Madhya Pradesh High Court
Mangilal vs Pramod And Anr. on 8 January, 1988
Equivalent citations: 2(1988)ACC306
JUDGMENT K.L. Shrivastava, J.
1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 (for short 'the M.V. Act') is directed against the award dated 1-10-1984 made by the Motor Accidents Claims Tribunal West Nimar, Mandleshwar in Claim Case No. 96 of 1982.
2. Facts not in dispute for the purposes of this appeal are these. The appellant Mangilal (AW 2) at the relevant time, was employed as first driver of the bus bearing registration number M.P.U. 5034 owned by the respondent No 1 Pramod Shah and insured with the respondent No. 3. On 5-5-82 at about 9 a.m. when it was being driven by its second driver, the respondent No. 2 Gulsher, it met with an accident on the Khetia-Pansemal road near Khetia. The appellant Mangilal in his capacity as the first driver of the bus was one of the occupants of the bus. As a result of the accident the bus bumped violently and turned on its left side In consequence, the appellant sustained multiple injuries including communited fracture of tibia of the left leg. He had to remain as an indoor patient for a period of about three months and the wound of the leg had not healed up even by 7-4-84. He has suffered permanent disability due to the fracture and is not in a position to work as bus-driver.
3. The appellant on 5-11-82 filed a claim petition under Section 110-A of the M.V. Act against the owner of the bus, its second driver Gulsher and the insurer, the respondent No. 3. According to the claim petition the petitioner, at the time of the accident was aged 40 years, and was earning Rs. 1000/- per month inclusive of pay of Rs. 600/- and allowances. The accident was occasioned due to rash and negligent driving by the respondent No. 2 Gulsher. Towards medical expenses, pain and suffering, loss of earning and loss of expectation of life a claim in the sum of Rs. 1,00,000/- was laid.
4. The owner and the driver of the accident bus remained ex-parte. The insurer alone contested the claim by denying the averments as to rash and negligent driving. The claim was also assailed as highly exaggerated.
5. At the conclusion of the trial the learned Tribunal held that the accident in question was occasioned due to negligence of the respondent No. 2 and that the appellant has sustained several injuries including the fracture as a result of the accident. It held that the defaulting driver of the bus, vicariously his master and under the contract of insurance the insurer of the vehicle were jointly and severally liable towards compensation which it assessed at Rs. 24,425/- consisting of Rs. 18,900/- for permanent disability, Rs 4000/- for pain and suffering and the medical expenses.
6. The contention of the learned Counsel for the appellant in this Court is that the claim is under the M.V. Act and the learned Tribunal etred in assessing compensation for permanent disability on the basis of Workmen's Compensation Act, 1923 (for short the W.C. Act). It is urged that the appellant having become incapaciated to work as driver is in his circumstances, entitled to a higher amount towards compensation. According to the learned Counsel the rate of interest at 6% per annum also deserves to be increased.
7. The contention of the learned Counsel for the respondent No. 3 is that the appellant can certainly take-up other work and the award does not deserve to be interfered with.
8. The point for consideration is whether the amount of compensation is inadequate to as to require interference.
9. On a careful consideration we find that there is force in the contention of the learned Counsel for the appellant that the learned Tribunal erred in assessing the compensation with reference to the W.A. Act.
10. In the decision in New India Assurance Co. v. Bagdibai 1985 M.P.L.J. 114 it has been pointed out that in the case of personal injury or death of a workman in the course of his employment and arising as a result of motor accident the provisions of the W.A. Act as well as Sections 95 and 96 of the M.V. Act are attracted if the owner of the vehicle is insured in respect of the motor vehicle. The liability under the W.C. Act is irrespective of the question of any negligence but proof of negligence is a pre-condition for a claim under Section 110-A of the M.V. Act.
11. Reference at this stage may be made to the provision embodied in Section 110-AA of the M.V. Act. It reads thus:
Notwithstanding anything contained in the Workmen's Compensation Act, 1923, where the death or bodily injury to any person gives rise to a claim for compensation under this act, 1923 the person entitled to compensation may without prejudice to the provisions of Chapter VII A, claim such compensation under either of those Acts but not under both.
Where the claimant prefers the forum of the Tribunal and undertakes the burden of proving negligence there is no reason why his claim should be restricted with reference to the provisions of the W.C. Act. It is under Section 110 B of the M.V. Act that the legislature has provided for compensation to the victim of a motor accident. The provision thereunder requires the Tribunal to make an award determining the amount of compensation which appears to it to be just.
