Himachal Road Transport Corporation and Another vs Sat Pal and Another

L.S. Panta, J.—This appeal at the instance of Himachal Road Transport Corporation (for short ''the H.R.T.C) and its Regional Manager has been directed against the judgment and award dated 18.1.1991 of the Motor Accidents Claims Tribunal (II), Sirmaur District at Nahan in Petition No. 1-N/2 of 1990, whereby the total amount of compensation of Rs. 1,29,000 has been awarded in favour of claimant-respondent Sat Pal and against the appellants for the personal injury sustained by the claimant-respondent in the accident. The claimant-respondent has also filed cross-objections for enhancement of the amount of compensation to Rs. 2,50,000 as claimed by him before the Tribunal below.

The claimant-respondept boarded bus No. HPN 913 belonging to the appellants from Nahan to Dhaula Kuan. When the said bus reached at village Kilar, it met with an accident on 13.9.1989 at about 5.30 p.m. Lekh Ram respondent was the driver of the bus in question. In the accident, the claimant-respondent received grievous hurt causing permanent disability to the extent of 100 per cent on the hip portion of his body as claimed by him. Claimant Sat Pal, who is the respondent in this appeal filed a claim petition before the Tribunal below seeking compensation of Rs. 2,50,000 on account of sustaining grievous hurt resulting in permanent disability. He stated that the driver of the bus in question was driving the vehicle in a rash and negligent manner as a result of which he lost control of the vehicle and dashed it against a standing buffalo on the left side of the road. Thereafter the bus struck against a second standing he-buffalo and then the driver collided the bus in question against a tree. After the bus struck against the tree, the bus turned turtle and as a result of which the claimant-respondent received grievous injury. He pleaded that his right hip portion has been damaged resulting in 100 per cent disability and the claimant-respondent has become a crippled man. He also alleged that his business has also been ruined on account of the said accident and he has been deprived of enjoying a natural life since both his testicles have been fractured and on that account also he would not be able to enjoy sex. A case was registered with the Police Station, Paonta Sahib against the driver of the bus in question under Sections 279/337 of the Indian Penal Code. The claimant-respondent has from the date of the accident remained under treatment under the various doctors and he is likely to remain so in future also as stated by him in his claim petition. He further alleged that he incurred more than Rs. 20,000 on his treatment and more money has to be incurred in future too for his treatment. The claimant-respondent has stated that at the time of the accident his age was about 33 years and was a businessman earning Rs. 3,500 per month. He remained on bed and the iron rods and nails have been inserted in his hip portion and that his entire family was reeling under great mental and physical tension ever since the accident took place.

The claim petition was resisted and contested by the appellants, who filed the written statement and admitted the accident but stated that the accident did not take place due to the rash and negligent driving of the bus in question by its driver. The defence of the appellants was that when the bus reached near village Kilar, a group of buffaloes came on the road and it obstructed nearly half of the width of the road at which the driver sounded horn, took all the precautions but suddenly one buffalo was pushed just in front of the bus by another buffalo in a fight and the driver to avoid the accident with the buffalo took the vehicle in a controlled speed to the extreme left side where due to sudden low pressure of the brakes, the brakes did not work and that the driver had to put the vehicle in heavy gear and in that process bus struck against a tree and overturned.

The driver of the bus in his separate written statement has admitted the accident and denied that the claimant-respondent received permanent disability in the alleged accident. He has also pleaded the same defence taken by the appellants in their written statement and further stated that when the bus turned turtle, per chance the front door unlocked and the claimant-respondent who was sitting near the front door, fell down and received injuries.

On the pleadings of the parties, the Tribunal framed the following issues on 26.10.1990:

(1) Whether the accident has taken place on account of rash and negligent driving by respondent No. 3 as alleged?

OPP

(2) If issue No. 1 is proved, to what amount of compensation, the petitioner is entitled and from whom? OPP

(3) Relief.

The parties went to trial and led their respective evidence. The Tribunal below on appreciation of the evidence recorded findings on issue No. 1 against the driver of the vehicle in question holding him negligent in driving the vehicle. Against issue No. 2, the total compensation of Rs. 1,29,000 was awarded in favour of the claimant-respondent and against the H.R.T.C.-appellants. The H.R.T.C. and its Regional Manager have filed the present appeal assailing the award of the Tribunal below on various grounds. The claimant-respondent has also filed cross-objections seeking enhancement of the amount of compensation to Rs. 2,50,000 as claimed by him in his claim petition.

