Union Of India vs Tilak Raj Singh on 1 June, 2018

[Cites 17, Cited by 1]

Delhi High Court

Union Of India vs Tilak Raj Singh on 1 June, 2018

Equivalent citations: AIRONLINE 2018 DEL 1600

1. The journey from Meerut to Ludhiana undertaken by the Plaintiff has proved to be a very long one. An unfortunate incident that occurred on 20th October, 1987 i.e. three decades ago is the subject matter of the present appeal. It has been over 30 years and the Plaintiff has been running from pillar to post, seeking compensation, after having had his left leg amputated in a train accident.

2. The Respondent/Plaintiff, Mr. Tilak Raj Singh (hereinafter „Plaintiff‟) boarded a II general class compartment of the Frontier Mail from Meerut Cantt. to Ludhiana (hereinafter, „train‟). When the train reached Muzaffarnagar, about 5 or 6 bogies (viz., compartments) of the train did not reach up, till the platform. At the Muzaffarnagar station, the Plaintiff, who was standing at the right hand exit with other passengers, had to give way and alight from the compartment in order to enable ingress and egress of RFA 245/2017 Page 1 of 26 passengers. While the passengers were alighting from the train, suddenly the train moved and the Plaintiff and the other passengers, who were on the platform, tried to board the train. Due to the sudden and jerky movement of the train, the Plaintiff along with other passengers fell and he got entangled between the wheels of the train and was dragged for a long distance. No first aid was given to the Plaintiff, who was sent to the civil hospital in Muzaffarnagar on a rickshaw. Due to loss of blood and inadequate facilities there, he developed an infection and was, thereafter shifted to Safdarjung hospital. The condition of the Plaintiff became extremely critical and he was operated upon thrice at Safdarjung hospital. The infection continued to persist and finally he got his fifth operation done from an orthopaedic surgeon in a nursing home at Meerut. The Plaintiff's left leg had to be amputated. The Plaintiff was severely injured due to the accident. He had to give up sports and though he was a law student studying at Meerut, he could not pursue his studies.

3. It is the Plaintiff's case that there were several deficiencies, and in fact, negligence by the railways which led to such a severe consequence of loss of a leg. He, accordingly, filed a suit in the District Court at Meerut on 3rd September, 1990 seeking damages/compensation. The railways raised an issue of jurisdiction and, after a period of 12 years, on 14th January, 2002, the plaint was returned by the Civil Court, Meerut to be filed in the Court of competent jurisdiction.

4. The Plaintiff then, upon legal advice, filed an application claiming compensation before the Railway Claims Tribunal (hereinafter „RCT‟), Ghaziabad on 3rd August, 2005. Unfortunately for the Plaintiff, on 23rd July, 2008, the RCT held that the case is liable to be tried only by a Civil Court of RFA 245/2017 Page 2 of 26 competent jurisdiction and not by the Claims Tribunal as constituted under the Railways Act, 1989 (hereinafter, „Railways Act‟). The reasoning given by the RCT was that the incident took place prior to the constitution of the Tribunal under the Railways Act. The suit was then shuttled back to the District Judge, Meerut who declined to accept the case saying that the RCT was not competent to transfer the case to it.

5. Thereafter, the present suit came to be filed on 1 st October, 2008 before the original side of the Delhi High Court. The entire original record was summoned from the RCT. Arguments were heard on the question of limitation. On 20th September, 2010, a learned Single Judge of this Court held that the suit is barred by limitation and the suit was rejected under Order VII Rule 11(d) of CPC. This judgement was challenged in appeal before the Division Bench of the Delhi High Court, which held that the period during which the suit remained pending before the Civil Judge, Meerut and the RCT ought to be excluded in view of Section 14 of the Limitation Act. The suit, thereafter, proceeded to trial.

6. The following issues were framed in the suit on 18th March 2013.

"1. Whether the plaintiff is entitled to a decree of recovery of money, as prayed? (OPP)

2. Whether the plaintiff is entitled to claim interest, if so at what amount, at what rate and for which period? (OPP)

3. Whether this Court has no territorial jurisdiction? (OPD)

4. Whether the plaintiff has not properly valued the plaint for the purposes of court fees and jurisdiction? (OPD)"

7. On 4th January 2016, due to the increase in the pecuniary jurisdiction RFA 245/2017 Page 3 of 26 of the Delhi High Court, the suit was transferred to the District and Sessions Judge, Patiala House Court Complex. Final arguments were heard and vide the impugned order, the suit was decreed for the sum of Rs.6,60,000/- along with the interest @ 12% per annum.

