Delhi Transport Corporation vs Brijesh Kumar and another

I. P. Vasishth, J.—Since all the four F. A. F. Os arise out of a common judgment dated 1431989 rendered by Sri R. N. Singh, I Additional District Judge, Lucknow; therefore we propose to decide them together by the instant common order.

The gist of the matter is that in November, 1978 Brijesh Kumar, appellant in F.A.F.O. No. 161 of 1989 and respondent in the cross F.A.F.O. No. 92 of 1989, was working as Entertainment Tax Commissioner, U. P., on 26111978 he was travelling in his Ambassador car No. H. T. C. 2429 being driven by chhaina la], respondent in F. A. F. O. No. 129 of 1989. Gopal Narain Singh, Senior Statistical Investigator was also accompanying them and sitting on the front seat by the side of the driver whereas Brijesh Kumar was sitting on the rear seat. The vehicle was on its way to Ghaziabad from Sikandrabad on official duty when at about 3.15 P. M. it got banged into by Bus No. DMP 2459 being driven by its driver Ramesh Raajrespondent no. 2 in F. A. F. O No. 16l of 1989 brought by Brijesh Kumar. Gopal Narain Singh suffered multiple injuries to which he succumbed on the spot; whereas Brijesh Kumar and Chhanga Lal were shifted in injured condition to a nearby private hospital run under the name and style "Narendra Mohan Hospital" at Ghaziabad. After being given first aid they were brought down to Lucknow and treated here in King George Medical College. Chhanga Lal was discharged shortly afterwards but Brijesh Kumar had to be hospitalised fora long period as he was found carrying some serious injuries including fracture of the femur neck. He was attended by the Orthopaedic Surgeons and subjected to surgeory; the treatment continued and he remained confined to bed at his residence for a couple of months despite being discharged from the hospital on 31121978.

It was averred that as a result of the aforesaid accident the entire family of Gopal Narain Singh was orphaned as he was its sole breadwinner whereas Brijesh Kumar suffered severe injuries including a permanent disability of the type which restricted his physical movements on account of the fracture of the femur neck. Similarly, Chhanga Lal also claimed having suffered serious injuries necessitating treatment, physical discomfort and mental agony.

Brijesh Kumar and Chhanga Lal filed their individual claims for compensation on account of the injuries claiming Rs, 6,00,000/ and Rs. 25,000/ respectively. Smt. Raj Dulari Devi, widow of Gopal Narain Singh filed her separate and independent claim for a compensation amount of Rs. 1,82,428/ pleading interalia that she had three minor children including an unmarried daughter Km. Sandhya Singh from the loins of the deceased who was their sole breadwinner and that in his absence it was almost impossible to sustain the family; to be precise they were entirely dependent on the deceased.

Resisting the claim petitions the respondents including the Bus driver Ramesh Raaj besides the owner Delhi Transport Corporation, who is appellant before this Court in F.A.F.O. Nos. 92 of 1989; 129 of 1989 and 130 of 1989 and respondent in F.A.F.O. 161 of 1989 did not deny the accident They rather came out with the explanation that the Bus had suffered a sudden break down on account of the damaged front tie rod spring as a result of which it went out of control and abruptly swerved towards the right when car driven by Chhanga Lal came from the opposite direction and struck into the bus near its rear entry window. It was complained that the car driver could have easily avoided the accident had he been a little alert.

On framing the necessary issues reflecting the various pleadings of the parties, the learned Motor Accident Claims Tribunal conducted an inquiry and concluded that the accident took place entirely on the making of the bus driver Ramesh Raaj; that the bus was being driven by him during the course of his employment under the D.T.C. and thus they had joint as well as several liability towards the injured and the deceased''s dependents. The claims of Smt. Raj Dulari Devi and Chhanga Lal were sustained in their entirety whereas in the context of Brijesh Kumar an amount of Rs. 3,50,000/ was awarded towards the compensation. Interest at the rate of 12% per annum was also ordered to be paid on the aforesaid compensation to the claimants from the date of petitions till the date of actual payment.