We have heard the learned counsel on both sides. Mr. Deepak Gupta, learned counsel for the appellant Corporation contended that the Tribunal below has gravely erred in holding that the accident had occurred due to the rash and negligent driving of the bus by its driver and as per the evidence of the appellants, the driver in order to save the buffaloes which appeared on the left side of the road, all of a sudden applied the brakes due to which the accident had occurred. He next contended that the amount of compensation awarded is highly excessive and not at all in consonance with the settled principles of grant of compensation. He further contended that Dr. M.L. Gupta, PW 2, who medically examined the claimant-respondent has categorically stated in his cross-examination that the injuries suffered by the claimant-respondent are curable and, therefore, no reliance could be placed on the certificate issued by the doctor as there is no other proof of permanent disability of the claimant-respondent. The learned counsel also contended that there is no evidence on record adduced by the claimant-respondent to show that his income has been decreased after the accident and the method of applying the multiplier of 27 as used by the Tribunal below is against the settled norms and principles for using the multiplier. He has also challenged the amount of Rs. 30,000 granted by the Tribunal below under the head expenses of the treatment, etc., and urged that there was no evidence on record to prove that the. claimant-respondent has incurred such amount on his treatment as no doctor from the hospital at Dehradun where the claimant-respondent is said to have taken treatment for his injuries and even before the Tribunal below the claimant has stated that he has spent about Rs. 22,000 to Rs. 23,000 for his treatment but the Tribunal below has granted Rs. 30,000 on this count and also Rs. 3,200 as taxi charges for undertaking the journey from Nahan to Dehradun and back is too without any proof. The learned counsel further submitted that attendant charges of Rs. 8,000 have also been awarded without any proof on record and similarly granting a sum of Rs. 5,000 on account of pain and suffering and Rs. 5,000 for loss of enjoyment of life have been wrongly assessed by the Tribunal below under both these heads in the absence of any satisfactory proof.

Per contra, Mr. Kuldip Singh, learned counsel for the claimant-respondent contended that the claimant-respondent has received grievous injuries on his hip bones which were found having caused 10 per cent permanent disablement to the respondent-claimant and his permanent disablement has caused loss of income from the business since after the accident claimant-respondent could not attend to his business and has to employ a servant for conducting his business and looking after him in discharging his business and day-to-day pursuits. The learned counsel next contended that the loss of income assessed by the Tribunal below at Rs. 200 per month is at the lower side whereas from the evidence on record, it is proved that the claimant-respondent was earning Rs. 3,000 per month before the accident and that the multiplier of 27 used by the Tribunal below is just and equitable looking to the age of the claimant-respondent who was 33 years of age at the time of accident and, therefore, the award of compensation of the Tribunal below has to be enhanced to Rs. 2,50,000 as claimed by the claimant-respondent in his claim petition. He has also stated that the amount of compensation awarded under various other heads is just and equitable which has been arrived at by the Tribunal below based upon the appreciation of the entire evidence on record.

To appreciate the respective contentions of the learned counsel on both sides, we propose to reappreciate the entire evidence on record to find out whether the findings of the Tribunal below on all issues are valid and legal and whether the amount of compensation awarded by the Tribunal below in favour of the claimant-respondent and against the appellants is just and reasonable or the same deserves to be reduced or enhanced as contended by the learned counsel on either side. On the first question about the rash and negligent driving of the vehicle by the driver of the bus in question, we do not agree with the submissions of the learned counsel for the appellants that the driver was not negligent at the time of driving the vehicle. It has come in the evidence of the claimant-respondent while appearing as PW 3 that the accident took place due to rash and negligent driving of the bus in question by its driver and his statement finds corroboration from the evidence of Ashwani Kumar, PW 4, who was also a passenger of the bus in question on the relevant day. There is also overwhelming evidence on record to prove that the road where the accident is alleged to have occurred was wide and the buffaloes were standing at a distance of 9-10 ft. from each other on the roadside, but due to rash and negligent driving of the bus in question by its driver, the bus struck with the first buffalo and then the bus struck against another buffalo which was standing on the kucha portion of the road and thereafter the bus turned turtle. In the teeth of the overwhelming evidence on record, the Tribunal below has rightly decided issue No. 1 in favour of the claimant-respondent and against the appellants and its driver who was responsible for causing the accident due to rash and negligent driving of the bus in question. Therefore, the finding of the Tribunal below on issue No. 1 is held sustainable.

