Punjab-Haryana High Court
Raj Kumar vs Sh. Swaran Singh And Ors. on 27 May, 1998
Equivalent citations: 2000ACJ174, (1998)120PLR198
JUDGMENT V.K. Jhanji, J.
1. This is claimant's first appeal directed against the award of the Motor Accident Claims Tribunal, Gurdaspur, whereby claimant has been awarded compensation of Rs. 70,000/- against the respondents jointly and severally and he has also been held entitled to interest at the rate of 12% per annum from the date of claim application till actual realisation.
2. According to the claimant, namely, Raj Kumar, he was sitting on the pillion of scooter No. PCW-1141 which was being driven by Mohinder Pal. They were going to village Taragarh from Pathankot. At about 3.30 P.M. when they crossed Kath Bridge and reached tank chowk behind Jalandhar roadside, bus bearing registration No. PJG-7389 of Pepsu Road Transport, Faridkot Depot, being driven by Swaran Singh, respondent No. 1 came at a very high speed from Jalandhar Road. The driver took wrong turn towards Pathankot road side thereby violating the traffic rules. The driver of the bus did not give any indication for taking turn and hit the bus against the scooter. According to the claimant, accident took place due to rash and reckless driving of bus by Swaran Singh, respondent. Injured-claimant was admitted in Civil Hospital, Pathankot then shifted to Christian Medical College and Hospital, Ludhiana on 4.5.1986, and was discharged from the said hospital on 1.6.1988. As a result of accident, claimant suffered 85 per cent disability. Claimant lodged a claim for Rs. 7,51,835.25 P. Claimant alleged that he was partner of firm M/s Joginder Pal Gupta, Sujanpur, a private contractor firm. Claimant possessed a sound physique and used to work round the clock, but as a result of accident, his left leg above the knee was amputated and thus, claimant has become permanently disabled. The amount claimed was towards treatment, diet and transport and pecuniary loss.
3. Claim was contested by the respondents. Two sets of written statement were filed; one by the driver and the second one by respondents 2 and 3. Respondent No. 1, driver, in his written statement denied his involvement in the accident. He alleged that claimant and two other pillion riders were dead drunk and they were already lying in an injured condition near Kath bridge crossing when the bus reached there. He alleged that being a good citizen, he picked up the claimant with the help of some passengers and the claimant was removed to Civil Hospital, Pathankot. Respondents 2 and 3 pleaded that there was a sharp curve for going to Pathankot near Kath bridge. The driver of the bus slowed down the speed of the bus, but driver of the motor cycle was dead drunk and so were the pillion riders and hit the motor cycle on the rear bumper of the bus and suffered injuries. They denied that. accident took place due to rash and negligent driving of bus driver. The Tribunal framed the following issues :-
(1) Whether the applicant sustained injuries on 3.5.1988 as a result of accident with bus No. PJG-7389 ? OPA. (2) Whether the accident occurred as a result of rash and negligent driving of bus No. PJG-7389 by respondent No. 1 ? OPA. (3) Whether the applicant is entitled to compensation if so to what extent and from whom? OPA. (4) Relief."
4. On the basis of evidence led by the parties, Motor Accident Claims Tribunal came to the conclusion that accident took place due to rash and negligent driving by bus driver, Swaran Singh, on account of which claimant received injuries and became permanently disabled. Accordingly, issue No. 2 was decided in favour of claimant. Under issue No. 1, it was held that claimant sustained injuries on 3.5.1988 as a result of accident with bus No. PJG-7389. Under issue No. 3, the Tribunal assessed compensation as under :-
i) Medical expenses Rs. 10,000.00
ii) Expenses on transport Rs. 1,000.00
iii) Expenses on family attendant Rs. 1,000.00
iv) Compensation for pain Rs. 5,000.00
and suffering.
v) Compensation for 85% disability Rs. 8,000.00
vi) Compensation for loss of
earning capacity. Rs. 45,000.00
Rs. 70,000.00
5. Respondents were made jointly and severally liable to pay the amount. Claimant was also held entitled to interest at the rate of 12% p.a. on the amount of Rs. 70,000/- from the date of application till actual realisation.