Feeling aggrieved, Delhi Transport Corporation brought three separate but connected appeals whereas Brijesh Kumar brought his own crossappeal to question the propriety of reduction in his claim.

In all fairness to the learned counsel for the parties, the incidence and manner of the accident was not disputed before us. The submissions were rather kept confined only on the quantum of compensation awarded to the various claimants.

In so far as the claims of Smt. Raj Dulari Devi and Chhanga Lal are concerned, we are not inclined to interfere for the simple reason that the award was not shown to be excessive by any stretch of logic. Chhanga Lal was the driver on the illfated car carrying Gopal Narain Singh deceased and Brijesh Kumar. Obviously, he suffered the first impact of the accident resulting in no less than 7 injuries on the various parts of his person; mental shock and accident apart, six of his teeth were broken in the process, his sworn statement as P. W. 2 that at a later stage he had to get extracted another three teeth was neither rebutted nor questioned during the course of crossexamination. It would, therefore, be going too far to say that the compensation of Rs. 25,000/ was excessive by any reasonable standards.

Gopal Narain Singh was Senior Statistical Investigator in Government service, he was 42 years of age at the time of the accident and is survived by his widow and three minor children including an unmarried daughter who was the eldest amongst the kids and only 15 years of age at the time of filing of the claim petition. The family is not shown to have any other source of income or sustenance. It can reasonably be assumed that the bulk of his monthly salary must have been going towards the upkeep of the family more so when Gopal Narain Singh was not even alleged to be a person of any extravagant habits. Under the normal circumstances he would have certainly served the State Government till the age of superannuation at 58 years. At the time of incident his basic pay was Rs. 765/ per month which got revised soon thereafter and amounted to more than double the earlier salary. Besides this, the family must have incurred expenses for taking the dead body to his distant village for last rites and rituals. Against such backdrop the learned counsel for the appellant D.T.C. could not draw our attention towards any such material on record which could be pressed in service to question the propriety of the calculations arrived at by the Motor Accident Claims Tribunal.

The main dispute, however, pertains to the appeal and crossappeal relating to the award of Rs. 3, 50.000/ to Brijesh Kumar on the ground of having sustained severe injuries resulting in permanent physical impairment including reduction in pleasure of marital life and mental shock. The Tribunal appears to have considerably strained itself in highlighting the academic qualifications and social status of the witness. It was also pointed out that in his student age he had been a good sportsman and because of his all round talent attained a certain level in service.

The credentials of the claimant Brijesh Kumar was neither an issue before the Tribunal nor has been racked up in this Court and rightly so because the very fact that he successfully competed for the highest civil service and joined the elite bureaucratic cadre on merit should have sufficed to accept his high social status. But the basic aspect which requires adjudication relates to the nature and impact of the injuries received by him in the incident and for this purpose we will have to revert to the evidence. It is common ground that immediately after the accident he was shifted to a private Doctor at Ghaziabad who gave him first aid before making reference to the Medical College, Lucknow; the said doctor was not examined in the proceedings. Brijesh Kumar was ultimately treated by P W. 3 Dr. J. N. Kakkar, Orthopeadic Surgeor, Medical College, Lucknow.

The evidence of Dr. Kakkar was challenged on the ground that he was not a summoned witness and was inducted in the witness box one fine morning without prior intimation to the opposite party. The grouse is devoid of force because in the claim petition it was revealed that the claimant Brijesh Kumar was treated at Medical College Lucknow; and then the technical rules of Evidence Act and Civil Procedure Code do not apply in their full rigidity to the inquiry proceedings before the Motor Accident Claims Tribunals. It is besides the point that the evidence of Dr. Kakkar was not something which could be procured or fabricated out of nothing; quite often in their anxiety to avoid unnecessary delays in the trial proceedings, the parties bring their witnesses with them. Dr. Kakkar was examined on 2651986 which was fixed in advance for the claimant''s evidence He was made available to and duly crossexamined by the opposite party without any semblance of protect. It would, therefore, be now quite late in the day to question his veracity simply on the ground that he was not summoned through the process of the court.