It is not in dispute that claimant-respondent had sustained injuries in the accident. The claimant-respondent while appearing as PW 3 has placed on record some documents in respect of the medical treatment said to have been received by him at Dehradun as well as in the District Hospital, Nahan which have been marked as Exhs. P-11 to P-31. The claimant-respondent said to have spent Rs. 30,000 on medicines, operations and iron nails inserted in the right leg and besides this amount he claimed that he spent Rs. 3,200 on account of taxi charges for going and coming back from Nahan to Dehradun and the receipts of the taxi charges have been placed on record marked as Exhs. P-4 to P-10. The claimant-respondent deposed that he remained in the private nursing home at Dehradun and the Tribunal below has assessed the expenses of the attendant who allegedly attended and looked after the claimant-respondent at Rs. 3,000. The claimant-respondent also claims to be an income tax payee and has filed income tax returns for the years 1989-90 and 1990-91 Exhs. P-32 and P-33 respectively. The Tribunal has not allowed the reimbursement of the medical bills in respect of the Exhs. P-34 and P-35 for want of proof as some of the bills produced were without signatures of the medical officer and were on plain papers. The claimant-respondent has placed on record medical certificate issued by Dr. M.L. Gupta, PW 2, who was working as surgical specialist in the District Hospital, Nahan during the relevant time. In medical certificate, Exh. P-1, the doctor has opined that the claimant-respondent has sustained 10 per cent permanent disability and in respect of his permanent disability the claimant-respondent has claimed the compensation of Rs. 2,50,000. The claimant-respondent stated that being a businessman, he was earning Rs. 3,000 before the accident and his age was 33 years at the relevant time. The claimant-respondent has also claimed Rs. 800 per month as salary of his servant kept by him after the accident to look after him and on this count the Tribunal has relied upon the testimony of the claimant-respondent and Subhash Chand, PW 5, who deposed that he was employed by claimant-respondent as servant on a salary of Rs. 800 per month and awarded the amount of Rs. 12,800 as the salary of the servant. The Tribunal below assessed the loss of earnings of the claimant-respondent at Rs. 200 per month and applied the multiplier of 27 for the loss of earnings and has thereby awarded an amount of Rs. 65,000 on this count and further sum of Rs. 5,000 was awarded for pain and suffering and another sum of Rs. 5,000 towards loss of enjoyment of life. Thus, the total amount of compensation awarded by the Tribunal works out to Rs. 1,29,000 in favour of the claimant-respondent and against the appellants along with interest at the rate of 9 per cent per annum from the date of filing of the petition till the date of payment and if the amount was not paid within three months from the date of the award and in default thereof, the interest at the rate of 12 per cent per annum was awarded from the date of filing of the claim petition till payment or deposit.

Now the question for our determination and consideration is whether the Tribunal below has rightly assessed the amount of compensation under the various heads noticed above or the amount so awarded is inadequate or excessive as contended by the learned counsel on either side.

Firstly, we will deal with the quantum of compensation on account of medical expenses said to have been incurred by the claimant-respondent. The claimant-respondent in his oral deposition has stated that immediately after the accident he was taken to hospital at Paonta Sahib and thereafter, he was taken to private nursing home at Dehradun, where he remained admitted in the said nursing home for one month. When he was admitted in the nursing home at Dehradun, the claimant-respondent was stated to have been operated upon and iron nails were inserted in his right leg and on this count he spent about Rs. 22,000 to Rs. 23,000. He stated that after discharge from the said nursing home, he used to visit the said nursing home for check-up and used to go by hiring a taxi. On careful consideration of his oral testimony we find that the claimant-respondent has not cared to place on record, the name of the private nursing home, where he got himself admitted nor the name of the doctor who had operated upon him and further there is no documentary evidence produced on record by the claimant-respondent to prove that he had spent Rs. 22,000 or Rs. 23,000 on his treatment while he was admitted in a private nursing home at Dehradun. It is not borne out from the record as to how the Tribunal below has assessed the amount of compensation of medical treatment of the claimant-respondent to the tune of Rs. 30,000. In the absence of satisfactory and positive evidence on record, we cannot accept the bald statement of the claimant-respondent that he had spent Rs. 22,000 or Rs. 23,000 on his treatment at Dehradun. It was for the claimant-respondent to have proved on record by leading cogent and convincing evidence that he had spent the claimed amount on his medical treatment. It may be possible that he was treated for his injuries in some hospital at some place but in the absence of any convincing evidence, the amount claimed by the claimant-respondent on his medical treatment cannot be granted to him to the extent awarded by the Tribunal below. The respondent-claimant was medically examined by Dr. M.L. Gupta, PW 2, in District Hospital, Nahan on 30.4.1990 and according to the opinion of Dr. M.L. Gupta, the claimant-respondent was found having 10 per cent permanent disability resulting from fractured neck right femur and fractured pelvis. The claimant-respondent had been operated upon for fractured neck right femur and nails were inserted. He further deposed that extraction of nails, if required, another minor surgical operation will have to be undertaken. It has come in the evidence of the doctor that he had not operated upon the claimant-respondent. The doctor has also categorically admitted in his cross-examination that the injuries on the person of the claimant-respondent are curable. In the teeth of the evidence on record, we are of the view that the claimant-respondent can be awarded a just compensation of Rs. 10,000 under the head of medical treatment. However, the claimant-respondent has placed on record some cash memos Exhs. P-11 to P-31 regarding purchasing of medicines, etc., and the amount spent on medicines, etc., works out to Rs. 8,064.35. Thus, the claimant-respondent is entitled to Rs. 18,064.35 under the head of medical treatment, operation and insertion of iron nails in the right leg and the expenditure spent on medicines, etc.