Summary of Evidence

8. In the suit, the Plaintiff filed his evidence by way of affidavit and gave a detailed account of the day of the incident. He deposed that the train was fully packed and carrying more than 200 passengers in a bogie which is meant for 90 passengers. It was due to this overcrowding that the Plaintiff was standing at the right exit along with other passengers. At Mazzafarnagar, when the train came to a halt, the bogie in which the Plaintiff was travelling was not at the platform. The Plaintiff obtained information under RTI which showed that the train had 17 coaches but the Muzaffarnagar station did not have the capacity to accommodate the said 17 coaches. It was only capable of accommodating 13 coaches and thereafter on 4th December, 1990 a decision was taken to extend the platform for enabling 18 coaches on the said platform. When the train reached the platform, the Plaintiff had to alight from the compartment to enable the other passengers to exit with their luggage. He deposed that the train suddenly started moving without any warning or whistle which led him and other passengers to board the train. In this process, due to the sudden and jerky movement of the train, he fell and his left leg got entangled between the wheels of the train. He was also dragged for a long distance and thereafter, his leg had to be amputated. He further deposed that there were various negligent acts of the Railway administration, which led to a panic situation RFA 245/2017 Page 4 of 26 resulting in the amputation of his leg. Even the basic facilities of first aid were not available at the platform. He, thus, prayed for grant of damages under the following heads.

"A. Special Damages Expenses for medical treatment, conveyance, special diet, nursing charges etc. Rs.60,000/- (Rupees Sixty thousand only).

B. General Damages

i) Pains and sufferings: Rs.25,000/- (Rupees Twenty five Thousand only).

ii) Mental shock and agony: Rs.50,000/- (Rupees Fifty thousand only)

iii) Loss and permanent disability: Rs.2,50,000/- (Rupees Two lac fifty thousand only).

iv) Loss of better prospects of marriage: Rs.1,00,000/- (Rupees one lac only)

v) Loss inefficiency in earning capacity: Rs.5,50,000/-

(Rupees Five thousand and fifty thousand only) Total : Rs.10,25,000/- (Rupees Ten lac twenty five thousand only)."

9. The Plaintiff, thereafter, explained the circumstances in which he filed a suit for recovery as forma pauperis before the Civil Judge, Meerut and thereafter, before the RCT. Even before the RCT, after judgement was reserved, the Railways filed an application for framing of an additional issue, i.e. that since the incident occurred prior to coming into force of the Railways Act, and thus the RCT had no jurisdiction. This led to the RCT rejecting the Plaintiff's claim.

10. In his evidence, the Plaintiff placed on record Ex. PW-1/3 dated 4th December, 1990 which is a document of the railways approving the RFA 245/2017 Page 5 of 26 extension of passengers' platform number 1 to accommodate 18 bogies rake at the Muzaffarnagar station. He also placed on record a letter dated 18th December, 1990 under which the railways approved the costs for extension of the said platform. It is interesting to note that in the said document, it is clearly admitted that the platform at Muzaffarnagar station could accommodate only 13 coaches.

11. In the cross examination of the Plaintiff, an issue was raised that he was unable to show a valid ticket for his travel on the train. He submitted that the ticket number was mentioned in the petition filed before the RCT. He had placed all the medical documents on record including the original disability certificate issued by the District Hospital, Meerut. At the time of his cross examination in October 2014, he was posted as an office superintendent in the Income Tax Department, at Meerut.

12. The Railways on its behalf filed the evidence of Mr. Chandrika Prasad, who was the deputy CCM (West) NDCR Building, Northern Railway, New Delhi as DW1. The crux of his evidence was that the Plaintiff ought not to have boarded a crowded train. He further deposed that the Plaintiff suffered due to his own negligence. An ex-gratia amount of Rs.5,000/- was sanctioned for the alleged leg injury. The railway board considered the case but did not deem it appropriate to grant any compensation. He also stated that the Plaintiff did not have a valid ticket. In his cross examination, DW-1 admitted that there is no record to show as to at what time the train stopped and moved at the Muzaffarnagar station. Thus, he admitted that he had no basis to state that the train had stopped and started as per the rules. He was also not sure if the train had 17 bogies at the relevant time. He admitted that "there was no limit on the sale of second RFA 245/2017 Page 6 of 26 class general category railway tickets". He further deposed as under:

"I do not know whether five tickets were sold from Meerut Cantt to Ludhiana on the date of the accident and out of that only four were collected at Ludhiana. I do not know whether the fifth ticket which was not collected at Ludhiana was that of plaintiffs. We have not verified the particulars of the ticket which were given to us by the plaintiff."

