HARYANA STATE Vs. SUDESH RAIZADA

JUDGEMENT

(1.) THIS judgment of mine will dispose of F. A. O Nos 443, 445, 589 and 590, all of 1986, as the same arise out of an order, dated January 31, 1986, of the Motor Accident Claims Tribunal, Kurukshetra.

(2.) THE facts giving rise to these appeals may be stated, in brief, thus : AH the claimants were injured in an accident which took place on April 3, 1985 involving car bearing No DET 9118 (in which the claimants were travelling) and Haryana Roadways Bus No. HYX 2428 on Grand Trunk Road. 3 Charter of claim was that the car was owned by Ram Parkash Gupta, respondent No 2. It left Delhi, for Chandigarh with Deepak Gupta driving Haryana Roadways Bus No. 2428 oriven by Tarsem Lal Driver, came from the opposite direction and struck against the car on the Grand Trunk Road near Shahbad. Thus the accident was caused on account of rash and negligent driving of the bus. 4 The Tribunal in MACT No. 43/85 titled as Deepak Gupta v. Tarsem Lal vide award, dated January 31,1986 found, that the accident took place due to rash and negligent driving of respondent No. 5- Tarsem Lal Driver of Haryana Roadways Bus No. HYX 2428 in claim Petition by Deepak Gupta and awarded about Rs. 54, 000/- to Deepak Gupta. The award was accepted by the State as it was never challenged. It became final between the parties and so became the findings recorded therein. , 5. Present appeals arise out of an award given in favour of other claimants injured in the same accident. 6. In Claim Petition (MACT No. 41 of 1985) filed before the Motor Accident Claims Tribunal, Kurukshetra, Sudesh Raizada wife of V. P. Raizada, claimed Rupees Five Lacs as compensation for the Injuries suffered by her under various heads. The Tribunal awarded to her compensation to the tune of Rs. 50,000/- on account of permanent disability of 75 per cent and loss of enjoyment and amenities of life, a sum of Rs. 20,000/ - on acconnt of pain and sufferings, Rs. 10,000/- for medical expenses, Rs. 5,000/- on account of special diet, Rs. 4,500/-'as hospital expenses for having remained admitted as indoor patient in a private ward for two months, Rs. 57,000/- for expenses of, an attendant as the claimant was allowed to have the services of the attendant for a period of sixteen years; and Rs. 5,000/- were awarded to the claimant for being not in a position to render services to her hushand and children. Thus, in total Rs. 1,52,00/- were awarded to Sudesh Raizada. 7. Sandeep Kumar after retierating the facts stated by (he above claimant, claimed in MACT No 42/85 Rupees Two Lacs under various heads for the injuries suffered by him. The Tribunal awarded to him Rs. 24000/- as the compensation under the following heads : (a) pain and suffering : Rs. 15,000 (b) expenses incurred : Rs. 7,000 on medication (c) P. G. I. Charges : Rounded off to Rs. 1,000 (d) special diet : Rs. 1,000 8. Similarly, Jyotsna Bawa in her Claim Petition (MACT No. 40/85), alleging the negligence of the Bus Driver cf Haryana Roadways Bus No HYX 2428 involved in the accident with Car No DET 9118, claimed Rupees Three Lacs on account of various injuries suffered by her under various heads. The Tribunal awarded to her a total amount of Rs. 1,26 350/- as the compensation under the fallowing heads : (a) pain and suffering : Rs. 15,000 (b) 65 per cent disability : Rs. 30,000 (c) Miscarriage : Rs. 5,000 (d) loss in pay having remained on leave without pay, : Rs. 12,000 (e) loss in income on retirement : Rs. 8,750 (f) purchase of present and future medicines : Rs. 15,000 (g) keeping permanent attendant : Rs. 15,000 (h) conveyance for using Scooter-Rickshaw instead of Bus : Rs, 15. 000 (i) special diet : Rs 5,000 (j) not being able to serve her husband and children properly : Rs. 5,000 9. The findings of rash and negligent driving by Tarsem Lal Driver of Haryana Roadways Bus No. HYX 2428 and causing accident were accepted by the State by not challenging the award in appeal. Since no appeal was preferred challenging the award, the State, having accepted rash and negligent during of is Driver once cannot be pern itted now to say that the Bus Driver was not negligence qua the other claimants injured in the same accident between the same vehicles The findings that the Driver was rash and negligent in driving the vehicle involved in the accident having been accepted by the State, it would be ridiculous to hold in the other proceedings on the same facts, and evidence, that the Driver was not rash and negligent. The very concept of res judicata shall then be eroded because it would amount to bringing into existence two contradictory judgments on the same set of facts which cannot be supported on any reasonable ground. Otherwise too, the learned counsel for the State has not very seriously challenged the findings arrived at by the Motor Accident Claims Tribunal with respect to the rash and negligent driving by the Bus Driver, resulting in the accident. He was not able to point out any reason much less convincing reasons to take a view other than the one taken by the Tribunal and to hold that the accident had sot taken place because of rash and negligent driving by the Driver of the bus. , I affirm the findings arrived at by the Tribunal for the reasons recorded by him to the effect that the accident took place due to rash and negligent driving by the Bus Driver which resulted in injuries sustained by the claimants, along with Deepak Gupta. 