Himachal Pradesh High Court
Inder Singh vs Himachal Road Transport Corporation on 3 December, 1992
Equivalent citations: 1993ACJ620
JUDGMENT
Bhawani Singh, Actg. C.J.
1. This appeal is directed against the award of Motor Accidents Claims Tribunal, Shimla, dated 21st, February, 1991, whereby claim for compensation under Section 166 of the Motor Vehicles Act, 1988, has been dismissed. The appeal comes to this Court in the following circumstances:
2. The claimant Inder Singh was travelling in bus No. HPS 4387, belonging to Himachal Road Transport Corporation on 8th September, 1989. The bus met with an accident at Sainj in Teshil Theog. As a result of this accident, the claimant sustained injuries to the lower limbs of his body and became totally paralytic. The claimant asserted that the accident took place due to rash and negligent driving of the vehicle by the driver. He sought compensation to the tune of Rs. 10,00,000/- on various counts. This petition was resisted by the respondent. It has been stated that the claimant had already been paid Rs. 500/- by way of interim relief and in case it is found that the claimant is entitled to compensation, this amount should be deducted from the compensation. On merits, the age, the income, the injuries sustained by the claimant, expenses incurred on treatment, etc., have been denied. Besides, it has been stated that the claim is too excessive.
3. On the pleadings of the parties, the Tribunal framed the following issues:
(1) Whether the petitioner has suffered injuries on account of rash and negligent driving of vehicle No. HPS 4387 owned by the respondent? OPP.
(2) If issue No. 1 is proved in affirmative to what amount the claimant is entitled and from whom? OPP.
(3) Relief.
4. The perusal of the award discloses that the Tribunal came to the conclusion that the claimant did not establish the question of negligence in the sense that no specific plea was raised in the claim application, nor evidence was produced to substantiate the same, may be that it was raised in the rejoinder.
5. Two questions arise for determination in this appeal, namely, whether the accident took place on account of rash and negligent driving by the respondent's driver and if so, what compensation is to be awarded to the claimant. We turn to examine the question of rash and negligent driving first.
6. Mr. A.K. Goel, learned Counsel for the claimant, submits that dismissal of the claim application is not only against law but also harsh in view of the fact that an application under Section 166 of the Motor Vehicles Act is maintainable only if the accident has taken place on account of the rash and negligent driving by the driver of the vehicle and the claimant had obviously moved this application on the plane that but for the negligence by the driver of the vehicle, the accident could not have taken place, such a plea was specifically taken in the rejoinder to the claim application. Mr. A.K. Goel then adverted to the two awards, namely, Durma Devi v. Himachal Road Transport Corporation, MACT No. 12-S/2 of 1990; decided on 11.4.1991 (Annexure P-2) and Babu Ram v. Himachal Road Transport Corporation, Case No. 4-S/2 of 1990; decided on 9.6.1991 (Annexure P-l). These two awards arise out of the same accident. In award dated 11th April, 1991 (Annexure P-2), under issue No. 1, the Tribunal has given a specific finding with respect to the negligence part of the case. In the latter case, the Corporation accepted the liability for this accident and paid the compensation to the claimant in reconciliation proceedings. According to Mr. Goel, these two awards are subsequent to the dismissal of the claim petition of the claimant in this case.
7. On 12th July, 1991, the claimant moved an application being CM.P. No. 178 of 1991 under Order 41, Rule 27 read with Sections 151/141 of the Code of Civil Procedure to lead additional evidence. Notice of this application was given to the respondent and after hearing the learned Counsel for the parties, the prayer for additional evidence was allowed by an order dated 25th November, 1992. No evidence in rebuttal was led although an opportunity was given.
8. It may be true that the claimant had not specifically led any evidence in his claim petition to prove rash and negligent driving of the vehicle by the driver of the respondent. However, the filing of claim itself indicates that the claimant had a grievance against the respondent for causing the accident. In this case the vehicle was in a normal condition till the accident had taken place. As such the principle of res ipsa loquitur was applicable and the respondent was, therefore, responsible for the accident in question.