13. Thus, he had not verified the Plaintiff's ticket number as was mentioned in the petition before the RCT, the records of which were tagged in the present suit. He further admitted that an enquiry was conducted with regard to the incident but he was not sure as to whether the Plaintiff was called to participate in the said enquiry. He admitted that the Divisional Security Commissioner conducted an enquiry and a report was submitted on 12th October, 2006. However, the said report was not placed on the suit record.

14. The impugned judgement of the Trial Court granting damages was passed on 4th August, 2016. In the present appeal, on 3rd March, 2017, this Court directed deposit of the decretal amount along with the interest and the costs. However, there was a serious dispute as to how the interest amount has to be computed i.e. whether it is to be computed from the date of institution of the suit at Meerut or the date of institution of the present suit on 2nd September, 2008. This issue was left open to be decided along with the main appeal.

15. Before this Court, the main arguments of the Railways are -

a) That the suit is barred by limitation

b) The Plaintiff is not a bonafide passenger RFA 245/2017 Page 7 of 26

c) The Trial Court did not have territorial jurisdiction to entertain the suit.

d) The amount awarded by the Trial Court is beyond the maximum limit as provided under Section 124-A of the Railways Act.

16. On the other hand, learned counsel for the Plaintiff submits that the claim of the Plaintiff was for a much higher amount and hence the Trial Court was justified in granting the damages.

Analysis and Findings

17. The accident took place when the Plaintiff was attempting to board the train at the Muzaffarnagar station. Due to the distance between the compartment and the platform, when he tried to board, the train suddenly moved and his left leg was amputated. The accident took place in the night time. The Plaintiff was taken by GRP CP No.4458, Mr. Chatrapal Singh of GRP to the district Hospital at Muzaffarnagar for examination. The injuries were recorded in the medical examination as under:

"Date:20-10-87 Time: 11:45 PM Examined Sri. Tilak Raj, S/o Shri Harcharan Singh Sarang aged about 22 years R/o 364 PS Civil line Meerut Distt. Meerut.

B/B GRP CP No.4458, Chatrapal Singh of GRP, MZN. MI. An old scar 8cm x 3cm on left side back upperfront.

Injuries 1. Abrasion 28cm x 3cm on Lt side back

2. Traumatic amputation of Lt. Leg at the level of Lt knee, faint, hanging only by skin. Nature of injuries Injury No.1 is simple & Inj. No.2 is danger to life."

RFA 245/2017 Page 8 of 26

18. Thus, the injuries to the Plaintiff were extremely serious. The Plaintiff's leg was amputated and he has now got an artificial limb. The Plaintiff initially approached the Civil Court at Meerut and thereafter approached the RCT for compensation. Both forums failed to entertain his plea for various reasons. The Plaintiff thereafter filed a suit before this Court on 1st October, 2008. On the issue of limitation, the plaint was initially rejected by a Learned Single Judge of this Court vide order dated 20th September, 2010. The said order was challenged before the Division Bench. On 21st February, 2012, a Division Bench of this Court held that the conditions as stipulated in Section 14 of the Limitation Act are applicable to the present case. Thus, the period during which the Plaintiff was before the Civil Court at Meerut and the RCT have to be excluded in calculating limitation. The Division Bench set aside the judgment of the Learned Single Judge and restored the suit for further proceedings.

19. On the question of limitation, therefore, the order of the Division Bench of the Delhi High Court has attained finality i.e. there has been no challenge by the Railways to the same. The findings of the Division Bench of the Delhi High Courts on the question of limitation are as under:

"18. In our view, the aforesaid approach is completely flawed in law for the following reasons. Firstly, the appellant was entitled to test its stand, by seeking a definitive finding on the issue of jurisdiction from the Civil Court at Meerut. A mere plea in the written statement of lack of jurisdiction cannot be made the basis for coming to a conclusion that continuation of the proceedings before the Civil Court at Meerut displayed lack of due diligence and good faith.

18.1 Secondly, the observation proceeds on a RFA 245/2017 Page 9 of 26 factual error, which is, as if the civil court at Meerut while directing return of plaint, had advised institution of the claim in an appropriate civil court. As noticed by us above, the Civil Court at Meerut had infact returned the plaint to the appellant for presentation before "a court of competent jurisdiction". The appellant bearing in mind the stand of the respondents, before the Civil Court at Meerut, approached the Tribunal, in good faith. The Tribunal, by an order dated 07.05.2008, came to the conclusion that the "untoward incident" having taken place prior to 01.08.1994, could only be prosecuted in a civil court. The said order was followed by an order dated 23.07.2008, whereby the claim application filed before the Tribunal was returned, when the District Judge at Meerut, refused to re-activate the suit proceedings at Meerut. These crucial aspects somehow appear to have not been appreciated by the learned Single Judge in the impugned judgment. In our view, the appellant has fulfilled the twin criteria of due diligence and good faith, as encapsulated in section 14 of the said Act, contrary to what has been held by the learned Single Judge. Accordingly, we are of the view that the impugned judgment cannot be sustained.

