Rajasthan High Court - Jaipur
Prahlad Rai vs Pradeep Kumar And Ors. on 10 July, 2001
Equivalent citations: II(2002)ACC147, 2003ACJ1822, 2002(1)WLC654, 2002(2)WLN311
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT Panwar, J.
1. This appeal is directed against the judgment and award dated 12.9.94 passed by the Motor Accidents Claims Tribunal, Bhilwara (hereinafter for short "the Tribunal") by which the learned Tribunal held the appellant contributory negligent to the extent of 50% and awarded compensation in favour of the appellant for a sum of Rs. 1,19,000/- alongwilh interest @ 12% p.a. Being aggrieved and dissatisfied by the judgment and award impugned, the appellant- claimant has filed this appeal seeking enhancement.
2. Brief facts which are necessary for decision of this appeal are thus; on 18.5.92 at about 5.30 PM the appellant was proceeding from Triveni Chauraya to Bigod on Spark moped No. RRE 5046 at a moderate speed. The said moped was driven by him fully under control. When he was plying over Triveni River bridge, at that time, a truck No. MP 14 C 1397 was also proceeding ahead of him, which came to be stopped suddenly by its driver respondent No. 2, without any signal or indication, the driver of the said truck started reversing the truck rashly and negligently, as a result of which, the appellant who was about 10 to 20 feet behind the truck on a stationary moped, was hit by the said truck while it was being reversed. Due to this accident the moped and the appellant's leg were crushed under the rear wheel of the truck, which resulted in amputation of the left leg of the appellant from above knee. The appellant also sustained injury on meta tavsal bone and toe of right leg. It is the specific case of the claimant that respondent No. 2 Dhanna Lal suddently reversed the truck without ensuring the safety of a person on road and without the help of a Cleaner and as such, he was rash and negligent in reversing the truck, which resulted in the said accident. Respondent No. 1 is the owner of the said truck and at the relevant time, the truck in question was validly insured with respondent No. 3. A claim petition was filed before the Tribunal claiming compensation under various heads for a sum of Rs. 5,83,300/-.
3. Respondents No. 1 and 2 filed their joint written statement and denied the fact of negligence. However, the accident was not disputed. Respondent No. 3 also filed written statement wherein it was admitted that at the relevant time of the accident, the said truck was validly insured with respondent No. 3. The Tribunal framed as many as 7 issues and tried the case.
4. While deciding issue No. 1, the Tribunal reached to the conclusion on the basis of evidence of the claimant that it is fully established that the appellant sustained injuries due to driving of truck No. MP 14 C 1397 negligently by its driver respondent No. 2. Issues No. 2, 3, & 4 were not pressed by the respondents on whom the burden on of proof lay. While deciding issue No. 5, the Tribunal held that the appellant himself was contributory negligent to the extent of 50%. While deciding the issue of quantum i.e. issue No. 6, the Tribunal assessed a sum of Rs. 2,38,000/- but in view of the finding on issue No. 5, the Tribunal reduced the compensation td 50% and as such, awarded a sum of Rs. 1,19,000/-.
5. I have heard that learned counsel for the parties, I have also scrutinised and evaluated the evidence on record.
6. It was contended by the learned counsel for the appellant that the Tribunal fell in error in holding the appellant negligent to the extent of 50%. He has seriously assailed the finding on issue No. 5. It is contended that the Tribunal Itself has reached to the conclusion while deciding issue No. 1 that the said accident was result of driving of truck No. MP 14C 1397 negligently. Despite this categorical finding arrived at by the Tribunal, there was hardly any occasion for the Tribunal to have held the appellant contributory negligent and that too to the extent of 50%.