9. Further, the claimant has brought to our notice the aforesaid two awards. Unfortunately, these awards were given by the Motor Accidents Claims Tribunal (I), Shimla, whereas the award in the case of the claimant was given by the Motor Accidents Claims Tribunal, Shimla. Since the Tribunal has clearly held that the driver of the respondent was responsible for the accident in question, it would be hard and harsh not to apply this finding in all similar cases arising out of the same accident.
10. In para 8 of the award (Annexure P-2), while discussing the evidence on the question of negligence, the Tribunal has recorded that:
Now adverting to the ocular witnesses I may refer to the evidence of Kewal Ram, PW 2. He was, in fact, sitting in the ill-fated bus at the time when the disaster occurred causing death of 13 persons on spot due to the accident caused by rash, reckless and negligent driving. He testified cogently that the driver was reckless in driving the vehicle which ultimately went down about 50-60 feet into the gorge. Further also PW 2 maintained that the driver was cautioned by the passengers sitting inside about 5-6 minutes before the accident, to slow down the speed, but it went unheeded. He maintained the rash speed. Thus his negligence, gross rashness and culpable recklessness while driving bus, stand proved beyond reasonable doubt on record.
Similarly, in this very award it has been further observed:
Exactly similar is the evidence of Daulat Ram, PW 3. Without mincing words he attributed excessive speed and negligent act to the driver plying the vehicle. He also corroborated PW 2 that the passengers inside raised hue and cry against the fast speed assumed by the driver, but all this proved inconsequential. Cogently this witness also deposed that due to rash and negligent driving the bus rolled down into a gorge causing 13/14 deaths of the passengers out of which Subhadra was the one. Indeed, both PWs 2 and 3 also sustained injuries.
I have gone through the cross-examination conducted on both these PWs. A little close scrutiny of it reveals that both of them stood the test satisfactorily. They maintained the same narrative. In other words, their entire evidence has remained consistent, natural and compatible. The Corporation/respondent failed to impeach their evidence. Rather some of the important facts as enumerated under sub-heads (a) to (d) above stand unambiguously admitted on record.
The respondent chose not to lead any evidence in defence. May be that it had no material or reason to escape from the stark reality appealing on record through the petitioner's evidence as considered above. Whatever be the reason. This circumstance renders all the more credibility to the contention raised under this issue by the petitioners.
Therefore, in view of the appraisal of the record as above, I decide this issue in favour of the petitioners and against the respondent.
11. The respondent has not led any evidence in defence before us although, as noticed above, an opportunity was given to it. The result, therefore, is that the accident took place on account of rash and negligent driving by the respondent's driver. In the circumstances, the respondent has to own the responsibility for the accident in question. We, therefore, hold that issue as to negligence stands proved against the respondent. The accident in this case had not taken place for any other reason than the rash and negligent driving by the driver of the respondent. There is no evidence that the vehicle was in any way defective. Therefore, it is a fit case where the principle of res ipsa loquitur applies and makes the respondent responsible for the same.
12. In these circumstances, the findings recorded by the Tribunal on this issue are patently wrong and, therefore, reversed.