19. Accordingly, the impugned judgment is set aside. The interlocutory application being IA No.746/2010, is allowed. The parties shall appear before the learned Single Judge on 12.03.2012, for further proceedings in the matter."

20. The Learned Division Bench having setting aside the dismissal/rejection of the plaint had remanded the matter for trial. Thus, the question of limitation is no longer left open. The issue of limitation, which is one of the issues framed in the suit, came to be adjudicated as part of the application under Order VII Rule 10/11. The question of limitation, does not survive. Thus, the issue of limitation can no longer be agitated by the RFA 245/2017 Page 10 of 26 Railways.

21. Insofar as the question whether the Plaintiff is a bonafide passenger or not is concerned, the record of the RCT shows that in the said petition the Plaintiff disclosed as under:

"1. That on 20.10.87, I purchased a Ticket No.35356, for II class general category from Meerut Cantt for Ludhiana for the Frontier Mail and boarded the same from Meerut Cantt. The scheduled arrival time of the train was 09:40 P.M. but the train reached at Meerut Cantt. Railway Station at 10:00 P.M."

22. In his evidence, the Plaintiff also deposed that the said ticket got torn at the hospital at Muzaffarnagar when his pants were cut for treatment and could, therefore, not produce the same. In the cross examination of DW-1, a clear suggestion is put that there were five tickets which were sold at Meerut Cantt. to Ludhiana and only four were collected at Ludhiana. DW-1 had claimed that he had no knowledge of the same. There were several other facts which lead to the conclusion that the Plaintiff was a bonafide passenger which are enumerated below -

a) Injuries recorded on 20th October, 1987 at 11:45pm by the doctor who examined him at the Muzaffarnagar Civil Hospital. This records that he suffered two injuries and the 2nd injury was dangerous to his life.

He also records that the Plaintiff was brought to the hospital GRP CP No.4458, Mr. Chatrapal Singh of GRP, who was an employee of the railways.

b) The invoice of the artificial limb centre dated 4th November, 2001 where he got the prosthetic leg fixed along with the central RFA 245/2017 Page 11 of 26 government health scheme hospital at Meerut, which fixed the prosthetic leg.

c) A press clipping from Amar Ujala dated 9th May, 2001 titled as "rail yatra mein durghatna hone par muavaja kab?"

d) The discharge summary of Safdarjung Hospital, Delhi which records that the amputation of the left leg was done.

e) The certificate issued by the Safdarjung Hospital, which describes his disability as under:

"Disease and description of disability: Traumatic amputation Left above knee at laval of middle third of thigh."

f) The sanction for payment of Rs.5000/- issued by the Government of India dated 1st February, 1990, which reads as under:

"New Delhi, dated 1-2-90.

The General Manager, Northern Railway, Baroda House, New Delhi.

Sub:- Claim for compensation for the injuries sustained by Shri Tilak Raj Singh while boarding a moving train at Muzzaffarnagar station on 20.10.87.

Ref:- CCO, Northern Railway‟s d.o. No.19- MOZ-Accdt.-Claims-88 dated 4/5.7.89.

The sanction of the President is hereby accorded to the payment of Rs.5,000/- (Rupees Five Thousand only) as ex-gratia to Shri Tilak Raj Singh S/o Shri Harcharan Singh, 364, Prabhat Nagar, Meerut (U.P.), for leg injuries sustained by him while boarding a RFA 245/2017 Page 12 of 26 moving train at Muzaffarnagar Railway Station on 20.10.87 on humanitarian grounds.

The payment may please be arranged to the party under advice to this Ministry after securing an undertaking that no other monetary redress whatsoever, will be sought by him from the Railways on this account.

Sd/-

(Pramod Uniyal) Director Traffic Comml. (Claims) Railway Board"

23. All the above documents and exhibits go to show, without any doubt whatsoever, that the Plaintiff was severely injured in the accident that took place at the Muzaffarnagar station. Hence, the Plaintiff is a bonafide passenger, who suffered enormous damage to his physical and mental health.