7. Undisputedly, the place of accident is bridge of river Triveni. The said truck was plying on the bridge and the appellant was proceeding behind the said truck on a moped. AW I Prahlad Rai stated on oath that he was proceeding from Triveni Bigod on his Spark moped and while he was on the bridge of Triveni river, a truck which was proceeding in the same direction ahead of him about 20-25 feet. At the same time, three other vehicles were coming from opposite direction. While crossing the vehicles from the opposite direction, the driver of the truck, which was ahead of him suddenly stopped the said truck and by seeing the truck having been stopped, the appellant also stopped at a distance of about 15 to 20 feel away from the truck ahead. Without any indication or signal, suddenly respondent No. 2 reversed the truck at a great speed rashly and negligently. The driver of the truck did not even blow the horn and also did not ensure the safety of persons behind him on the road by keeping to Cleaner at the rear of the truck for the purpose of giving signal to the person on road regarding the truck being reversed. In these circumstances, he could not visualise and could not anticipate that the truck would be taken to reverse side. Before he could move to save himself, the rear wheel of the truck dashed again him and his moped and left leg were crushed under the rear wheel of the truck. He sustained injuries on his both the legs, which ultimately resulted in amputation of the left leg from above the knee. Soon after the accident, he was taken to Govt. Hospital, Bigod and thereafter looking to the seriousness of injuries, he was referred to Govt. Hospital, Bhilwara and from Bhilwara, he was further referred to Ahmedabad. He re/named under treatment at Ahmedabad. He was admitted in Vadilal Sarahai Hospital at Ahmedabad for a period of more than a month. He stated that a sum of Rs. 80,000/- has been incurred by him for the altendants, conveyance, nourishment of diet, treatment expenses etc., at Vadilal Sarabhai Hospital, Ahmedabad. He also remained under treatment at Navrangpura Hospital at Ahmedabad. In his statement, the details of treatment, the place of treatment and the expenses incurred by him have been categorically stated. He has placed on record various documents including the treatment bills, documents relating to his income, permanent disablement, the bills of repair of his moped and various documents relating to admission and discharge from various hospitals.
8. Respondent No. 2 Dhanna Lal was examined as NAW 1. In his statement, he admitted that while he was plying the truck over the bridge of Banas river commonly known as Triveni river, at that time, he found that a truck was stationary on the bridge and, therefore, he stopped his truck behind the said stationary truck. Since the stationary truck did not move ahead and in these circumstances, he reversed his truck in order to make a reasonable gap to over take the stationary truck and for that purpose, he was in the process of reversing his truck at that time, the appellant came from behind on a moped and collided with his truck. He has admitted that with regard to this accident, a criminal case is pending against him. He has also admitted that the heavy vehicle can be stopped with single padle brake but if the brakes are not good then by single padle, the heavy vehicle cannot be stopped. However, he admitted that in the mechanical report Ex. 3 it has rightly been mentioned mat the truck, which was driven by him could only be stopped by applying double padte brake. He has also admitted that the fact regarding the Cleaner has not been mentioned in his written statement,
9. Normally when a vehicle is plied on the road, it is hardly expected that it would suddenly be reversed, and in these circumstances, the person plying the vehicle behind the vehicle going ahead would not anticipate that the vehicle going ahead suddenly would move in a reverse direction. The appellant clearly stated that the truck in question was plying ahead of him and suddenly respondent No. 2 stopped the truck on the bridge. He had no option but to stop his moped at a distance of 10-15 feet. Respondent No. 2 the driver of the said truck has not ensured the safety of the person on the road/bridge before reversing his truck. The theory propounded by respondent No. 2 that the Cleaner was behind the truck appears to be after though and in order to save himself from liability as this fact was not pleaded in the written statement filed by respondent No. 2. For the first time he has introduced this theory while making the statement. He clearly admits that in the written statement he has not pleaded this fact. Regarding the horn while reversing the vehicle, the claimant clearly stated that the driver of the truck did not blow the horn. He further stated that before reversing the truck, there was not any type of indication including the rear light, which is used in reversing a vehicle. The respondent has only stated that the vehicle with the red light was on. It is a matter of common knowledge that when a vehicle is suddenly stopped, the the red light would automatically be on but for the purpose of reversing the Vehicle, the light has to be white. This shows that at the lime of reversing, the vehicle did not have a white light and on having come to know that the truck is reversing, the appellant made effort to same himself but before he could do anything, the rear wheel of the truck crushed his moped and his leg. Respondent No. 2 the driver of the truck has not observed the regulation of the road. Thus, there can be no hesitation to reach to the conclusion that the driver of the truck was negligent in reversing the truck, which caused the said accident.
10. Ex. 2 site map and site inspection memo also show that the Spark moped was underneath the rear wheel of the said truck and there was tyre mark of reversing the truck for about 20 to 25 feets. Blood was found 4 to 5 feet around the truck. It can safely be concluded that the driver of the truck was so negligent that even after dashing the moped and its rider while he continued to reverse the truck and after finding that the moped had come under the wheel of the truck, then only the truck was brought to halt. From Ex. 3 read with the statement of NAW 1 Dhanna Lal, the truck driver, it appears that the vehicle was not having accurate brake system and this was also one of the reasons that even after hitting the appellant, the vehicle could not be stopped. In this view of the matter, in my considered opinion, the said accident was solely due to rash and negligent reversing of the truck by respondent No. 2. While deciding issue No. 2, the Tribunal rightly concluded that from the evidence in its opinion, it is fully established that the appellant-claimant sustained injuries due to negligent driving of the truck No. MP 14 C 1397. From the evidence as noticed above, it is established that the appellant-claimant has not contributed anything in the happening of the accident and, therefore, the finding on issue No. 5 in holding the appellant contributory negligent to the extent of 50% cannot be sustained and liable to be quashed. Accordingly, the finding on issue No. 5 is set aside and quashed and it is held that the said accident was solely due to rash and negligent driving of the truck by its driver respondent No. 2.
