Rajasthan High Court - Jaipur
Smt. Nirmala Pareek vs Bhagwana Ram And Ors. on 9 May, 2001
Equivalent citations: III(2002)ACC607, 2002(2)WLC302
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT H.R. Panwar, J.
1. This appeal is directed against the judgment and award dated 9.2.1995 passed by the Motor Accident Claims Tribunal, Bhilwara (hereinafter referred to as 'the Tribunal' in Claim Case No. 719/1992 (152/1992) by which the Tribunal awarded compensation for a sum of Rs. 99,000/- in favour of the appellant and against the respondents.
2. Being aggrieved and dissatisfied by the quantum of compensation awarded, the appellant filed this appeal seeking enhancement of the Award.
3. Briefly stated the facts, which are necessary to dispose of this appeal are that on 3.9.1991, the appellant was travelling in a Bus No. RNE 4833 belonging to Rajasthan State Road Transport Corporation (hereinafter referred to as 'the Corporation') from Chittorgarh to Bhilwara. At about 8.15 a.m. while the bus was at about 8-10 kms. away from Bhilwara and reached in front of Rajshree and Amol Synthetics, at that time, a truck No. RJ 14/G-0678 came from opposite direction driven rashly and negligently by its driver respondent No. 2 Deen Singh suddenly came from wrong side of the road and collided with the aforesaid bus. After having dashed against the bus, the truck thereafter covered a distance of 115 ft. and dashed against the tree. Due to this accident, the appellant who was passenger of the bus sustained severe injuries on her person. The injuries resulted in the compound fracture of right leg, Tibia and Fibula bones and fracture of left shaft femur. She was immediately taken to Government Hospital, Bhilwara where she remained admitted and under treatment for three days and thereafter she was referred to a private hospital, Ahmedabad (Gujarat). The nature of treatment, its duration, expenses incurred and other damages resulted due to accident were claimed as compensation. In all the appellant laid claim for a sum of Rs. 4,23,800/- before the Tribunal.
4. Respondent Nos. 1 and 3 filed their respective written statements. On the pleadings of the parties, the Tribunal framed as many as four issues and tried the case. The Tribunal reached to the conclusion that the accident was result of driving of the truck rashly and negligently by its driver respondent No. 2 and, as such, the issue of negligence was decided in favour of the appellant and against the respondents. Issue Nos. 2 and 3 were decided against the respondents. The finding on issue Nos. 1, 2 and 3 are not under challenge, as such, becomes final. While deciding issue No. 4, the Tribunal computed and awarded compensation of Rs. 99,000/- along with interest in favour of the appellant and against the respondents.
5.1 have heard learned Counsels for the parties.
6. Perused the record, scrutinised and evaluated the evidence on record.
7. It is contended by learned Counsel Mr. Surendra Singh Jodha appearing on behalf of the appellant that the Tribunal fell in error while computing the compensation which resulted in awarding inadequate compensation. He contended that the compensation awarded by the Tribunal is too low and do not commensurate with that of the injuries sustained which resulted in permanent disablement to the extent of 25 percent. He also contended that the appellant sustained severe injuries on both the legs and other parts of the body, for which, she had undergone for long treatment at Bhilwara, and Ahmedabad. She remained on leave during her treatment for a period of 290 days. He further contended that at the time of accident, the appellant's age was 39 years. She underwent as many as three operations at Sheth Vadilal Sarabhai General Hospital, Ahmedabad. At the relevant time, she was holding the post of Sessional Education Officer in the Education Department of State Government and her monthly income was Rs. 3,420/-. He further contended that the appellant is entitled for compensation for loss of income for the leave period and for future, expenses on treatment nourishment, attendants and conveyance, etc. as claimed. He further contended that the injuries resulted in permanent disablement to the extent of 25 per cent and, therefore, the appellant is entitled for pecuniary and non-pecuniary damages.
8. Learned Counsel for the respondents supported the judgment and award impugned and contended that the compensation awarded by the Tribunal is just compensation and cannot be termed to be highly inadequate.