24. The jurisdiction of the Trial Court cannot be disputed, inasmuch as the Northern Railways (HQ) is located in Delhi. The Plaintiff had already approached two other forums, who had rejected his claim on technical pleas. Under Section 19 & 20 of the CPC, the Trial Court had jurisdiction. The present suit is a suit for compensation for a civil wrong and the suit is maintainable in the local limits of the jurisdiction where the Defendant carries on business. As held earlier, the HQ of the Northern Railways is located in Delhi and hence the Trial Court is right in holding that it had jurisdiction.

25. A perusal of the evidence reveals that there has been a gross breach of duty by the Railways. Firstly, from the documents placed on record by the Plaintiff, it is clear that the number of bogies in the train were more than RFA 245/2017 Page 13 of 26 which could be accommodated at the platform of the Muzaffarnagar Railway Station. During the ingress and egress which was taking place, the train ought not to have moved. There ought to have been sufficient guards/staff at the station platform in order to caution the driver from moving, especially when several passengers were standing on the tracks in order to allow other passengers to alight at the station. The alighting passengers obviously would have faced difficulty in getting down from the train as 3 to 4 bogies were outside the platform. The Plaintiff was one of the passengers who had alighted and was waiting for the other passengers to get down from the bogies. In these circumstances, the movement of the train would have likely caused a panic amongst passengers i.e., those who were alighting as also those who were waiting on the tracks to get back on to the train. Thus, there is no doubt whatsoever that the Railways are liable for breach of duty as also thereafter for not providing the standard of care required. The immediate first aid was also not provided to the Plaintiff and it led to loss of blood and an injury which was life threatening, as is clear from the report of the Doctor who saw the Plaintiff at the Muzzafarnagar District Hospital.

26. Even after the suit was filed at Meerut, the Railways continued to take merely technical objections on jurisdiction resulting in the initial suit being rejected and the petition before the RCT being dismissed.

Common law remedy - whether barred?

27. It is the settled position in law that the remedy under common law is not barred in such cases. The Railways would be liable to pay compensation as determined under the Railways Act but also to tortious claims under RFA 245/2017 Page 14 of 26 common law. In P.A. Narayanan v. Union of India AIR 1998 SC 1659, the Supreme Court held as under:

"9............We are resting our case on the breach of common law duty of reasonable care, which lies upon all carriers including the railways. The standard of care is high and strict. It is not a case where the omission on the part of the railway officials can be said to be wholly unforeseen or beyond their control. Here there has been a complete dereliction of duty which resulted in a precious life been taken away, rendering the guarantee under Article 21 of the Constitution illusory. Had the deceased not pulled the alarm chain with a view to stop the train, the position might have been different. Liability in this case is fault based. Such a liability is not inconsistent with the scheme of the Railways Act of 1890 either (Refer Section 80 with advantage). The proof of a fault in this case is strong and Mr. Goswami has not rightly challenged it either. To relegate the appellant to approach the Railway Claims Tribunal or the Civil Court, as suggested by Mr. Goswami does not appear to us to be proper. More than 17 years have already gone by since the occurrence and, therefore, it appears appropriate to us to give a quietus to this litigation now."

28. In Rathi Menon v Union of India AIR 2001 SC 1333, the Supreme Court has held that the passenger has to exercise or elect to either file a claim under the Railways Act or to avail of other remedies. The Supreme Court observed:

"25. In this context we may look at Section 128(1) also. It says that the right of any person to claim compensation before the Claims Tribunal as indicated in Section 124 or 124A shall not affect the right of any such person to recover compensation payable under RFA 245/2017 Page 15 of 26 any other law for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect of the same accident. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124A of the Act. As he cannot avail himself of both the remedies he has to choose one between the two..........."

29. Though, the position is settled that a tortious action lies against the Railway despite the provision of the Railways Act, in the present case, this question may not even arise inasmuch as the incident took place prior to the enactment of the Railways Act, and the RCT has already rejected the petition of the Plaintiff for compensation under the same. Moreover, the Court is also not bound by the maximum cap as stipulated under the Railways Act in Section 124A, inasmuch as the determination of damages/compensation would be governed by the general law of torts and damages and not by the Railways Act.

Compensation - Quantum

30. Coming to the issue of compensation, the first and the foremost feature to be noticed is that the present is a tortious claim and not a claim under the Railways Act. When the incident took place, the Railways Act and the compensation mechanism under it had not yet come into force. This is the reason why the RCT had dismissed the petition of the Plaintiff. Thus, the compensation in the present case is to be assessed based on general principles of torts and compensation thereunder and not under the statutory RFA 245/2017 Page 16 of 26 mechanism.

