Rajiv Kumar Dubey vs Union of India (UOI) and Others

U.N. Bachawat, J.—This is an appeal by the claimant against the award of the Motor Vehicles Accidents Claims Tribunal, Sagar, dated the 6th day of May, 1976, in Motor Vehicle Accident Case No. 25 of 1975. This order shall also govern the disposal of the cross-objection by Respondent No. 1.

The accident out of which the claim had arisen took place on the 10th of January, 1975, at 11.00 a.m. in the campus of the Saugor University. The vehicle involved was a military truck No. ZD 59889 of the Union of India, Respondent No. 1 herein and Respondent No. 2 herein was the driver who was driving the truck at the material time.

The claimant, at the material time, was the student, who had to appear at the supplementary examination of the Higher Secondary, which was held in the month of April, 1975. The father of the claimant is an Assistant Professor in the Department of Hindi of the Saugor University and has been residing in the University campus. The claimant was at the relevant time residing with his father.

The above facts are not disputed before us. It is also not disputed that the claimant who was going ahead of the truck in the University campus was knocked down by the truck and he sustained bodily injuries resulting in permanent disability.

The Respondent Union, vide its cross-objection, disputes the finding of negligence and the quantum of damages awarded by the Tribunal as also its vicarious liability to pay on the ground that it has immunity because the truck was detained on Government duty for carrying ration from Sagar for the soldiers in Dhana camp and that was the act in exercise of its sovereign power whereas the claimant''s grievance in this appeal is that the quantum of damages awarded is inadequate. An application under Order 41, Rule 27, CPC has also been filed on behalf of the claimant to produce certain documents in support of the contention that even after the award, the claimant has been suffering and had to spend a sum of Rs. 16,000 over the medical treatment. However, the learned Counsel for the claimant, during the course of the argument, submitted that he wants to confine his claim for enhancement of the compensation amount by Rs. 15,000 inclusive of the sum spent over the medical treatment after the award.

We shall first deal with the question of negligence. This question has been discussed by the Tribunal in the impugned award from paragraphs 9 to 20 under Issue No. 1.

The District Magistrate, Sagar, had in exercise of the powers u/s 74 of the Motor Vehicles Act, 1939 (for short hereinafter referred to as ''the Act'') passed an order which is Exh. p/284 that the Sagar-Rehli road through University campus shall remain closed for motor trucks. It was also appeared in the evidence of Narayan Prasad Bajpai (PW1), para 1, that at the entrance gate of the University campus on a board it was notified that the road was closed for heavy vehicles and that board was there on the date of the incident also. This part of the evidence is unchallenged.

It is undisputed that the claimant Rajiv Kumar Dubey was going ahead of the truck when he was knocked down. Driver Bhagsingh (DW 1) has deposed that Rajiv Kumar Dubey was going by the left side of the road and was on the flank of the road when the accident took place, it has also appeared in the deposition of Bhagsingh (DW 1) that at the place of the accident there is always a swarm of University students and students in the groups of two to four were there at the time of the accident. He has further deposed that the place of accident was open on all sides and is a junction of five roads and that the Sagar-Rehli road on which the accident took place is about 30'' wide. It is also undisputed that the left side bumper of the truck hit the claimant and the back rear wheel of the truck ran over the legs of the claimant. Narayan Prasad Bajpai (PW 1) and Mahesh Kumar (PW 2) have deposed that the truck was coming when it knocked down the claimant at a speed of 70 to 80 kilometers. The defence, as was set up by the Respondents in their joint written statement on the question of rash and negligent driving was that the accident in question did not take place because of any rash and negligent driving on the part of the driver but because the claimant suddenly appeared on the road from behind the khoka (a mobile shop made with wooden planks) and dashed against the truck; that despite the fact that the driver had honked the horn and applied the brake, the accident could not be avoided. This defence theory has been negatived by driver''s own evidence. He has, in paragraph 9 of his statement, deposed that the baniyan tree and the khoka were on the press road which is in a different direction and away from the place of accident. In such a situation, it can hardly be believed that the claimant suddenly appeared from behind the khoka and the driver could see him only when he was one meter away from the truck.