13. Now we turn to the second aspect of the case.
14. This is a case of personal injury. The claimant has sustained serious injuries. In his statement, he has stated that on account of this accident, the lower portion of his body has become absolutely paralytic. He is unable to answer the call of nature or go for urinating on his own. He has to sit where he is made to sit. He cannot turn his sides since his limbs have become non-functional. He has lost the enjoyment of married life. According to him, he spent Rs. 1,000/- on a wheel chair, Rs. 5,000/- for treatment in Snowdon Hospital and Rs. 11,000/- in Ripon Hospital, Shimla. Besides, he had to keep two attendants to look after him. He is aged 35 years, Exh. PW 4/L. He has further stated that before the accident he used to work in his orchard and cultivate potatoes, besides doing the work of a contractor. He owns about 25 bighas of land with 125 apple trees on some portion of it. He used to do all types of work himself and now it is not possible for him to do so. Out of this agricultural, horticultural and contractorship work, his annual income was about Rs. 60,000/- which has reduced to Rs. 35,000/- to Rs. 40,000/- after the accident. In his cross-examination, he has stated that he used to sell potatoes to one Chaman as also to Surat Ram and Om Parkash. He did not pay any tax. In the year 1987, he sold 700 boxes of apple and in the year in which the accident took place he sold 600/650 boxes of apple. In 1990, he sold 400/500 boxes of apple through R.R. Commission Agents. His reference to Rs. 60,000/- meant net income, i.e., after deducting all expenses. In 1990, he leased out the apple orchard for Rs. 35,000/-. He admits that after leasing out the orchard, the contractor had his own servants to took after and harvest the crop. In the penultimate lines of his cross-examination he states that he remained in Snowdon Hospital for two months whereafter he went to Ripon Hospital and that his reference to his income was not incorrect.
15. The claimant has also stated that his father is aged 75 years and his mother 66 years. He is maintaining two minor sons, a daughter and his wife besides the parents.
16. On disability there is evidence of Dr. Gopal Shandil, Medical Officer, Ripon Hospital, Shimla. According to the doctor, it is a case of 100 per cent disability to the lower portion of the claimant's body. It has also been stated by the doctor that the claimant will have to spend his entire life on the wheel chair and would not be able to pursue his daily pursuits. He has also stated that the claimant requires an attendant (Annexure PA).
17. The claimant was examined by this doctor and had remained his patient. The disability to the lower limbs was incurable and would shorten his life span.
18. We have extracted the essential portion of the evidence in this case. It is clearly demonstrated that the injuries sustained by the claimant are serious in nature and permanent. He has been rendered completely incapacitated for rest of his life. He cannot move about freely. He has to be taken out and around by an attendant. He is unable to pursue his daily pursuits. He cannot look after his holdingsagriculture, horticulture and contractorship. It is in these circumstances that we have to assess the damages in this case, more particularly, keeping in mind the fact that damages awardable in cases of personal injury are higher than fatal accidents since the damages in such cases are to be spent by the victim on himself.
19. The damages are of two kinds. Pecuniary damages which are capable of calculation in terms of money and non-pecuniary damages which cannot be easily assessed and settled with accuracy. So far as pecuniary damages are concerned, the assessment can be made by taking into consideration the monthly income earned by the victim before the accident and the loss that would occur after the disablement.
20. Mr. A.K. Goel submits that the loss of net income in the present case has to be settled at Rs. 20,000/- per annum from all sources, namely, horticulture, agriculture and the other pursuits the claimant was following before the accident. This figure, according to Mr. Goel, is arrived at after making necessary deductions for essential expenses involved for earning the same.
21. On the other hand, Mr. Deepak Gupta vehemently asserts that looking to the conflicting evidence of the claimant, the net income of the claimant cannot in any case be more than Rs. 15,000/- per annum.
22. After examining this aspect of the matter and taking into consideration all plus and minus points, we are of the considered opinion that net annual income of the claimant can very well be settled at Rs. 20,000/-. The next consideration would be to look to the expenditure which the claimant is required to spend hereafter on an attendant to be kept by him regularly in view of the nature of his injury which is supported by clear evidence on record. Since he is spending Rs. 600/- per month on an attendant and that he is to give the attendant food and clothing in a village where the expenses must be very high, it would not be unreasonable to conclude that the claimant required at least Rs. 800/- per month to engage a permanent attendant. In this way, he would spend about Rs. 9,600/- per annum. However, it would be proper to fix this figure at Rs. 10,000/- per annum in view of the escalation in prices and non availability of an attendant at a lower rate.
23. It would also not be unreasonable to award Rs. 20,000/- towards medical expenses, travelling, etc., keeping in view the evidence on record and Rs. 70,000/- for pain and suffering.