31. Even going by the statutory mechanism, Section 124A of the Railways Act provides for compensation to any passenger who has been injured or killed due to an "untoward incident". Irrespective of whether the railways had committed a wrongful act, or was negligent, under the said statutory provision, compensation to the limit of Rs.8 lakhs has now been prescribed.

32. One of the first cases on how to determine compensation in cases of this nature, which is now treated as a landmark case is a judgement delivered by Justice M.J. Rao as a Single Judge of the Andhra Pradesh High Court in Bhagwan Das v. Mohd. Arif AIR 1988 AP 99 (hereinafter, „Bhagwan Das‟). In this case, the Court holds that pecuniary damages have to be evaluated on the basis of "full compensation". The said "full compensation" is to be assessed taking into account the following factors:

i. Loss of past earnings upto date of trial; ii. Prospective loss of earnings:

There are 3 methods for computing loss of future earnings: a. Interest method b. Lump sum method c. Multiplier method

33. The Court thereafter studied the basis of grant of compensation in various jurisdictions including UK, Australia and Canada, USA, Switzerland, and Netherlands and held that there are at least three methods of computing future earnings, namely, the interest method, lump sum method and the multiplier method. However, since there was lack of sufficient data to arrive at proper mathematical formulae, the Court held that RFA 245/2017 Page 17 of 26 in the case of injury, the manner of determining the multiplier would be as under:

"53. In cases of injuries, the relevant age for selecting the multiplier will be the age at the time of trial - for computing present value of future earnings because the loss up to trial can be otherwise computed directly. In cases of fatal accidents, the age at the time of death gives the relevant multiplier and this is subject to the further lowering of the same if the dependants (such as parents) are of advanced age."

34. This judgment in Bhagwan Das (supra) has found favour with the Supreme Court and has been repeatedly referred to as the leading judgment on compensation in tort cases. In Lata Wadhwa v. State of Bihar AIR (2001) 8 SCC 197 (hereinafter, „Lata Wadhwa‟), the Supreme Court applied the principles contained in Bhagwan Das (supra) and awarded compensation for death and injury cases for victims of an incident that took place on 3rd March, 1989 in a function organized by TISCO in Jamshedpur. Insofar as the injuries were concerned, in Lata Wadhwa (supra), the Supreme Court affirmed the report of Dr. Y.V. Chandrachud which took into account in the table for computing compensation, daily expenses, cost of medical treatment, expenses for physiotherapy, effect on marriage prospects, non-pecuniary loss and punitive damages.

35. Justice M.J. Rao, further expanded his view from the Andhra Pradesh High Court in Bhagwan Das (supra), as part of a Division Bench of this court in Rattan Lal Mehta v. Rajendra (1996) 36 DRJ 374 (hereinafter, „Rattan Lal‟). The various principles laid down are on the fundamental premise that compensation has to be full and fair. The court further held that the following aspects need to be borne in mind while computing non-

RFA 245/2017 Page 18 of 26

pecuniary damages which are:

i) No comparison is to be made with total awards in similar cases-

the court need not consider similar cases where awards have been made, as in each case the pecuniary and non-pecuniary damages could be different;

ii) Positive and negative factors- the factors that are considered in this head are the deprivation of good quality of life, infliction of pain and suffering, etc;

iii) Range or brackets for different levels of injuries- under this head, the injuries have to be classified as non-serious, less serious, ordinary or simple injury and the four major category under this head are (a) total wrecks (b) partial wrecks (c) loss of limb or eye (d) smaller injury for example wrist injury, broken arm, etc. The relevant findings of the Court are as under:

"27. Cases of injuries can be classified into four major categories (a) total wrecks, (b) partial wrecks,

(c) where limbs and eyes and other specific parts of the body are lost and (d) smaller injuries which cannot be specifically grouped e.g. comparing permanent 'wrist injury‟ with „loss of hand' or comparing a temporarily broken arm with loss of arm etc. Total wreck category comprise of cases of complete incapacity or work and virtually no enjoyment of life e.g. paralysis, severe brain damage causing insanity, multiple injuries leaving the victim cripple. The 'partial wreck' cases are cases where body is affected and not one set of limbs alone as in the third category. Cases of brain injury resulting in personality change and multiple injuries with grave disfigurement fall in the second category. The third category does not present anya difficulty in RFA 245/2017 Page 19 of 26 classification. The fourth category deals with minor injuries of limb.