11. The appellant has also challenged the quantum of compensation assessed by the learned Tribunal. It is settled law that in appeal the quantum in interfered with only if the compensation awarded in inadequate or it is too excessive, as the case may be. Obviously the compensation awarded by the Tribunal for the amputation of the left leg and other heads in respect of a young man of 25 years is at lower side.
12. The Tribunal has assessed the following compensation:-
Treatment 15,000.00 Loss of income for three months 3,600.00 Treatment at Bigod &Bhilwara 600.00 Conveyance Charges and for attendants from Bigod to Bhilwara, Ahmedabad and back.
12,000.00 Dressing at Mahaveer Kaushik by Compounder.
1,000.00 Treatment at Ajmer 1,400.00 Repair of moped.
2,000.00 Physical pain and mental agony due to amputation of leg.
8,000.00 Loss of income @ Rs.600A p.m. for 27 years.
1,94,400.00 Total Rs.
2,38,000.00
13. It has been established by the claimant's evidence that at the time of the accident, he was engaged with M/s. Sahara India as a Collection Clerk and used to earn Rs. 2300/- p.m. He has placed on record various documents showing that he was paid commission @ 4% and subsequently @ 15% by his employer. He has placed on record certificate Ex. 1 issued by his employer wherein the average income for the years 1989-90, 1990-91 and 1991-92 has been mentioned. Ex. 1 clearly goes to establish that at the relevant time, the claimant was earning Rs. 2300/- p.m. This part of the evidence remains unrebutted. The claimant placed his age and income in his claim petition, which has not been specifically denied by the respondents in their respective statements. As such, it is established by unrebutted evidence that at the relevant time the monthly income of the appellant was. 2,300/-. It has also been established that due to the aforesaid accident, his left leg was amputed from above knee. He was medically examined with regard to his permanent disablement by a Senior Orthopaedician and Head of the Department of Orthopedic, Mahatma Gandhi Aarogya Sadan, Bhilwara on 9.8.83 and in the opinion of the doctor the injury resulted in permanent disablement to the extent of 70%. The appellant has placed on record the expenses incurred by him on account of the treatment vide Ex. 13 to 97, repair bill for moped Ex. 98 and various prescriptions, Admission and Discharge ticket Ex. 8 and Ex. 9 and the record of treatment at Bhilwara; Sarabhai Desai Hospital, Ahmedabad; and Dr. Java and Diagnostic Centre, Ajmer etc.
14. It is settled law that in appeal quantum of compensation is interfered only when the amount awarded is inadequate or it is too excessive as the case may be. Obviously, looking to the nature of injuries and disablement, the amount awarded by the Tribunal is grossly inadequate, therefore, needs enhancement.
15. It is settled law that while fixing the amount of compensation payable to a victim of the road accident, the damages have to be assessed separately as pecuniary damages and non-pecuniary damages. Pecuniary damages include the actual expenses incurred and are capable of being calculated in terms of money, whereas non-pecuniary damages are those which are incapable of arithmetical calculations. So far as non-pecuniary damages are concerned, they are generally called general damages which may include the damages for physical pain, shock as also mental agohy, which the victim had suffered and would suffer in further on account of injuries or the disablement. It also includes the damages to compensate for the loss of amenities of life which varies from person to person and injury to injury as on account of injury of the disablement victim of an accident may not be able to walk, run, sit properly and may not be in a position to drive the vehicles or even may find difficulty in moving from one place to another without help of attendants. Such damages also include loss of expectation of life as on account of injury normal longevity of the person concerned is shortened. Discomfort, disappointment, frustration, inconvenience and mental stress in life are the grounds of general damages.
16. In the instant case, the appellant who is young person of 25 years of age became disabled on account of the amputation of open of his legs from above the knee due to Ih3 said accident, in this background, although it is quite difficult to assess the exact compensation for the physical pain and suffering,as also the mental agony which he had suffered and would continue to suffer for rest of the span of life.
17. In the case of R.D. hattangadi v. Pest Control (India) Pvt. Ltd. (1), the Hon'ble Supreme Court observed as under: -
"It cannot be disputed that because of the accident the appellant who was an active practicing lawyer the become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame."