The Tribunal below has awarded a sum of Rs. 3,200 as taxi charges to the claimant-respondent. We have perused the receipts placed on record, marked Exhs. P-4 to P-10. From the careful perusal of the receipts Exhs. P-4 to P-8, we find that the name of the claimant-respondent was not mentioned from whom the taxi charges were received by the person concerned whose taxi had been hired. Therefore, the claimant-respondent has not proved on record, whether he had hired the taxi from Nahan to Dehradun and back on the dates mentioned in those receipts. In this view of the matter, the claimant-respondent is not held entitled to get the amount without being cogent and convincing evidence to prove that he spent the claimed amount. However, two receipts Exhs. P-9 and P-10 would go to show that amount of Rs. 450 was spent by the claimant-respondent on 17.4.1990 and another sum of Rs. 450 on 22.5.1990 for hiring taxi from Nahan to Dehradun. We place reliance on both these receipts and award a sum of Rs. 900 to the claimant-respondent on account of taxi charges and the award of the Tribunal below to the tune of Rs. 3,200 on account of taxi charges is not found sustainable and instead Rs. 900 is awarded for hiring taxi by the claimant.

The learned Tribunal below has also awarded a sum of Rs. 8,000 on account of expenses of attendant to look after the claimant-respondent in a private nursing home which in our view has been awarded without an iota of evidence on record. From the re-appraisal of the evidence of the claimant-respondent, we find that he has categorically deposed that when he remained admitted in a private nursing home at Dehradun, he was looked after by his wife, brother and other relatives and his relatives might have spent about Rs. 10,000 to Rs. 15,000 for their visits and looking after him at Dehradun. The claimant-respondent has not whispered a word in his deposition that he had engaged the services of any other person to look after him when he was allegedly admitted in a private nursing home at Dehradun. If the claimant-respondent was looked after by his wife, brother and other relatives, it was his obligation to have produced on record the expenses incurred by those persons while looking after him in a private nursing home at Dehradun and no such evidence has been brought on record to prove that the claimant-respondent had incurred any amount on the attendant when he as per his version was admitted in a private nursing home at Dehradun. On this count, the award of the Tribunal of Rs. 8,000 for expenses of the attendant is not justified and, therefore, the claimant-respondent is not held entitled to the said amount in the absence of any proof thereof.

The claimant-respondent has been awarded a sum of Rs. 12,800 in lump sum assessed as the salary of Rs. 800 per month of Subhash Chand, PW 5, who as per the version of the claimant-respondent, was deputed by him as servant to look after his business. In his cross-examination, the claimant-respondent has admitted that Subhash Chand, PW 5, is a Commission Agent in the Marketing Society at Nahan, whereas this version of the claimant-respondent has been denied by Subhash Chand, PW 5, in his deposition. However, looking to the magnitude of the injuries received by the claimant-respondent in the accident, we accept the testimony of the claimant-respondent and Subhash Chand, PW 5, that Subhash Chand, PW 5, was employed as a servant by the claimant-respondent after the accident to look after his business and the award of Rs. 12,800 on this count given by the Tribunal below seems to be just and equitable and, therefore, sustainable.