28. In America, a leading Lawyer, Mr. Melvin M. Belli, had classified injuries into 11 categories - (1) Back, (2) Traumatic amputation of leg, (3) Paralysis, (4) Hand and arm off, (5) Death, (6) Multiple fractures, (7) Burns, (8) Personality change, (9) Blindness, (10) Brain injury, and (11) Occupational diseases. By 1967 awards (say) for blindness had risen to $ 930,000. (Munkman p 181-

182).

29. Conventional figures for non-pecuniary damages must keep pace with the times we live in. They must take into account inflation and advances in science, medicine and rehabilitation. In Walker vs. John Mclean & Sons (1980 ACJ 429 (CA) the Court found that while the value of Pound fell by 50% between 1957 and 1972 there was steeper fall between 1973 to 1978 by 50%. Kemp & Kemp point out that an award of 16,000 Pounds in 1879 for non pecuniary damages would be 500,000 Pounds in 1982."

iv) Claims under different heads that can be altered;

v) Separate itemization of non-pecuniary damage and pecuniary damages has to be done;

vi) Non-pecuniary damages need not be kept at lower level because pecuniary damages are high;

vii) No discrimination can be made between rich and poor in awarding of non-pecuniary damages.

36. Insofar as pecuniary damages are concerned, the Division Bench of this Court in Rattan Lal (supra) took into consideration the multiplier table appended to the Motor Vehicles Act, 1994 and held as under:

"44. Actuarial multipliers are based on mortality rates RFA 245/2017 Page 20 of 26 of different persons bearing different ages and are published by the Registrar General, Government of India. Census in our country are taken once in 10 years. In our view, there can be no difficulty in taking judicial notice of the fact that over the last 10 years medical facilities have increased considerably and that is why there is also a general increase in the survival rates or decrease in mortality rates. This position has been accepted by the Supreme Court. The multiplier published, in the Amending Act,1994 is based on the mortality or rather survival rates officially published for the period just before 1994. If a Court or Tribunal is considering the case of an accident which occurred prior to 15.11.94 when death rates were higher and survival rates lesser, then it is obvious that these multipliers in the statutory table are more favourable to the claimants if a latter multiplier based upon a higher survival rate of a latter date, immediately preceding 1994, is applied in respect of an accident which occured long before 15.11.94. This can be explained from another angle. If in fact a multiplier table had been published by Parliament (say) for 1984 then those multipliers would have been lesser than the multipliers now published in 1994. This is because survival rates in 1984 and earlier thereto were less than those in 1994. That is why we are of the view that even in regard to cases of accidents prior to 15.11.94 the date from which the Table in the Second Schedule brought in by the Amending Act,1994 has came into force, it will be open to the Courts/Tribunals to take the multiplier as per the said statutory table as relevant. (In fact, the objection or dispute must come from the tortfeasors or the insurance companies. Even if they do raise an objection, we may say from experience, that the defendants need not be apprehensive of a higher award on the basis of the 1994 statutory table, because differences in each multiplier over a period of 10 years will be higher only RFA 245/2017 Page 21 of 26 by small fractions ranging between 0.25 or 0.50 generally.)"

37. The Court also held that the difference between the age at the time of the injury and total life expectancy cannot be a multiplier. The maximum multiplier could be 18. The Court, further, held that the multiplier formula takes care even of inflation. The approach of the Court has to be that after awarding pecuniary and non-pecuniary damages, the interest award is considered @ 12%. In fact, the Division Bench observes as under:

"...The multipliers evolved in Bhagwandas‟ case compare very favourably with the statutory multiplier table published in the amendment to the Motor Vehicles Act 1994."

38. Insofar as the present case, being an action under common law, the formula laid down in Bhagwan Das (supra) would apply. The factors to be considered in this case are:

       a.      Loss of past earnings up to date of trial;
       b.      Prospective loss of earnings to be determined by the multiplier
               method;
       c.      Cost of medical treatment;
       d.      Sufferings and pain;
       e.      Loss of marriage prospects;
       f.      Loss of amenities of life;
       g.      Loss of expectation of life.


i)     Loss of past earnings up to date of trial and Prospective loss of

earnings to be determined by the multiplier method.