18. It was further observed as under:-
"It is very nature 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 disability caused. But all the aforesaid elements have to be viewed with objective standards."
19. In the aforesaid case, an active practising lawyer became crippled due to the injuries sustained in accident and their Lordships of Hon'ble Supreme Court awarded Rs. 3,00,000/- for pain and suffering and loss of amenities of life.
20. In Amar Singh v. Ishwar and Ors. (2), the Apex Court enhanced the compensation from Rs. 50,000/- to Rs, 1,00,000/- for pain, shock and suffering in the case of claimant therein having 30% permanent disablement.
21. In Kadir S/o Shri Said v. Moin S/o Ahmad Khan and Ors. (3), this Court awarded non-pecuniary damages of Rs. 1,50,000/-. In that case, the claimant injured was a labourer or a Cleaner in the truck and the Tribunal awarded Rs. 54,000/- for non-pecuniary damages. In that case, the injured suffered permanent disablement to the extent of 25% and the injury resulted in shortening of leg by 2-1/2". Looking to the young age of the claimant, this Court awarded Rs. 1,50,000/- as non-pecuniary damages.
22. In Shashendra Lahiri v. UNICEF and Ors. (4), Hon'ble Supreme Court enhanced the compensation from Rs. 58,000/- to Rs. 4,58,000/- by granting an additional compensation of Rs. 4,00,000/-. Appellant of that case suffered permanent disablement of shortening of his right leg by 3 inches. He was 17 years of age and brilliant student of B.Com. In view of the age of the appellant at the time of the accident and the prospects and the adverse effect of his permanent disability as a result of the motor accident, the compensation awarded was further enhanced by Rs. 4,00,000/-with interest @ 12% p.a. from the date of the claim.
23. In Swatantra Kumar v. Qamar All and Ors. (5), the Hon'ble Supreme Court awarded Rs. 1,00,000/- to the pillion rider as compensation under the head pain, shock and sufferings. In that case, the injury sustained by the claimant resulted in shortening of his leg by 1.75 inches.
24. Keeping in view the age, usual deprivation which the appellant has suffered and would suffer in future on account of the permanent disablement as also the loss of amenities of life as in the instant case, the appellant has lost one of the legs from above the knee, therefore, it would be difficult for him to walk, run, sit properly and may not be in a position to drive vehicle or even may find difficulty in moving from one. place to another without help of attendants. Taking into account all these facts, in my considered opinion, a sum of Rs. 1,50,000/- would be just and proper compensation for physical pain, shock, inconvenience disablement, mental stress and loss of amenities in life.
25. It has. been established from the evidence noticed above that the injury sustained in the said accident resulted in total permanent disablement to the extent of 70%. The appellant is entitled for compensation under the head loss of income for the present i.e. for the period during which he remained under treatment and for future. From the material on record, it is established that he remained under treatment for the period of about six months. It has also been established that at the relevant time of accident his monthly income was Rs. 2,300/-. This income was at the beginning of his career. His monthly income would have reasonably be enhanced in the ensuing years. It is settled law that while computing compensation in the case of a victim of motor vehicle accident, the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand. Income which the appellant was making at the time of the accident, would not have frozen for all times to come. Taking into account the future prospects, the monthly income of the claimant can safety be assessed to be at Rs. 3000/- and taking into account the permanent disablement to the extent of 70%, the loss of future income is required to be assessed. Considering the uncertainties of the income, it would be reasonable to compute loss of income @ 1500/- per months, which further needs to be multiplied by appropriate multiplier for the lost years. In Ashwani Kumar Mishra v. P. Muniam Babu and Ors. (6), the Hon'ble Supreme Court applied the multiplier of 16. Looking to the age of the appellant, the appropriate multiplier as provided in Second Schedule to Section 163-A of the Motor Vehicles Act, 1988 is 18 years purchase factor. Thus, future loss of income works out to Rs. 1500 x 12 x 18, which comes to Rs. 3,24,000/-. So far as expenses of treatment, nourishment, attendants and conveyance charges, repair of moped etc. are concerned, although it is slightly lower side, yet needs no interference. The Tribunal under these heads awarded total amount of Rs. 31,000/-. Thus, in all the compensation works out to Rs. 5,05,000/- rounded to Rs. 5,00,000/-.
26. In view of the aforesaid discussion, this appeal is allowed and he compensation is enhanced from Rs. 1,19,000/- to Rs. 5,00,000/-. This amount shall carry interest at the rate and from the date allowed by the Tribunal. Respondent No. 3 New India Insurance Company Ltd., Bhilwara is directed to deposit the aforesaid amount of compensation within three months with the Tribunal.