9. It as specifically pleaded and proved by the appellant that the injuries sustained due to the aforesaid accident, resulted in fracture of her right leg, tibia and fibula bones and shaft femur of left leg bones. Thus, it has been established that the injuries resulted in as many as three the fractures. She remained admitted at Mahatma Gandhi Hospital, Bhilwara for two days and thereafter she was advised by the doctor at Bhilwara for higher degree of treatment at Ahmedabad. She along with her husband, brother-in-law and sister-in-law travelled from Bhilwara to Ahmedabad by Pinky Travels. She was admitted at Sheth Vadilal Sarabhai General Hospital, Ahmedabad where she underwent operation of her right leg on 7.9.1991 and on 18.9.1991, she further underwent the second operation and was discharged on 2.10.1991. After having inserted steel rod in her left leg, plaster on her both the legs were applied. However, looking to the compound fractures of various bones, she was advised by the doctor at Ahmedabad to take complete bed rest and, therefore, she along with aforesaid three attendants remained at Ahmedabad tIII28.10.1991. Because of heavy loss of blood due to injuries, seven Units of blood was transfused in her body. She was again admitted at Sheth Vadilal Sarabhai General Hospital, Ahmedabad on 21.10.1991 and was discharged on 26.10.1991. On 28.10.1991, after having been discharged from the hospital, she along with the aforesaid three attendants came to Bhilwara by an Ambulance as she was advised to travel in Ambulance because in one of her legs, a steel rod was inserted, both the legs were under plaster. According to the medical advice, she was prohibited to allow the movement of fractured legs. They remained at Bhilwara till 16.11.1991. On 17.11.1991 she along with three attendants and her brother Shiv Kumar came from Bhilwara to Chittorgarh. On 19.11.1991, they came back to Bhilwara and on 24.11.1991, she along with the aforesaid persons again went to Ahmedabad from Bhilwara in a taxi car of Pinky Travels. She was again admitted in Sheth Vadilal Sarabhai General Hospital, Ahmedabad and after having reduced size of the plaster, she was discharged from hospital with the advice of complete bed rest. Accordingly, they came back to Bhilwara and she remained under complete rest upto 18.1.1992. On 19.1.1992 she along with the aforesaid persons again went to Ahmedabad in a Taxi Car of Pinky Travels and was examined at Sheth Vadilal Sarabhai General Hospital, Ahmedabad. She was asked to go for review/further checkup after 15 days and, therefore, she along with the aforesaid persons came to Bhilwara by taxi car. Again on 19.2.1992, she along with the other attendants went to Ahmedabad, where she was admitted on 20.2.1992 at the aforesaid hospital and on being examined, it was found that union of bones of right leg was in disorder, therefore, she was again admitted on 22.2.1992 at the aforesaid hospital and by operation, a steel rod was inserted in her leg. She remained there till 8.3.1992. She was discharged from hospital on 8.3.1992. Thereafter she along with the aforesaid persons came back to Bhilwara. On 6.4.1992, she along with other attendants again went to Ahmedabad from Bhilwara. Her plaster was removed and she was discharged with the advice to take rest. She also stated that on the date of making statement before the learned Tribunal i.e. 3.5.1994 as many as three plates and 16 screws were affixed on the femur bone and steel rod was remained inserted. She further stated that according to the advice of the doctor, the plates, screws and steel rod were required to be removed for which she has to further undergo an operation, else it may result into infection. She stated she underwent operations thrice at Ahmedabad. On each count, she has paid Rs. 5,000/- as operation fee to the doctor, as such, she has incurred Rs. 15,000/- for the operations, which she underwent at Ahmedabad. She also stated that she has incurred Rs. 35,000/- on account of treatment expenses although she could file treatment bills for Rs. 15,000/-since she and her attendants could not procure the bills and did not take care to see that every medicine is purchased by bill. She further stated that because of frequent movement from Chittorgarh to Bhilwara and Ahmedabad, rest of medicine bills appear to have been either could not be collected or misplaced by her attendants. She also stated that a sum of Rs. 20,000/- has been incurred on account of expenses on attendants. She further stated that her husband, brother-in-law and sister-in-law, all were Government employees and during the period they remained along with her as attendants at various places, they were required to be on leave, as such, it resulted in loss of income for their leave period. Despite prolonged treatment, her right leg resulted in permanent shortening by 2.00 cms. and, therefore, it has also resulted in permanent limping. She has also stated that she has suffered terrible physical pain and mental agony and unable to move properly. She has placed on record various documents including injury report Ex. 3, X-ray Report Ex. 4, Salary Certificate Ex. 7, Certificate of permanent disablement Ex. 8, Discharged Ticket Ex. 9, Salary Certificate Ex. 10, Treatment Record Exs. 11 to 148, etc. The evidence of claimant remained unrebutted, inasmuch as the respondents did not lead any evidence in rebuttal.