It cannot be gainsaid that it is a trite rule of the road that a driver is expected to be extra cautious while driving on a road abutting to schools, colleges and hospitals, etc. Looking to the situation of the place also and the width of the road, it can well be inferred that had the driver not been negligent and had not been driving rashly the incident could have been avoided.

The Tribunal has in the aforesaid paragraphs of the impugned award elaborately discussed the evidence and evaluated it on the question of negligence. We concur with the conclusion of the Tribunal that the accident took place as a result of rash and negligent driving. Thus, when we are affirming the findings of the Tribunal, we do not consider it necessary to restate the effect of the evidence and re-iterate the reasonings of the Tribunal.

We then turn to the consideration of the question whether the accident took place when the truck was detained for doing a sovereign act. The decision of this question need not detail us much. It is now more or less a settled position as to what type of acts can be categorised as sovereign acts, albeit it is not possible to catalogue them all. In a Division Bench decision of this Court, The ''Ad Hoc'' Committee, the Indian Insurance Company Association Pool Vs. Smt. Radhabai, one of us G.P. Singh, J. (as he then was), who spoke for the Court, adroitly making a survey of the Supreme Court decision and on taking their conspectus said:

...traditional sovereign functions are the making of laws, the administration of justice, the maintenance of order, the repression of crime, carrying on of war, the making of treatise of peace and other consequential functions. Whether this list be exhaustive or not, it is at least clear that the socio-economic and welfare activities undertaken by a modern State are not included in the traditional sovereign functions.

To iterate, it is an admitied position that truck was carrying ration for the soldiers at Dhana camp. It has also appeared in the evidence of Bhagsingh (DW 1) that the job of carrying ration for the military personnel at the camp is done by private contractor also. He has further reiterated this version by stating that the very job that he was doing at the relevant time, i.e., of carrying ration is done by private contractor also. It is patent that this job of carrying ration was in the peace time. In such a situation, it cannot be said that the act or the job was in performance of a sovereign activity. Had the position been that the ration was being carried during the time of war at the war front for the military personnel, the position would have been different. In the present setting of the circumstances of the instant case, the act cannot be held to be a sovereign activity. While dealing with the question of vicarious liability in regard to the accident involving a military truck, the question of immunity of the Union Government on this very ground of sovereign activity had come up for consideration before two Division Benches of this Court and the plea of the Union Government has been negatived. In Union of India v. Neelam Dayaram 1979 M.P.L.J. 732 , it has been held:

Where the work can be and is being undertaken by private individual there is nothing peculiar about it to be called a sovereign activity. When the military truck while it was going for bringing vegetables for the prisoners of war causes injury it cannot be said to be engaged in any sovereign activity. The Union of India cannot be absolved from liability for the tortious act of its servant. (Head-note)

In Leelawati Kohli v. Union of India Misc. First Appeal No. 211 of 1975; decided on 29.2.1980, also it has been held that military truck involved in an accident while on Government duty for fetching furnitures for military camp, it cannot be said that the work for which the truck was detained was a sovereign activity. The learned Counsel for the Union of India had, in support of his argument that the truck was detailed for the performance of sovereign activity, referred to us Sections 14, 28, 39 and 94 of the Motor Vehicles Act. It would suffice to say that these sections do not have any bearing on the question whether the job for which the truck was detailed was sovereign activity or not? These sections relate to the matter or registration and compulsory insurance etc. of the motor vehicles belonging to the Central Government. Relying on these very sections in Leelawati''s case Misc. First Appeal No. 211 of 1975; decided on 29.2.1980, it was argued on behalf of the Union Government that the activity of carrying furnitures to military camp by a military motor truck was a sovereign activity and that has been negatived by the Division Bench. The question being covered by the said Division Bench decision it is not necessary for us to dilate in detail on the point with reference to these sections.