12. In the decision is Saminder Kaur's case 1987 ACJ 7 the import of the term 'compensation' has been explained and it has been pointed out that the word 'Just' occurring in the section is of a very wide amplitude. It is true that a claimant should not be permitted to make a fortune out of mis-fortune that has be-fallen him but as pointed out by the Supreme Court in concord of India Insurance Co. Ltd. v. Nirmaladevi 1980 ACJ 55 the determination of the quantum of compensation must be liberal, not niggardly since the law values life and limb in free country in generous scales. As pointed out in the decision in Vinod Kumar Bhatnagar's case 1984 ACJ 776 compensation to a living person for his sufferings and disablement has to be substantial and not merely taken.
13. No amount of money can restore the fractured human frame to its original condition. In determining the monetary compensation under Section 110-B of the M.V. Act various factors have to be taken into consideration The determination of compensation by any precise mathematical calculation is not possible in the very nature of things and it has rightly been remarked that in determination of compensation arithmatic is a good servant but a bad master.
14. In a case of personal injury compensation awarded falls under the following two heads:
(a) for pecuniary loss, and
(b) for non-pecuniary loss.
Full compensation for pecuniary loss suffered by the claimant has to be awarded subject to rules of remoteness and mitigation. As regards non-pecuniary loss or general damages, items of loss and injury for which compensation is claimed have to be quantified in terms of money. Personal injuries sustained may be simple or grave and in addition to pain and hardship may occasion loss of pleasures of life. Damages are awarded in respect of pain and suffering already undergone and likely to be undergone in future, in respect of the loss of the amenities of life and in respect of the reduction in the expectation of life. Assessment of damages for pain and suffering has necessarily to depend upon a reasonable view of the case having regard to all the circumstances. It has also to be remembered that damages awarded in an action for torts are compensatory and not punitive. As regards damages to be awarded for the loss of pleasures of life, the personal circumstances of the plaintiff must form the background of the assessment. In this connection reference may usefully be made to the division bench decision in Deepti Tiwari v. Bhanwar Lal 1966 ACJ 217 (M.P.). Note has also to be taken of the fall in the purchasing power of money and also of the fact that the claimant can claim compensation but once.
15. It is well-settled that unless the compensation awarded is too inadequate or too excessive no interference in appeal is called for.
16. Now we proceed to determine the question applying the aforesaid principle to the facts and circumstances of the present case.
17. The testimony of the appellant Mangilal (AW 2) is that after the accident he was admitted in Barwani Hospital and as the doctor there advised amputation of the leg, he decided to shift to Ujjain for treatment. He stated that his left leg has become weak and is also shortened and he cannot drive a motor vehicle. He has stated that he was having a monthly income of Rs. 900/- inclusive of Rs. 600/- as salary and allowances. With this evidence on record it cannot be held that the appellant was earning Rs. 600/- only. We also have it in the evidence of Dr. B.N. Chouhan (AW 3) that on examining the appellant on 5-5-82 he had found 4 lacerated wound on his person including fracture and had prepared the injury report of date vide Ex. P-19 Dr. Jatnindar (AW 1) was examined on 7-8-84. He identified the appellant and in the deposition of the doctor, the learned Tribunal has appended a note to the effect that there is visible thinning of the appellant's left leg which still had an oozing wound. According to the evidence of Dr. Jamindar the appellant's left leg has become permanently disabled. The testimony of Dr. Sinha (AW 4) is that the appellant has suffered permanent disability of the left leg to the tune of 40 to 60 per cent inasmuch as there is bowing of the bone and absence of dorsal flex as a result of the wasting of muscles.
18. A perusal of paragraph 9 of the deposition of Dr. Jamindar (AW 1) shows that there is mal-union and shortening of leg and as a result the appellant even after the wound heals up, would not be in a position to walk normally or to drive motor vehicle with efficiency.
19. In the Division Bench decision in Mukhtyar v. M.P.S.R.T.C. 1987 (II) M.P.W.N. 200 it has been held that where there is amputation of leg compensation should be Rs. 50,000/- or more.
20. On a careful consideration of the facts and circumstances of the case including the age of the appellant, his income and his disability, we are of opinion that a total compensation in the sum of Rs. 50,000/- (fifty thousand) including medical expenses would constitute just compensation.
21. In the result, the appeal is partly allowed. The amount of compensation determined by the learned Claims Tribunal is increased to Rs. 50,000/- (fifty thousand). This amount shall carry interest at the rate of 9% per annum from the date of the application till realisation. The award shall stand accordingly modified. The respondent No. 3 shall bear its own costs of this appeal and shall pay to the appellant the latter's costs in this Court. Counsel's fee Rs. 200/- if certified.