10. The learned counsel for the claimant relied upon Mrs. Santosh Kamra and Ors. v. Haryana State, (1986-2) 90 P. L. R. 192. The New India Assurance Co Ltd. v. Shanti Devi (1986-2) 90 P. L. R. 106 and Bhagat Singh Sohan Singh v. Smt. Om Shartna (1983) 85 P. L. R. 1. It was observed in Mrs. Santosh Kamar's case (supra) as under : ". . . . . . As it happens no appeal has been filed by the State of Haryana in Gobind Roi Mehta's case with the result that the finding of the Tribunal that the accident had been caused due to the negligence of the bus driver, has BOW acquired finality. This precludes the Court now from giving any different findings in appeal here and it must consequently also follow that the finding in the case of Sohan Lal Kamra deceased that the negligence was of the driver of the jeep cannot be allowed to stand " It was further observed in The New India Assurance Company's case (supra) as follows : "the finding of negligence recorded against the drivers of two involved in the accident warrants to interference in appeal, particularly in the context of the previous litigation between the parties where a similar finding was returned. The reference here being to the two separate claims preferred by owners of the two trucks claiming compensation for the damage to their trucks from each other. Both these claims were consolidated and tried together by Tribunal. A similar finding on the issue of negligence was returned as in the present case. No appeal was preferred against the decision in these claim applications. The finding on the issue of negligence there as now acquired finality which precludes this Court from giving any contrary finding. In other words, it must be taken as established and settled that the accident occurred on account of the composite negligence of both the truck-drivers with 70 per cent of the blames being that of driver of the truck -HRH-5995 and 30 per cent of the driver of the other truck PNO-1537. " 11. Similar is the view taken in Bhagat Singh Sohan Singh's case (supra) I am in respectful agreement with the law laid down in the said case and there is nothing that I can usefully add. 12. Further, the learned counsel for the State has not been able to address how the compensation awarded to the claimants in F. A. O. Nos. 443 of 1986 and 445 of 1986 is excessive or disproportionate to the injuries suffered by them or to show that the conventional basis for assessing the damages were not taken note of. Nothing was pointed out as to which principle of taw or appreciation of evidence was violated or was not taken into consideration by the Tribunal while calculating the compensation. Rather in my view the Tribunal, while calculating the compensation, has erred in assessing the same on the much lower side. 13. The amount of compensation awarded is not sufficient when compared to the extensive injuries suffered by the claimants. In the latter part of the judgment, I propose to deal with claim of each claimant since no error was pointed out by learned counsel for the State and nothing was urged which could reasonably result in reducing the compensation, I find no force in the appeals preferred by the State and the same are liable to be dismissed. 14 The claimant Sudesh Raizada challenged the amount of compensation awarded being too meagre. I was taken through the oral evidence as well as the Claim Petition. In the course of arguments, it was not challenged that the claimant Sudesh Raizada was a woman of 43 years of age. She had two children at the time of accident. A perusal of the statements of Dr. S. N. Mathuria (P. W. 1) and Dr. K. P. Mishra (P. W 2) leaves no room for doubt that the claimant lost her mental faculties as she had suffered massive brain damage She is more or less insentient. The Tribunal on an apprasial of the evidence of the Doctors, rightly found that she was not even able to answer the call of nature or urinate herself. She was living dead and her condition was pathetic for the entire family; she, in fact, was a mere breathing body. 15. An application has been preferred to lead addititional evidence, in addition to the opinion already given by Dr. S. M. Mathuria, Neuro Surgeon, P. G. I. Chandigarh and Dr. K. P. Mishra, Orthopaedic Surgeon, P. Ws. 1 and 2, respectively, to the effect that she had suffered 75 per cent disability. She placed on record the opinion dated September 5, 1989 of Dr. V. S. Mehta, Associate Professor of Neuro-surgery. All India Instiute, New Delhi to the effect that the chances of improvement in the condition