Scrutiny of Dr. Kakkar''s deposition would, however, expose his inability to confirm the claimant''s grievance of permanent impairment because towards the closing part of his examinationinchief itself he expressed his inability to make a categorical statement that the injured would carry the limp all through out his life on account of the femurneck fracture. Similarly, he conceded that he was not an expert on sex matters. It would, therefore, be hazardous proposition to believe that there was medical confirmation of the claimant''s grouse that there was a reduction in his marital bliss or pleasure on account of this accident.

Dr Kakkar admitted that barring the fracture of left femurneck the claimant did not have any other such injury which required notice, meaning thereby that but for some superficial abrasions etc Brijesh Kumar did not have any other serious injury. Of course the severity of his injury relating to left femur neck could not be slighted because Dr. Kakkar, who was quite an independent and detached witness further, opined on the basis of his expertise, that as a necessary consequence of this injury the claimant could not enjoy a normal life in the matter of sitting, squattingkneeling, bending and long walks, he could also have problems in normal way of sleep because of deficiency in the hip bone to take the body pressure on the left side, He also corroborated the claimant''s complaint in feeling uncomfortable at the time of driving cars etc.

The learned counsel for the claimant Brijesh Kumar tried to impress upon this Court the propriety of accepting his own statement on the issue of diminished pleasure of marital bliss. He submitted that because of this accident the claimant lost his potency to the extent that he did not have a child thereafter. The submission requires summary rejection for want of supporting material on record. On the other hand the deposition of Brijesh Kumar P. W. 1 itself is clear to show that his was a planned onechild family and that the said child was born about seven years prior to this accident. He nowhere deposed that either he or his wife even wanted or tried to have a second child or that the second conception could not take place because of his injury. As a matter of fact the submission is nothing but a figment of imagination.

It was then urged that because the claimant was a senior I.A.S. Officer and was deprived of normal life, therefore, the awarded amount of compensation was too meager and required reconsideration in the light of unrebutted evidence that the injury had diminished his chance of longevity of life despite the fact that both his parents were alive at the age of 75 and 69 years respectively.

Howfar such type of injuries could be assessed in the terms of pecuniary loss and compensated in commensurate monetary terms may require appraisal in the light of precedents with which we would be dealing in the later part of the judgment but suffice to say at this stage that no other argument was advanced on his behalf.

On the otherhand the learned counsel for D.T.C., the owner of offending bus, contended that the entire issue relating to the grant of compensation to Brijesh Kumar was erroneously dealt with by the Motor Accident Claims Tribunal because nowhere in his petition the claimant Brijesh Kumar averred the reduction of pleasure in his marital life due to the injuries suffered in this incident; moreover he did not care to provide the basis of his claim categorywise; just as to what amount was being claimed on account of loss of normal marital life, mental agony, physical pain, loss of expectation of life or physical permanent disability. It was urged that in the absence of specific pleas no amount of evidence could be looked into to grant compensation.

We are not impressed with the effort of the learned counsel because as observed hereinbefore, the strict rules of pleadings as envisaged by the CPC do not apply to the compensatory proceedings before the Claim Tribunals originating in realms of social justice to the victim of road accidents. The basic requirement is that a petitioner should broadly set up his case to apprise the opposite party of the necessary particulars of accident in the format provided by the Rules framed under the Motor Vehicles Act and on this aspect the claimant could not be possibly faulted.