In the light of the foregoing discussion, we repel the contention advanced on behalf of the Union Government, the Respondent No. 1, that the job for which the truck was employed was sovereign activity and therefore, the Union Government is immune for its vicarious liability.

We now turn to the amount of compensation. The Tribunal has awarded the amount as detailed herein below:

Rs.

(i) Compensation for pain and suffering 15,000/-

(ii) Compensation for loss of amenities 10,000/-

(iii) Compensation for loss/delay in study 2,000/-

(iv) Compensation for delay in entering career 5,000/-

(v) Compensation for loss of earnings 15,000/-

(vi) Special damages for treatment 15,000/-

The nature of injuries received in the accident by the claimant are detailed in the case-sheet (Exh. P/14). Then there is the evidence of the two doctors, one Dr. P.K. Dhagat (PW 4) and another Dr. O.P. Sharma (PW 5). Dr. P.K. Dhagat (PW 4) has stated that the claimant received fractures in both the femurs; that there was a compound fracture in right leg and all muscles were torn and damaged. He has proved the case-sheet of the claimant (Exh. P/24). He has further stated that the claimant would take two years for recovery and even thereafter there would be shortening in both the legs; that due to considerable loss of muscles there would be no support to the limbs and therefore, he would not be able to walk even after he was completely healed and that the claimant would be invalid for all his life. Another doctor, Dr. O.P. Sharma (PW 5), whose statement was recorded on 26th of April, 1976, has deposed that he had treated the claimant who was admitted in the Bhopal hospital; that the claimant had fractures of both thigh bones and there was sloughing of the skin and muscles on the right thigh. This doctor, as deposed by him, had examined the claimant on the morning of the day his deposition was recorded. He further deposed that the claimant will not be cured in all his life and will remain invalid and there may be recurring infection; that there was remote possibility that there may be an amputation of right leg; that the claimant was bodily infected in the right leg and that there was probability that the infection will spread even to vital parts of his body like kidney which may mean death and from that point of view the expectancy of life of the claimant may also decrease. He further deposed that the infection was continuing even on the date of his examination. In the cross-examinations of these two doctors, there is nothing brought out to impair their respective testimony. From the evidence of these doctors, it is unequivocally established that the claimant has become a physical wreck for all his life. Looking to his physical condition, we are of opinion that the amount of compensation awarded by the Tribunal in respect of certain items indicated hereinafter, is in-adequate and an increase is essential. The claimant at the time of accident was aged about 17 years. Looking to his physical condition consequent to the injuries received in the accident, as indicated herein above, he has been deprived of various amenities, a bright future and pleasures of a married life. All the time he would survive, he would be leading a life under the tortures of pain, mental sufferings and agony and that he would be required to spend for treatment even after the passing of the award.

The amount of compensation in respect of items (ii), (iii) and (iv) awarded is Rs. 17,000 in our opinion, it should be raised to Rs. 22,000; the compensation in respect of item No. (v), i.e., compensation for loss of earnings, should be raised from Rs. 15,000 to Rs. 20,000 and the compensation in respect of item No. (i), i.e., compensation for pain and suffering, is raised from Rs. 15,000 to Rs. 20,000. In this view, the total increase in the amount of compensation in our view comes to Rs. 15,000.

As we have earlier stated that the counsel for the claimant had confined his claim for enhancing the amount for compensation awarded by the Tribunal inclusive of the expenses incurred for treatment after the passing of the award and as indicated hereinabove, we have already allowed the increase of Rs. 15,000, it is not necessary to allow the application under Order 41, Rule 27 filed on behalf of the claimant and to further delay the disposal of the matter. We, therefore reject this application under Order 41, Rule 27 of the Code of Civil Procedure.

In the result, the appeal is partially allowed. The amount of compensation awarded by the Tribunal is altered and is raised from Rs. 60,000 to Rs. 75,000. This amount shall be paid to the claimant after deducting the amount of Rs. 3,000 already paid to him as indicated in the impugned award, with interest at the rate of six per cent per annum from the date of application and costs of this Court as well as of the Court below by the Respondents. The cross-objection is also dismissed.