of the claimant were very little Similar is the opinion of Dr. B S. Sihota, Hindu Rau Hospital, Delhi It was opined that she was totally crippled and dependent on others. Further receipts with regard to the payment of Rupees Five Hundred per month to Nand Bai (P. W 5) who was looking after her since 1986 were placed on record. Receipts in regard to earlier payment to one Rani, a domestic servant, which amount had been increased to Rs. 325/- per month were sought to be placed on record. Statement regarding payment to an employee to look after the farm was placed on record as Exhibit P 14, as earlier it was the injured who was looking after the farm Additional claim of Rs. 9,870/- was sought on account of medical expenses incurred during the period from the decision by the Tribunal till now. The husband claimed Rupees Two Lacs as damages. as he had sought premature retirement on account of non-avability of servants to look after his bed-ridden wife. The claim was supported by an affidavit Notice was issued to the Advocate-General, Haryana. No reply controverting the said avernments is forthcoming. 16. The learned counsel for the claimant relied on Punjab State through Secretary Transport, Punjab Government, Chandigarh v. Kashmira Singh, 1987 (1) A. C. J. 401, Tejinder Singh Gujral v. lnderjit Singh and Ors. , (1987-2) 92 P. L. R. 417, Swatanlra Kumar Lamba and Anr. v. Sheila Didi, (1987-2) 92 P. L. R. 1. , Santokh Singh v. Ajay Diwan,1988 (2) A. C. J. 617. , Shri Mangal Kishore Kaul v. Union of India through the Chief Commissioner, U. T. Chandigarh, (1989-1) 95 P. L. R. 576 and State of- Himachal Pradesh through Secretary (PWD) v Chaina Ram,1989 (I) A. C. J. 13. 17. In Kashmira Singh and Ors. ' case (supra), this Court, for brain injury resulting in abnormality in mental and intellectual functions, fractures of base skull, nose, left leg and right humerus, deformity in both the hands and right leg to a law graduate of 24 years of age, awarded Rupees One Lac as cost of attendant, Rs 55,000/- for past and future medical expenses, Rs 1. 00,000/- for pain, suffering and disabilities, Rs. l,44,000/-as loss of earnings. Thus, the claimant Kashmira Singh was awarded compensation which was rounded off to Rs. 4,00,000/ -. 18. in Swatantra Kumar Lamba and another's case (supra), the injured Advocate of thirty years of age, was awarded Rs. 5,600/-for medical expenses and transportation, Rs. 4,800/- on account of special diet, Rs. 20,000/- for loss of income Rs. 96,000/- for loss of earning capacity, Rs. 40,000/-for pain, suffering and loss of pleasures of life and Rs. 5,900/ for attendant and gratuitous services and Rs. 1,500/- for damage to scooter Thus, a total amount of Rs. 1,73,800/was awarded in the said case The amount for the lady who had sustained serious multiple injuries leading to permanent disability was assessed at Rs. 3,53,000/- but awarded Rs 2,50 000/as per her claim. 19. In Tejinder Singh Gujral's case (supra), compensation for pain and suffering etc awarded to the injured was Rs. 1,00,000/- and also allowed was an amount of Rs. 7,600/- for services of attendants and Rs. 1,83,000/-for loss in his income. Total award given was for Rs. 2,90,000/20 In Santokh Singh's case (supra), for closed head injury with cerebal contusion and mid-brain injury, the injured having remained in hospital for about three months with permanent physical disability between 5 to 20 per cent and impairment of brain function of 20 per cent, disturbance of hearing, loss of unilateral vibration sense, loss of memory and diplopia, was granted under various heads an amount of Rupees Two Lacs. 21. Similarly, in Ghana Ram and another's case (supra), on account of the injury resulting in permanent disability to the extent of 100 per cent to a person of 34 years drawing Rs 836/- per mensem at the time of accident. Rs. 50,000/- were given for pain, shock and suffering and for loss of amenities of life including actual loss of earning. Total award for a sum of Rs. 2. 06,621/was granted. 22. In Shri Mangal Kishore Kaul's case (supra), where a student of M. Sc Bio-physics suffered disability to the extent of 80 per cent on account of his leg having been shortened by two inches and was remained in hospital for three months, compensation totalling a sum of Rs 2,10,000/was awarded under various heads. 