The accident occurred on 28th October, 1987. The Plaintiff was a student of RFA 245/2017 Page 22 of 26 law in Meerut but he could not pursue his studies. He claimed to be a very good cricket player but due to amputation, he was unable to play any sports or games. He admitted that he got a job in the Income Tax Department based on his disability certificate which was graded at 80%. His salary certificate from the Income Tax Department has not been placed on record, so there is no estimate that one can make as to whether he had pursued his law studies and had been practicing lawyer, what would have been his annual income. He is, however, bound to get retirement benefits having been a government employee. Thus, under the head of loss of future income, the Plaintiff may not be entitled to compensation. Thus, there is no requirement of applying the multiplier method. The Plaintiff having been able to obtain the job in the Income Tax Department on the basis of disability certificate, there is no loss of earnings.

ii) Cost of medical treatment The Plaintiff has claimed expenses for medical treatment, diet, nursing, etc., A perusal of all the bills that the Plaintiff has filed shows that he has in fact obtained an artificial limb itself for Rs.48,000/- and he has undergone treatment in various hospitals beginning from Muzzafarpur, Safdarjung Hospital and surgeries in Meerut. Thus, the actual expenditure which the Plaintiff has incurred could be quantified at Rs.2 lakhs minimum. This, combined with his conveyance charges between these cities, diet, nursing, medicines, etc., would an additional Rs.1 lakh. The bill of Rs.48,000/- has in fact been placed on record by the Plaintiff for the artificial limb. The various prescriptions and the discharge summaries of the hospitals have also been placed on record. The MLC clearly records that the second injury was a danger to life. Thus, the orthopaedic surgeries which he has undergone plus RFA 245/2017 Page 23 of 26 the artificial limb justify grant of Rs.3 lakhs towards the medical treatment.

iii) Sufferings and pain The Plaintiff was a young man when he met with the accident and the deprivation for him, in terms of taking away his youth, is totally incalculable. He was also a sports person who had to give up his likings for sports and playing sports altogether, as his leg itself amputed. Moreover, the Plaintiff could not have enjoyed a normal life without a leg which the other boys of his age could have enjoyed. His physical appearance has also been considerably damaged in view of the fact that he walks with a limp due to the prosthetic limb. Thus, under this head, he is entitled to damages quantified at Rs.3 lakhs.

iv) Loss of marriage prospects There is no evidence on record as to whether the Plaintiff is clearly married and has any progeny or not. In the absence of the same, it is difficult for the Court to estimate the loss of marriage prospects. Moreover, any loss of marriage prospects would have been well offset with the job which he has been able to obtain with the Income Tax Department under the disability category. Thus, the Court feels that no quantifiable compensation can be granted under this head.

v) Loss of amenities of life Leading a life without a limb is difficult. A person is deprived of a normal life including basic issues such as walking when he pleases, standing when he pleases, kind of transport that he uses, difficulty on travelling to distant places, etc. Thus, loss of a limb entitles the Plaintiff for compensation under this head. Under this head, the Plaintiff is entitled to at least Rs.3 lakhs of compensation under this head.

RFA 245/2017 Page 24 of 26

vi) Loss of expectation of life It has been almost 30 plus years since the time of the incident. The Plaintiff is living a healthy life as he was present in Court during the time of hearing. The loss of a limb does not appear to have had a negative impact on his life expectancy. Thus, he is not entitled to any compensation under this head.

39. Bhagwan Das (supra) also lays down the legal proposition that the overall damages granted have to be within what is claimed though there can be variance on the amounts granted under various heads. The Plaintiff was granted 6.6 lakhs by the Trial Court along with interest at 12%. However, this Court is of the view after an analysis of the law on the subject and the fact that the Plaintiff has been deprived of any compensation for over 30 years, that the compensation ought to be enhanced. The Plaintiff accordingly is granted a total compensation of Rs. 9 lakhs along with simple interest @ 8% for the entire period from filing of the suit before the District Judge Meerut till date of decree. The amount lying deposited in this Court to the tune of Rs. 5 lakhs along with accrued interest is directed to be released to the Plaintiff within a week. The Railways is directed to pay the remaining amount within eight weeks failing which interest on the decretal amount shall be payable @12% till date of payment.

40. The appeal is disposed of in the above terms.

41. The journey of this litigation has shown that the Plaintiff was entangled in a technical objection of jurisdiction both before the Civil Judge Meerut and the RCT. An organisation such as the Railways which is located across the length and breadth of this country ought not to delay cases of compensation in this manner. The whole purpose of granting compensation is defeated if the amounts do not become available to the victim RFA 245/2017 Page 25 of 26 immediately. The Railways ought to adopt a `Litigation policy' to deal with cases when tortuous claims for compensation are filed against them. In such cases, compulsory pre-litigation mediation can also be explored to bring about an early settlement. Such a step would reduce the costs for the Railways as also reduce the number of cases filed, and finally ensure timely and efficient payment of compensation. Copy of this order be sent to the Secretary, Ministry of Railways as also the Railway Board.

PRATHIBA M. SINGH JUDGE JUNE 01, 2018/dk RFA 245/2017 Page 26 of 26

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