24. Now, the question of multiplier remains to be decided in the present case. It is contended by Mr. Goel that looking to the age of the claimant and the judicial pronouncements, the suitable multiplier in this case should be 25. However, this contention is seriously opposed by Mr. Gupta who urges that the multiplier of 15 would be enough in the facts of this case.
25. Mr. Goel refers to Raghkar Dana Pyare Lal v. Malka Rani 1990 ACJ 812 (HP). This is a fatal accident case where the victim was aged 45 years and the multiplier of 14 was applied. The other case on which he places reliance is Amolak Ram v. Himachal Pradesh University, F.A.O. No. 126 of 1985; decided.on 24.6.1992, by a Division Bench of this Court. It has been observed in this judgment that:
There is no evidence of the expectancy of life in the family of Amolak Ram on the record. Yet, we can take judicial notice of the fact that the average span of life, in view of high rate of life expectancy in the country, is 70 years. [See Jyotsna Dey v. State of Assam 1987 ACJ 172 (SC) and Harden Kaur v. Rajasthan State Road Transport Corporation 1992 ACJ 300 (SC)].
Amolak Ram was about 58 years of age when he met with the accident. Having regard to his age at the time of accident, we can safely assume that he would derive the income from agriculture at the aforesaid rate till he attains the age of 70 years, namely, for the next 12 years after the accident. The loss of earning for that period would amount to Rs. 28,800/-. He would be entitled to this further amount, over and above the amount awarded to him by the M.A.C.T. as compensation.
26. On the other hand, Mr. Deepak Gupta places strong reliance on Bhagawan Das v. Mohd. Arif 1987 ACJ 1052 (AP), State of Himachal Pradesh v. Chaina Ram 1989 ACJ 13 (HP) and Brestu Ram v. Anant Ram 1990 ACJ 333 (HP).
27. In Chaina Ram's case 1989 ACJ 13 (HP), multiplier of 13 was applied where the permanent disability was to the extent of 100 per cent and the age of the victim was 34 years. In Brestu Ram's case 1990 ACJ 333 (HP), the victim was 35 years old. His legs were crushed in the accident and were amputated. In this case multiplier of 15 was applied.
28. We have given our anxious consideration to the facts and circumstances of this case. It is in evidence that the father of the claimant is 75 years old while his mother is 66 years. In the absence of any evidence to the contrary it can be said that the life span in the family is exceptionally very high. Keeping in view the longevity in the family it would not be wrong to select the multiplier of 18 in this case. After selecting the multiplier, we proceed to determine the compensation headwise:
Pecuniary damages:
(1) Loss of income Rs. 3,60,000/-
(Rs. 20,000 x 18)
(2) Attendant's expenses Rs. 1,80,000/-
(Rs. 10,000 x 18)
(3) Medical expenses Rs. 20,000/-
Nan-pecuniary damages:
(1) Pain and suffering Rs. 70,000/-
______________
Total: Rs. 6,30,000/-
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29. On the question of interest, the learned Counsel for the claimant submits that the claimant should be paid interest at the rate of 12 per cent from the date of claim application till the date of actual payment.
30. The learned Counsel for the respondent submits that the claimant had been careless in prosecuting his case in the sense that he did not lead any evidence on the question of negligence with the result that his petition was dismissed by the Tribunal. It was only in this Court that evidence of negligence could be brought on record by the claimant through additional evidence allowed by this Court. A pointed reference was also made to the fact that the claimant had been seeking adjournments from time to time.
31. After considering the submissions of the learned Counsel for the parties, we feel that it would be sufficient in the interests of justice to allow interest at the rate of 12 per cent to the claimant from today till the actual payment is made. The respondent will deposit the compensation amount in the Registry within two months. On deposit, the Registry will put Rs. 3,00,000/- jointly in the names of three minors along with the claimant in a nationalised bank for 37 months, which will be renewed regularly till they attain majority. The remaining amount will be invested in the name of the claimant for a period of 91 days in the first instance. Liberty reserved to the claimant to apply to the court for withdrawal of the entire amount or part thereof.
32. The appeal stands disposed of in the aforesaid terms. However, we make no order as to costs.