6. Respondents have not filed any appeal against the finding of the Tribunal recorded against them in regard to claimant's sustaining injuries as a result of accident occurred due to rash and negligent driving of bus No. PJG-7389 being driven by Swaran Singh, respondent No. 1. The controversy in this appeal is only with regard to quantum of compensation payable to the claimant.
7. Ms. Deepali Puri, Advocate, appearing on behalf of claimants has contended that claimant, Raj Kumar suffered 85 per cent permanent disability, but compensation awarded by the Tribunal under different heads is not adequate. Counsel contended that amount of Rs. 5,000/- awarded on account of pain and suffering is too meagre and at least a sum of Rs. 1,00,000/- ought to have been awarded on this score. She further contended that as per medical evidence led in this case, expenses awarded towards transport are too meagre, and while awarding this amount the Tribunal failed to take into account the expenses which claimant has to incur throughout his life on this account. She also contended that on all heads, claimant was entitled to at least a sum of Rs. 7,50,000/-.
8. Claimant in order to prove that he suffered 85 per cent disability on account of accident, examined Dr. Pardeep Kumar Gupta, Senior Lecturer, Department of Orthopaedics, C.M.C., Ludhiana, who on the basis of record stated that injured remained admitted in hospital from 4.5.1988 to 1.6.1988. He remained under the treatment of Dr. Bhalla, Orthopaedic Surgeon. Dr. Pardeep Kumar associated in the treatment. Injured had compound fracture of both bones left leg with vascular injury. He was operated upon for below knee amputation whereafter the revision amputation was done above knee. Injured was discharged on 1.6.1988 and disability certificate was given by Dr. Arvin Grewal. As per the certificate, disability was determined as 85 per cent. Dr. Pardeep Kumar in his cross examination stated that immediate operation could not be performed because of infection. The first operation was 3 inches below the knee, and revision amputation was done on 26.5.1988 above the knee. AW-6, Dr. H.S. Bajwa, Medical Officer, Civil Hospital, Gurdaspur, examined claimant on the orders of Civil Surgeon, Gurdaspur on 8.3.1990. Dr. Bajwa in his statement stated that injured was having amputation through midthigh left lower limb. His disability is 85% and permanent. He proved disability certificate, Ex.A-6, which was signed by him and Dr. Sawinder Singh, Asstt. Civil Surgeon, Gurdaspur. He also stated that artificial limb can be used by the injured and with the aid of artificial limb he can walk but cannot perform normal duties and drive a scooter. In order to prove the loss of earning capacity, claimant stated that he started his career as a private contractor, but later on become partner of firm, M/s Joginderpal Gupta. The firm took various contracts and earned good profits. He stated that as a partner, he used to work round the clock but because of amputation of his left leg above knee, he has become permanently disabled and is not in a position to carry on busi- ness as a contractor and so, he claimed that since his disability is 100 per cent, he would not be able to earn anything.
9. While assessing compensation in cases of disablement by virtue of loss of limb or any permanent impairment, it is to be kept in mind that amount of compensation must be reasonable and must be assessed with moderation and regard must be had to awards made in comparable cases. The amount to be awarded has to be on main two heads, namely, (i) personal loss and (ii) Economic loss. Under the head of Personal Loss, damages for pain and suffering, loss of amenities, personal inconvenience and discomfiture, social discomfiture or loss of consciousness would be included. Pecuniary or economic loss would include damages in respect of pecuniary loss, past and future, such as loss of earning, medical expenses and cost of nursing, care as also loss of earning capacity. In disablement cases, compensation awarded is normally higher that in cases of death. The bodily injury leads to deprivation. The deprivation may bring with it loss of earning or earning capacity; expenses of having to pay others for what otherwise he would do for himself and loss of enjoyment of life, or a diminution in full pleasure of life. It has been held by this Court in various judgments that amount granted has to be substantial and not token.