That directly confronts us with the contentious issue of quantifying the amount of compensation. In all fairness to him, the claimant Brijesh Kumar did not ask for any relief on account of the medical treatment, special food or loss of wages etc, and conceded that the accident did not adversely affect his service graph including promotional prospects. It may also be worthwhile to mention that on account of his Government service, he got free and proper medical aid and treatment. He thus restricted his claim to the category of general damages which may also be categorised as "Nonpecuniary" and, to a considerable extent, permit a little bit of guess work and estimations. All the same, there has almost throughout been a sort of consistency in the thought and philosophy to grant a just, fair and reasonable amount of compensation, the concept being one of "compensation" and not of wind fall. If any authority were required to support the view, one can easily refer to the case of General Manager, Kerala State Road Transport Corpn v. Susamma Thomas (1994)2 Supreme Court cases 176. An unmarried 23 years old girl Puspa Thakur was crushed under the wheels of a military truck on August 28, 1972 on National Highway (DelhiMathura road). In the accident she suffered fracture of the her legs and ultimate amputation of the right leg, the Tribunal awarded her a compensation amount of Rs. 50,000/ only. The Union of India went in appeal before the High Court and despite holding the offending vehicle guilty on all count, it turned down the claim under the concept of "Sovereign function" of the State with the finding that the offending vehicle was on duty at the time of accident. The issue was taken to the Apex Court, who in the matter of Puspa Thakur v. Union of India 1984 Accidents Claims Journal 559, were pleased to repel the High Court reasoning and sustained her entitlement to compensation. Their lordships were fully alive to the situation that career apart, the matrimonial prospects of a young budding girl were completely rattled if not altogether shattered; obviously it was impossible for her to live a healthy and vigorous life. They awarded her a total compensation amount of Rs. 1,00,000/ (one lac).

In the matter of Jai Bhagwan v. Lakshman Singh (1994) 5 Supreme Court Cases 5, a 22 years young man got involved in an automobile accident in January, 1991 resulting in the amputation of left leg above the knee, leaving him in a permanent impairment, Both on pecuniary as well as non pecuniary heads, he was granted a total compensation amount of Rs..45,000/ by the Motor Accident Claims Tribunal which was affirmed by the High Court, On appeal the learned Judges of the summit Court enhanced it to Rs. 80,000/ only. The logic as available to the case of Puspa Thakur discussed hereinbefore applied in full vigor to this case also.

In the case of Suresh Chandra Saksena v. Union of India, 1983 Accident Claims Journal, 436, a 40 years old railway employee suffered fracture of both the femur bones, left collar bone and side ribs besides serious injury on nasal bone in an accident in December, 1976. His power of chewing was reduced, sight was weakened and life was shortened; he was awarded an amount of Rs. 14.000/ as special damages and Rs. 23,000/ as general damages by this Court itself.

In the matter of Sushila Pandey v. New India Insurance Co. a 11 years old girl student of Class VI was involved in a read accident in September, 1976 she suffered permanent disability and her entire body below waist was paralysed. A Division Bench of this Court granted her total damages of Rs. 68.000/ and it goes without saying that like Puspa Thakur, this girl too had suffered almost complete loss of her matrimonial prospects. On medical examination in the medical college at Lucknow it was found that she had suffered multiple fractures including those of ribs, collar bone and vertebra.

By no stretch of logic or imagination the injuries of the claimant Brijesh Kumar could compete in discomfort, gravity or misfortune with Km. Puspa Thakur, Jai Bhagwan, Suresh Chandra Saksena or even Km. Sushila Pandey. Therefore, the award of Rs. 3,50,000/ as compensation accorded to him by the Motor Accident Claims Tribunal deserves to be and is hereby set aside as unsustainable. Thus in the totality of the circumstances, including the claimant Brijesh Kumar''s age at the time of accident, we hold his entitlement to and award him a lump sum compensation of Rs. 1,00,000/ only (Rupees one lakh) on which he would of course, draw interest at the rate and in the terms as determined by the Tribunal.

Resultantly, F.A.F O. No. 92 of 1989 Delhi Transport Corporation v. Brijesh Kumar and another is partly allowed and the award of the Tribunal modified accordingly to the extent indicated in the preceding para whereas all the other three F.A.F.Os. i.e. 129 of 1989, Delhi Transport Corporation v. Brijesh Kumar and another, 130 of 1989, Delhi Transport Corporation v. Smt. Raj Dulari Devi, and 161 of 1989 Brijesh Kumar v. Delhi Transport Corporation are dismissed. There would be no order as to costs.

Immediately after the pronouncement of the judgment Sri Sudhir Shankar, learned counsel for appellant Brijesh Kumar in F.A.F.O. No. 161 of 1989 requested for leave to appeal to Supreme Court. Since no question of law much less substantial question of law of public importance for the consideration of the Hon''ble Supreme Court, is involved in the matter, the prayer for leave to appeal is declined.

(Appeal partly allowed)