and suffering plus Rs. 4,000 for medical expenses. The appellate court allowed non-pecuniary damages of Rs. 3,00,000.
19. In case of Bhagwan Singh Meena v. Jai Kishan Tiwari 1999 ACJ 1200 (Rajasthan), the non-pecuniary damages were enhanced to Rs. 3,00,000 in case of amputation of right leg of the injured.
20. Yet in another case of Gandhari Ramesh v. Janardhan 1999 ACJ 816 (AP), the appellate court enhanced the compensation to Rs. 3,66,000 in the case of total severance of right arm of injured having loss of efficiency to the extent of 90 per cent.
21. In case of Swatantra Kumar Lamba v. Sheila Didi 1988 ACJ 74 (P&H), the injured suffered fractures in both bones of left leg and shortening of leg by 2 cm. resulting in limping and permanent disability to the extent of 20 per cent, the movements of ankle are limited and dorsiflexion is limited to half. The injured found it difficult to stand on tiptoes. The injured was an advocate and 30 years old and could not attend to his professional work for 10 months. The award of Rs. 3,53,500 was granted.
22. In case of Ekta Khaitan v. Sita Ram 2000 ACJ 744 (Rajasthan), wherein the right leg and right middle finger of injured were amputated. She sustained fractures in both the thigh bones and left leg bone and received deep cuts on her forehead and face which disfigured her face. This Court awarded Rs. 5,00,000 as non-pecuniary compensation along with Rs. 97,213.62 pecuniary damages.
23. In the case of Inspector General, Stamps & Registration v. Bhagwan Singh, S.B. Civil Misc. Appeal No. 267 of 2000; decided on 22.9.2000 (Rajasthan), this Court upheld the award of Rs. 5,40,000 non-pecuniary damages and pecuniary loss Rs. 1,00,000 along with Rs. 1,25,000 as such the total award of Rs. 7,65,000 was upheld which was awarded to the injured who suffered amputation of left leg. This Court has held as under:
For determination of the quantum of compensation the court has to take into consideration damages separately as pecuniary damages and special damages. The pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant, (i) medical attendance; (ii) loss of earnings of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include, (i) damages for the mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
24. For the reasons and discussions mentioned above, in my opinion, the non-pecuniary compensation for amputation of leg should not be less than Rs. 3,00,000 in place of Rs. 80,000 which had been awarded by the Tribunal, in addition to special damages of Rs. 7,977. Exhs. 9 to Exhs. 112 have been attached by the claimant showing the actual medicines purchased, total of which comes to Rs. 7,977 which the Tribunal had granted as actual pecuniary loss. In my opinion, it was a fit case where the Tribunal should have granted other amounts as well as special damages, i.e., loss suffered because of remaining in the hospital, treatment, special diet, attendant, etc. Apart from actual expenses spent on medical as per the receipts of the medicines produced, the injured must have spent some amount for which normally no receipts are maintained, therefore, in my opinion, the actual expenses for medicines ought to be enhanced from Rs. 7,977 to Rs. 10,000. The injured remained in the hospital from 10.4.1989 to 19.4.1989 and again from 28.4.1989 to 16.5.1989, i.e., 28 days. He had claimed a nominal amount of Rs. 4,774 for loss of earnings for about these 28 days and another amount of Rs. 1,500 only for the attendant. The Tribunal had totally omitted to grant this amount to the injured and, therefore, in my opinion, another amount of Rs. 6,300 is to be paid because of the loss of actual wages and when he remained in the hospital and to the attendant. By adding another amount of Rs. 3,700 to make it a round figure for special diet, etc., the total amount under this head is raised to Rs. 10,000. In view of the above said discussion, the total compensation is enhanced to Rs. 3,20,000 which shall bear interest at the rate of 12 per cent per annum instead of 15 per cent as awarded by the Tribunal. The amount already paid including interest shall be adjusted and balance of the amount shall be paid within two months of the receipt of the certified copy of this order.
25. For the reasons and discussions mentioned above, the misc. appeal is allowed.