10. In P.S. Bhatnagar v. State of Punjab and Ors., (1977)79 P.L.R. 300, Division Bench of this Court held that "the broad principle which should govern the assessment of damages in cases such as this is that the Tribunal should award to injured party such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. The principle is some times referred to as the principle of restitution integrum; but is manifest that no award of money can possibly compensate a man for such grievous injuries as the appellant in this case has suffered. The principle, therefore, affords a little guidance in the assessment of damages for the pain and suffering undergone and for the impairment which results from the injuries and in fixing such damages the Judge can do no more than an endeavour to arrive at a fair estimate taking into account all the relevant considerations. There can be no gain saying that money cannot renew a shattered human frame. Still, the law has said that pain and suffering is a head of damage for which monetary compensation can be awarded and so the Court do the best it can to be of assistance to it."
11. In Dr. M.L. Sharma v. The State of Haryana and Anr., (1991-2)100 P.L.R. 308, learned Single Judge of this Court held that "while awarding compensation in injury case, one should keep in mind that amount awarded to the claimant is just. Pecuniary 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 set back? Have the chances of rising in the service career or otherwise been retarted, 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?" In this case, injured was aged 40 years and had suffered 15 per cent disability because of shortening of his leg. Tribunal therein awarded Rs. 62,000/- towards compensation, but the learned judge in that case enhanced it to Rs. 2,25,000/-.
12. In State of Punjab and Ors. v. A.V. Unnikrishanan and Ors., (1993-2)104 P.L.R. 208, injured was 27 years of age as a result of accident, his right arm was amputated. Tribunal therein awarded total compensation of Rs. 2,84,000/- under various heads and the said award of Tribunal was upheld by this Court.
13. In Dr. B.D. Bagri v. Daulat Ram and Ors., (1997-3)117 P.L.R. 444, injured was 37 years of age and in the accident, his right leg was amputated. He continued to be employed by the Government, but since his future prospects in government had been hampered, he was awarded Rs. 1,00,000/- towards medical expenses and Rs. 1,00,000/- for loss of happy life, shock, mental agony and pain and suffering.
14. In Harbhagwant Singh Dhillon v. Haryana Roadways and Ors., 1995 A.C.J. 1278, injured was 38 years of age and had suffered permanent disability of 80 per cent because of amputation of his right arm. Tribunal awarded Rs. 2,18,460/- as compensation, but the same was enhanced to Rs. 3,19,460/- by this Court.
15. At the time of accident, claimant was 35 years of age and was supporting his family consisting of his wife and two children. Claimant was a partner in firm, M/s Joginderpal Gupta dealing in construction work. Claimant had 25 per cent share in the partnership. In order to show that he had good income from the construction business, claimant has proved on record income-tax returns for the assessment years 1980-81 to 1989-90. For the assessment year 1988-89, firm showed a total income of Rs. 1,73,480/-, meaning thereby that claimant had an income of nearly Rs. 43,000/- in the year he met with an accident. From the income-tax record, it appears that claimant had good prospects in the business, but on account of amputation of left leg and on account of suffering serious disability to the extent, of 85 per cent, his earning capacity has been lost. The amount of Rs. 45,000/- awarded to the claimant by the learned Tribunal towards loss of earning capacity is most inadequate. In my view, claimant deserves to be granted a sum of Rs. 4,00,000/- on all counts, i.e. medical expenses, special diet, costs of nursing or attendant, loss of earning upto the date of trial, loss of earning capacity in future, mental and physical shock, pain and suffering already suffered by the claimant or likely to be suffered, loss of enjoyment and costs for obtaining artificial limb.
16. Accordingly, appeal is allowed and the award of the Tribunal is modified and compensation enhanced to Rs. 4,00,000/-. Appellant shall also be entitled to interest at the rate of 15 per cent on the enhanced amount from the date of claim application till realisation of the amount. Since despite service there has been no representation on behalf of respondents, appellant shall not be entitled to any costs of this appeal.