Madhya Pradesh High Court
Rajendra vs Bishambhar Nath And Ors. on 8 January, 1986
Equivalent citations: 1(1986)ACC379
JUDGMENT K.L. Shrivastava, J.
1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 (for Short 'the Act') is directed against the award dated 8-11-1982 made by the Motor Accidents Claims Tribunal Dhar in Claim case No. 44 of 1980.
2. It is in dispute that at about 11.00 a.m. on 1-3-1980 when at Dhamnod Gourishankar as the servant of Bishambharnath was driving the latter's truck bearing Registration No. CPF 8466 Rajendra happened to be there. The said Rajendra alias Rajesh had fallen down on the road and has sustained injuries.
3. On the relevant date, the truck was insured with the New India Assurance Co. Indore.
4. According to the application under Section 110-A of the Act filed on 28-7-1980 Rajendra aged 15 years a student of VII class was on a bicycle going by the side of the road. The truck driver driving the truck negligently and at a high speed reached there from the opposite direction. He swerved it to the wrong side and dashed it against the said cyclist. As a result of the accident Rajendra fell down and became unconscious. He was taken to Dhamnod hospital and from there to MY. Hospital Indore. After four days he was admitted to Choithram hospital Indore, for 2 1/2 months and in Padidar Nursing Home, Indore for 4-5 days. Claim for compensation was laid as under :
Rs.
(i) Towards Medicine and fruits including future expenses. 50,000,00
(ii) Towards loss of studies. 20,000,00
(iii) Towards pain and suffering past and future. 10,00,000
(iv) Towards general damages. 75,000,00
(v) Towards loss of income to the father from the garden. 25,000,00
(vi) Towards pain and suffering to the parents. 20,000,00
Total 2,00,000,00
5. The claim was resisted by the owner, the driver and the insurer of the accident truck. It was stated that Rajendra had himself fallen down, he feared and there was no collision at all as alleged. The liability for compensation and its quantum were both denied
6. At the conclusion of the trial, the learned Tribunal held that there was collision between the truck and Rajendra aged 15 years and that the collision was occasioned as the truck was being driven negligently and at high speed. Towards damages sums were awarded as under :
Rs. N.P.
(i) Towards expenses incurred in the treatment. 12,047.30 422.50 12,469.80
(ii) Towards fees paid to Dr. Dube, Homoeopath. 300.00
(iii) Towards price of milk and fruits. 670.00
(iv) Towards loss of studies. 200.00
(v) Towards expenses on servant. 300.00
(vi) Towards pain and suffering. 3,000.00
(vii) Towards general damages. 7,000.00 Total 23,939.80
7. The learned Tribunal did not allow items of expenditure incurred subsequent to 28-7-1980 which is the date of the presentation of the petition. Some items of expenditure in connection with purchase of milk and fruits were also disallowed for want of bills and vouchers and so also the claim for fees to Dr. Dube.
8. Aggrieved by the award, the claimants has preferred this appeal contending that some items of expenditute were wrongly disallowed and that the amount awarded is too low.
9. The respondents have preferred cross-objection. According to them the finding of negligence is unwarranted and that the amount of compensation award is too excessive.
10. The points cropping up for consideration are as under:
(i) Whether the learned Tribunal erred in holding that Rajendra was hurt as a result of the collision between him and the truck due to the negligence of truck driver ?
(ii) Whether the amount of compensation awarded is too low and deserves to be enhanced
11. Point No. 1. The applicant Rajendra as PW 9 has stated that he was by the side of the road and as a result of the truck colliding against him, he was thrown down. The version of Wasudeo (PW 1) is that at the relevant time the truck was being driven at a speed of about 50 to 60 miles per hour and had dashed against the victim. Anandilal PW 2 has stated that the victim was by the side of the road and there was collision.
12. A driver owes a duty of care to avoid harm to the person and property of Ors. It is pertinent to point out that the truck driver has not been examined. In the circumstance we find that on the material on record dismissed above the learned Tribunal had correctly concluded that it was as a result of the negligence of the truck-driver that the collision had taken place and, therefore, the defaulting driver of the accident truck, vicariously his master the owner of the said truck and under the contract of insurance the insurer of the vehicle have rightly been held liable to the claim for compensation.