10. It is settled law that while computing compensation payable to the victim of road accident, the damages have to be assessed 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 the non-pecuniary damages are those which are incapable of being assessed by Arithmetical calculations. While computing pecuniary and special damages, the learned Tribunal awarded the following compensation:
1.
Loss of income during the period of treatment Rs.
17,000/-
2. Treatment Expenses Rs.
26,000/-
3. Conveyance Charges Rs.
2,000/-
4. Operation Fee Rs.
5,000/-
5. Expenses on Nourishment Diet Rs.
4,000/-
6. Expenses on Attendants Rs.
13,000/-
7. Expenses for future treatment Rs.
5,000/-
8. For pain and suffering Rs.
12,000/-
9. For reduction in working capacity Total Rs.
15,000/-
Rs.
94,000/-
11. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors. , Their Lordships of Hon'ble Supreme Court observed as under:
Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to' be assessed separately as pecuniary damages and special damages. Pecuniary damage 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 earning of profit upto the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include, (i) damages for 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 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.
12. Their Lordships further observed that:
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 be compensate such injury 'so far as money can compensate' because it is impossible to equate the money with the human sufferings or personal deprivation. Money cannot renew a broken and shattered physical frame.
13. Their Lordships further observed that:
When compensation is to be awarded for pain and suffering and loss of amenities of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration.
14. In the instant case, it has been fully established that the appellant sustained fractures on her both the legs and remained hospitalised and under treatment though intermittently for a period more than 7 months which is established from the fact that she remained on leave for 290 days i.e. more than 7 months and even after this also, she remained under treatment. Keeping in view the nature of injuries, she is further required to undergo treatment for future as it is established from her unrebutted testimony that she would further require to undergo operation of her factured leg bones. It is also established that during the period of her hospitalisation and treatment, she has suffered terrible physical pain and mental agony as she was totally immobilised for this period and even for future. The injuries sustained on her both the legs which ultimately resulted in permanent disablement and, therefore, she may have to further suffer physical pain and mental agony for rest of span of her life. She has suffered loss of amenities of life on account of permanent disablement, she is not able to sit, move, walk, run, climb and do other activities. Besides this, the injuries suffered on her legs, which resulted in shortening of her leg permanently by 2 cms and, as such, resulted in permanent limping. Not only this, because of injuries suffered, it would cause inconvenience in every affairs of life and she would face hardship, discomfort, disappointment, frustration and mental stress in her life. The appellant being married lady of young age has suffered adversely marital life and for the period, she remained hospitalised and under treatment and it is also likely that on account of injuries she may further undergo similar sufferings. It has also been established the income, occupation and loss suffered by her for the period of treatment including loss of salary for the present and may suffer for future. Although she has been allowed to continue in service, but uncertainty will always remain with her. In view of the fact that she is disabled lady and may not be able to discharge her duties as normal employee and it may adversely affect on her service career.
Taking into account the totality of facts and circumstances of this case as noticed above, in my considered opinion, the appellant is entitled for the following compensation:
1.
Loss of income during the period of treatment Rs.
23,940/-
2. Treatment Expenses Rs.
25,000/-
3. Conveyance Charges Rs.
5,000/-
4. Operation Fee Rs.
10,000/-
5. Expenses on Nourishment Rs.
4,000/-
6. Expenses on Attendants Rs.
13,000/-
7. Future treatment Rs.
10,000/-
8. Pain and suffering Rs.
40,000/-
9. Reduction in working capacity Total Rs.
50,000/-
Rs.
1,80,940/-
Rs.
1,80,000/-
15. In view of aforesaid discussion, this appeal is allowed to the extent indicated above and the compensation awarded by the learned Tribunal is enhanced from Rs. 99,000/- to Rs. 1,80,000/-. This amount shall carry interest at the rate and from the date as allowed by the learned Tribunal No order as to costs.