23. There is no gainsaying that the conventional basis for assessing the damages cannot be adopted in the present case. The principle that one must ask whether the sum awarded is a fair sum, has to be kept in view It is an accepted principle that while awarding the compensation in injury cases, one should keep in mind that the amount awarded to the claimant is just. The pecuniary loss as well as the non pecuniary loss suffered have to be borne in mind while calculating the amount of compeasation to be awarded. The money awarded has to be reasonable and fair. The claimant is entitled to the full compensation of the properly estimated pecuniary loss. 24. The Court is not concerned with how the money awarded is used by the claimant or whether the plaintiff at all can personaly me the money awarded. Compensation under an item simply cannot be denied on the ground that the same cannot be enjoyed personally by the claimant. While assessing the damages, the Tribunal should not enter into a guess as to what the claimant would or would not have done with her earnings. The Court should make an attempt to fix at best it can the damages keeping in mind the cost the injured would have incurred on food and lodging and if not injured would have spent on himself and the expenses necessarily common to the way of life imposed upon the claimant by the injury and the way of life one would have led uninjured. Reasonable assessment should be made for pain and suffering suffered or which the claimant would be suffering during the remaing part Of his life and compensation on the basis of that assessment should be awarded. Speculation, while assessing the damages, must be avoided. Though no comparison can be admitted in two cases of injuries yet the decided precedents can give some guidance The damages can be awarded keeping the facts and circumstances of each case in view Perfect justice is not attainable in such cases nor would it be wise to search for the nearest approximation. 25 After going through the evidence on the record as well as admitted by way of additional evidence in the form of affidavits not controverted by the respondents, it will be reasonable to infer that claimant Sudesh Raizada in worm than insentient There is absolute and compete loss 6f amenities of her good and useful life. The pain and suffering she is undergoing is virtually dreadful for her There are no comparable cases which were cited at the bar. It is in the evidence that the claimant is aware of her condition and is undergoing a sustained pain and suffering and that she has been intellectually as well as physically impaired Keeping in view the conventional cases cited at the bar, whatever evidence has been read and even ignoring the additional evidence produced on the record, it would be reasonable to award Rs. 50,000/- to the claimant for pain and suffering. I order accordingly. 26. It has been accepted by the Tribunal that disability is more than 75 per cent in enoyment and amenties of life. In my considered view the Tribunal has taken a too conservative view while awarding the compensation of Rs. 50. 000/- on this count. While awarding the compensation on account of loss of enjoyment and other amenties, the genuine deprivation be it pecuniary or non-pecuniary in character has to be kept in view. In my opinion, Rs. 75,000/- would be a reasonable amount of compensation for disability of 75 per cent and above. 27. Again, keeping in view the cases cited at the bar, awarding Rs. 10,000/- for medical expenses and expenses for special diet, amounting to Rs. 19,5000/- is not commensurate with the injuries suffered and her continuing in the same state of affairs even after lapse of such a long time of the accident which fact stands corroborated by the addnional affidavit supported by the vouchers and admitted in evidence without any objection or even reply on the part of the respondents. Consequently, 1 am of the considered opinion that it would be reasonable to increase the amount of medical expenses from Rs, 10,000/-to Rs. 20,000/ and on account of special diet which the claimant has taken and is liable to take throughout the rest of her life to Rs. 30,0 00/ -. No change is required in the award with-respect to the expenses incurred by her for remaining hospitalised assessed by the Tribunal, i. e. Rs. 4 500/ -. Taking judicial notice of rising costs and non- availability of attendants which admittedly she would require throughout her life, I award Rupees 75,000/- as the expenses of an attendant for a period of at least another twenty years of her life. Again, the damages awarded amounting to Rs 5,000/-to the claimant for not being in a position to render service to her husband and children is not commensurate with respect to the family to which she belongs, the circumstances in which she was living as well as other attending circumstances It was not disputed that the husband of the claimant had to seek his premature retirement to look after his wife who is totally crippled and cannot even property urinate and pass stool of her own. There is no doubt that the clain ant is not in a position of providing love and affection to her hush and, though the claim made by him amounting to Rupees Two Lacs is an exorbitant claim. I am of the considered view that an amount of Rs. 25,000/- would be a reasonable amount Consequently, I award Rs. 2s,000/- to the claimant for her inability in rendering the services to the husband and children as well as loss of normal amenities of life which she would have provided had she been not injured. 