13. under Section 110-B of the Act, the Tribunal is required to make award determining the amount of compensation which appears to it to be just. As pointed out in Santosh Kumar's case 1982 MPWN 403 this has to be done after considering various factors. As the determination of compensation by any precise mathematical calculation is not possible in the very nature of things, it has rightly been remarked that in determination of compensation arithmetic is a good servant, but a bad master. In determining the amount of compensation due regard must, however be had to comparable cases so that there is some measure of predictability about the awards. It is well settled that unless the amount awarded is too inadequate or too excessive no interference in appeal is called for.
14. In a case of personal injury damages which are awarded fall under the following two heads ;
(a) for pecuniary loss ; and
(b) for non-pecuniary loss.
15. Balmukund PW 11 is the father of the claimant Rajendra alias Rajesh. In his deposition dated 31-10-1981 he has stated that on information about the accident he had reached the spot and had found that Rajendra had injuries on his person and was lying unconscious. We have it in the evidence of Balmukund that for four days Rajendra was admitted in the M.Y. Hospital Indore and had not regained consciousness. He has further stated that Rajendra was then removed to Choithram Hospital, Indore and had remained admitted there for three months and the room rent was Rs. 35/- per day. According to him he has spent about Rs. 40,000/- in the medical treatment of Rajendra. He has also stated that Dr. A.C. Jain and Dr. Sojatia had subsequently seen the patient and he is under the treatment of Dr. D.K. Dube PW 8.
16. The testimony of Dr. Mrs. Shobha Chamania PW 13 recorded on 28-11-1981 is that between 5-3-1980 to 12-5-1980 Rajendra was an Indoor patient in Choithram Hospital, lndore and was under the treatment of Dr. T. Suryarao who later went abroad. According to her the patient had head injury and pus used to pass through his ear. We also have in her deposition that when discharged the patient used to get fever and he was unconscious and used to be fed through pipe and for passing urine another tube had been attached. In paragraph 8 of her deposition the witness has stated that during treatment, the patient used to regain consciousness and also used to talk.
17. Then we have the evidence of Dr. C.S. Chamania PW 15. He has stated that skiagram taken on 21-11-1981 revealed that there were stones in the left kidney of Rajendra. He has further stated that between 2-12-1981 and 18-12-1981 he had remained admitted in the Choithram Hospital, lndore and was operated upon on 7-12-1981 and his left kidney which was damaged and had stopped working was removed. According to the doctor when a patient is unconscious for a long period and is bed ridden, bones are not in use and this results in calcium from the bones passing through urine and there is the tendency of stone formation. He has also stated that due to patient's unconsciousness urine is made to pass through cathetar and this also results in infection and stone formation and it was a found that in the case of the claimant infection was the cause of stone formation.
18. Llearned Counsel for the respondent contends that the accident in question had taken place on 1-3-1980 and the loss of left kidney which took place long thereafter on 7-12-1981 and thus there is no nexus between the two. The contention is clearly devoid of merit. On a combined reading of the evidence of Dr. Shobha Chimania and Dr. C.S. Chimania and keeping in view the definition of the term 'proved' as given in Section 3 of the Evidence Act which does not insist on absolute certainty, the clear conclusion is that it stands proved that the loss the left kidney was due to the accident.
19. The testimony dated 30-10-1981 of Dr. D.K. Dube PW 8 Dhar is that he is a Science graduate and is practising as a Homoeopath right from 1974. According to him he first saw the claimant on 24-5-1980 and found that he was weak and unconscious, had fever and was being kept on milk and fruit juice. According to the doctor from May 1980, the claimant is still under his treatment. According to him he had been visiting the patient at Dhamnod at intervals and has mostly been paid @ Rs. 100/- per visit. According to him he has made about 19 visits and he also charges @ Rs. 1/-per day for medicine. The testimony of the doctor is that it was after three months of his treatment that the patient regained full consciousness and has normal power of speech and hearing and his memory is also normal.
20. There is no credible evidence to establish that the claimant has suffered any permanent disability as such. The claimant as PW 9 has stated that he has to depend on his mother for his daily routine.
21. From the evidence of the claimant Rajendra PW 9 we find that from his very childhood he is of weak constitution and that his father used to say that on coming of age (the claimant) would be able to manage his agriculture. The testimony of Balmukund is that he has 30 to 35 'big has' of agricultural land and has two servants. His version is that for three months he had to engage another servant on Rs. 100/- per month as he himself had become busy in connection with the medical treatment of the claimant.