The claimant-respondent has also brought on record the balance sheet as on 31.3.1990 regarding profit and loss, marked Exh. P-32, of his business and also self-assessment tax receipt, marked Exh. P-33, for the assessment year 1990-91, wherein the income tax of Rs. 550 is said to have been deposited and this certificate has not been issued by the income tax authority but it is only for deposit of the said amount in the bank, under self-assessment tax and as such no reliance can be placed on these documents to assess the income of the claimant from his business. The Tribunal has not relied upon the evidence of the claimant-respondent that he was earning Rs. 3,000 per month before the accident. It has come in the evidence of Dr. M.L. Gupta, PW 2, and his Opinion in medical certificate, Exh. P-1, that the claimant''s upper portion of the body is still in working condition and he is able to look after his business. In view of this categorical medical evidence on the record, it cannot be held that the claimant-respondent has become permanently disabled and handicapped person and the disability of 10 per cent would not impair his physical condition to that extent that he is unable to look after his business while sitting in the shop. Therefore, we agree with the Tribunal that the loss of earnings of the claimant-respondent is assessed at Rs. 200 per month or Rs. 2,400 per annum. The Tribunal has applied the multiplier of 27 in the present case which in our view is highly excessive. In our view, the claimant-respondent is entitled to lump sum amount of Rs. 50,000 on account of loss of business as against Rs. 65,000 awarded by the Tribunal below. So far as the award of Rs. 5,000 for the pain and suffering and further amount of Rs. 5,000 on account of loss of enjoyment of life is concerned, we do not find any reason to reduce the said amount awarded by the Tribunal below as in our view it is just and equitable amount of compensation awarded in favour of the claimant-respondent.

On re-appraisal and re-examination of the entire evidence on record, in our considered view the claimant-respondent is entitled to a total amount of compensation of Rs. 91,800 as calculated under the various following heads:

(1) Medical treatment including operation and insertion of iron nails in the right leg of the claimant-respondent Rs. 10,000 (2) Expenditure on medicines, etc. Rs. 8,064.55 (in round figure) Rs. 8,100 (3) Taxi charges Rs. 900 (4) Salary of Subhash Chand, PW 5, engaged by the claimant-respondent as servant for looking after his business Rs. 12,800 (5) Loss of business earnings Rs. 50,000 (6) For pain and suffering Rs. 5,000 (7) Loss of enjoyment of life Rs. 5,000 ---------- Total Rs. 91,800

Thus the total amount of compensation awarded to the claimant is Rs. 91,800 which is just and equitable amount of compensation based on entire peculiar facts and circumstances of the case. The Tribunal has awarded interest at the rate of 9 per cent per annum from the date of institution of the claim petition till the date of payment and if the amount of compensation awarded by the Tribunal was not paid within three months from the date of the award, i.e., 18.1.1991, the claimant-respondent has been held entitled to interest at the rate of 12 per cent per annum from the date of institution of the claim petition till the date of payment or deposit. This reason of the Tribunal is not sustainable in view of the settled position of law by the Apex Court that invariably the interest at the rate of 12 per cent per annum has to be awarded in accidental cases to the claimants. Accordingly, the claimant-respondent is held entitled to interest at the rate of 12 per cent per annum from the date of institution of the claim petition, i.e., 20.1.90 till the date of the payment or deposit of the amount of compensation of Rs. 91,800 as awarded by us.

This court in Himachal Road Trans. Corporation v. Shiv Ram 1991 (1) Shim LC 185, has awarded a lump sum amount of compensation of Rs. 35,000 to the claimant who was a peon in the Government Department and was found having 52 per cent permanent disability because of the accident and the said amount was reduced from Rs. 50,000 awarded by the Tribunal below.

Mr. Kuldip Singh, learned counsel for the claimant-respondent, has relied upon the judgment of the learned single Judge of Orissa High Court in Oriental Insurance Co. Ltd. Vs. Guru Charan Saren and Another, Jagdish Chander Vs. Manjit Singh and Another, ; and the Division Bench of this court in Kaushalya Devi and Others Vs. Dr. Lakhbir Sood and Others, to contend that the claimant-respondent is entitled for enhancement of the compensation as the amount awarded by the Tribunal below has not been properly assessed looking to the injuries sustained by the claimant-respondent in the accident.

We have carefully considered the ratio of these judgments and find that the amount of compensation awarded by the learned Judges of the High Courts in those cases were assessed on peculiar facts and circumstances of the cases and the ratio of those decisions cannot be universally applied in the facts and circumstances of the present case.

In the result, for the above stated reasons and discussion, the appeal of the appellants H.R.T.C. is allowed in part whereas the cross-objections filed by the claimant-respondent shall stand dismissed and consequently, the award of the Tribunal below impugned herein shall stand modified to the extent indicated above. The parties are left to bear their own costs.