28. By adding up all the sums awarded above and rounding off the figure, I am of the view that an amount of Rs 2,80,000/-would be fair sum as the compensation in her case particularly keeping the type of injuries suffered by her in view, supported by (he evidence already recorded and further taking into consideration the reports given by Dr V. S. Mehta, Associate Professor, Neuro Surgery New Delhi, Dr. B S Sahota, Head of the Orthopaedic Department, Hindu Rau Hospital, Delhi which were never challenged by the respondents, nor any objection was raised in the course of arguments with respect to the admissibility of the said reports or placing on record the other receipts produced along with including the medical expenses and other hospitalisation expenses and the expenses carried out for verious tests. The sums awarded would take care of the future inflation etc Therefore, I hereby award an amount of Rs. 2,80 000/- to Sudesh Raizada with interest at the rate of 12 per cent per annum from the date of filing of the Claim Petition till the date of payment. 29. It has come in evidence that Sandeep Kumar had suffered tripple compound fracture of his forehead and he had to undergo the operation twice over. Exhibits P-l and P-15 depict the injuries suffered by him. He had to suffer a bone defect which may be subsequently repaired. Considering the nature of the injuries suffered and his having undergone the operation twice over, an amount of Rs. 15,000/- for pain and suffering is not co nmensurate with the sufferings the injured must have undergone. The pain and sufferings cannot be measured and compensated with an exact amount but there has to be some reasonable nexus, Undisputably, he had remained in hospital on one occasion for twelve days after the operation and for some time after the second operation. Keeping the injuries and the number of operations in view, along with the other circumstances, I am of the considered view that Rs. 30,000/- would be a reasonable compensation for pain and sufferings in his case. No interference is called for with respect to the compensation awarded for expenses incurred on medicines and for staying in the private ward and I confirm the same. The total amount comes to Rs 8 000/- under this head. Another sum of Rs. 1,000/- is awarded to the claimant on account of special diet and transport charges, which is again on a lower side, I increase the same to Rs 2,000/ -. Thus, the award of the Tribunal is modified to the extent that Sandeep Kumar is awarded Rs. 40,000/- as the compensation for the injuries suffered by the claimant with interest at the rate of ) 2 per cent per annum from the date of filing the petition till the date of payment. 30. So far as Jyotsna Bawa is concerned, it was not disputed at the bar and fairly so. that the Tribunal after taking into consideration the statement of P. W. 1 Dr. K P. Mishra and Exhibit P-1, came to the conclusion that the claim ant had suffered shortening of right lower limb by one inch and permanent physical impairment to the extent of 65 per cant. A permanent nail was put in her right thingh. She has admittedly lost her frontal tooth also. She suffered miscarriage too She is a Clerk in a Bank. Keeping in view the conventional damages being awarded in such a situation and the precedents cited at the bar, I am of the considered view that an amount of Rs 30. 000/ on account of permanent disability and Rs. 15,000/- on account of pain and sufferings are inadequate reimbursement for the pain and sufferings and permanent disabilities she has suffered and has to bear, in my considered opinion Rs 50. 000, - would be a reasonable amount of compensation for her permanent disability and Rs, 25,000/- for pain and sufferings, suffered by her It is a well known fact that no helper is available at Rs. 250/- per month Consequently, keeping the scale taken into consideration by the Tribunal in view, I award Rs 400/ per mensem for the domestic help she took Consequently, I enhance the award under this head to Rs. 25. 000/ -. Interference is called for under no other head I confirm the award of the Tribunal awarding Rs. 12,000/- as compensation for loss of salary, Rs. 8,750/- for loss of pay on account of her increment having been deferred by seven months, Rs 15,000/- for expenses incurred on medicines, Rs 15,000/- as expenses for transportation, Rs. 5,000/ on account of expenses for extra diet, Rs 5. 000/- for loss of family service and Rs. 5,000/- for miscarriage. Thus, totalling the amounts and rounding off the figure, I award a total sun of Rs 1,70,000/- with interest at the date of 12 per cent per annum from the date of application till the date of payment Though additional evidence placed on the record in the form of an affidavit supported by various vouchers was not addmitted Into evidence, but while assessing the damages the future expenses likely to be incurred have been kept in view. 31. In view of my above observations, the award of the Tribunal is modified in the terms-stated above. The Appeals are disposed of, but without any order as to costs.