22. From the evidence referred to above, it is clear that the claimant Rajendra has been required to take treatment for a long period. He had remained unconscious for a long period and had to be kept on milk and fruit juice. Therefore the evidence adduced even without bills and vouchers, has to be broadly assessed in the context of the aforesaid circumstances. A perusal of the claim petition shows that compensation has also been claimed for expenses likely to be incurred in future. The claimant was still under treatment during the trial. In the circumstances the learned Tribunal was clearly in error in disallowing claims towards expenses relating to dates subsequent to the filing of the application for compensation. It has also to be remembered that during the claimant's admission in Chotiram Hospital Indore expenditure had to be incurred for the persons attending on him.
23. From the evidence of Balmukund PW 10 we gather that his son, the claimant was not good at studies. In all probability in days ahead the claimant would take to agriculture. As there is improvement, it is very likely that in future, the claimant would become nearly normal but the period he would require for this is in the womb of uncertainty. He has already suffered for a long period and the end of his suffering is still not in sight. He is only aged 15 years and does stand deprived of his left kidney. Compensation to a living person for his suffering and disablement have to be substantial and not merely taken. In this connection the decision in State of U.P. v. Vinod Kumar AIR 1984 344 All may usefully be perused.
24. The learned Tribunal has awarded Rs. 12,469.80 P. as expenses towards medical treatment. On acareful consideration of the facts and circumstances of the case, we are of the view that towards pecuniary damages amount of Rs. 20,000/- would constitute just compensation.
25. Llearned Counsel for the appellant urged that in assessment of damages in cases of injuries, the age factor of the victim and the impact of injuries sustained by him have to be kept in mind. In support of his submission for enhancement of compensation he placed reliance on the decision in National Insurance Co. Ltd. v. Ramanbhai 1983 ACJ 779. In this decision a boy aged 15 years had sustained fracture of pelvis and rupture of urethra. Natural passage for urine was totally closed and he was required to pull on with supra pubic catheter. He was also rendered permanently unfit to enjoy sex and to do labourious work. The Tribunal had awarded Rs. 45,000/- under the head 'pain and suffering, shock, loss of amenities and 'enjoyment of life.' In appeal, the High Court observing that damages in such cases have to be substantially higher than in other cases, had 'enhanced the amount to Rs. 75,000/-. With reference to an earlier decision it was pointed out that there is a great risk of duplication in segregating and separately assessing compensation for pain and suffering and loss of amenities and enjoyment following out of each injury. Reliance was also placed on the decision in State of Gujarat v. Dushyantbhai 1984 AGJ 560 but it is of not much help as therein there was 75% permanent disability. The decision in Baldeo Krishna's case 1984 ACJ 163 is also clearly distinguishable on facts.
26. The position of the claimant is not so worse as that of the claimant Ramanbhai's case (supra). In the decision in S.D. Balaji's case 1985 ACJ 150 also the claimants condition was worse and general damages to the tune of Rs. 30,000/- were allowed. In the decision in Gyan Prakash v. Baboolah 1985 ACJ 661 the victim was a bank manager. He had sustained fracture of his right hand. He was hospitalized for 46 days and was under treatment for more than two years. The injury had resulted in the reshaping of his hand and reduction in strength by 40%. He could not lift weight, comb, hair, play badminton and drive car. There was impairment in writing also. Award of general damages to the tune of Rs. 30,500/- was maintained.
27. It is true that a victim of an accident must not be permitted to make a fortune out of his misfortune. At the same time is has to be ensured that his pain and suffering are not underestimated. The fall in the purchasing power of money has also to be kept in mind in determining the amount of compensation which must be just on the totality of the facts and circumstances of the case. As already pointed out, the claimant stands deprived of his left kidney. Compensation awarded by the Tribunal is in the circumstances clearly inadequate. On a careful consideration of the material on records. We are of the view that in the case of the appellant an amount of Rs. 28,000/- as general damages would constitute just compensation.
28. In the result, the amount of compensation determined by the learned Tribunal is increased to Rs. 48,000/-. The amount shall carry interest at the rate of Rs. 9% per annum from the date of the application under Section 110-A of the Act till realisation. The award shall stand accordingly modified. The respondents shall bear their own costs and shall pay to the appellant the latter's costs in this Court. Counsel's fee Rs. 300/- only if certified.