R.L. Batheja vs Puran and Others

S.S. Sodhi, J.—Shri R.L. Batheja, Executive Engineer, and Shri R.K. Kapur the Superintending Engineer, both sustained injuries when the car HYA 2378 they were travelling in was involved in an accident with a truck No. RRK 8647. This happened on January 16, 1980, at about 2.15 p.m. near village Kairon on the crossing between the Behal-Lohani road and the Juhi-Tosham Road.

The Tribunal held this to be a case of composite negligence with both the driver of the car as also that of the truck to be equally to blame. A sum of Rs. 10,000 was awarded as compensation to Shri R.L. Batheja and Rs. 15,000 to Shri R.K. Kapoor for the injuries suffered by them.

The claim in appeal here is for enhanced compensation.

Taking up the case of Shri R.L. Batheja, a reference to the material on record would show that he was, in the first instance, examined by P.W. 1 Dr. Rajinder Kumar at the Primary Health Centre, Kairon. He complained of pain in the lumbar region, in the abdomen and in the chest. After X-Ray, there was a fracture observed in the lumbar region and this injury was consequently declared grievous. Besides this, there were also multiple abrasions of variable sizes all over the forehead. The injured was thereafter taken to the General Hospital, Bhiwani, where he was treated by Dr. Subhah Khanna. It was the testimony of Dr. Khanna that Shri Batheja had a fracture of the 4th lumbar vertebra. He remained as an indoor patient in the hospital for about 15 days until he was discharged on January 29, 1980. While in hospital, he also had to be given a self-retaining catheter as he complained of not being able to pass urine. On account of the fracture in the lumbar region, he was advised to wear a steel jacket.

Next to note is the testimony of P.W. 8, Dr. P.S. Maini, Professor and Head of the Department of Orthopaedics Surgery at the Medical College, Rohtak. According to Dr. Maini, the fracture of the 4th lumbar vertebra had healed when he examined Shri Batheja on June 5, 1980, but there was pain on bending and when lifting weights. In his opinion, this was a permanent disability to the extent of 15 per cent.

The claimant, Shri R.L. Batheja, when he came into the witness-box, deposed that as a result of the injuries suffered by him in this accident, he still feels pain in his right leg and he has to use a steel jacket for the four months of winter season. Further, he stated that though he was attending to his normal work, he did so with discomfort. Included in his claim for compensation was a sum of Rs. 3,000 to Rs. 4,000, which he stated, he had spent as out of pocket expenses on his treatment. A claim was also made for special diet and the expenditure on the guests who had been coming to see him when he was in the hospital.

It will be seen that the injuries that Shri R.L. Batheja suffered in this accident have left him with a permanent disability as a consequence of which he cannot lead a very normal life. There can also be no manner of doubt that he must have undergone considerable pain and suffering on account of these injuries. Some amount must also have been spent by him on his treatment and special diet. Taking an overall view of the nature and extent of the injuries suffered and their consequences, both temporary and permanent, the compensation awarded cannot but be held to be wholly inadequate. There is ample warrant for enhancing it to Rs. 30,000.

Turning now to the case of Shri R.K. Kapur, he must indeed be held entitled to the amount claimed, namely, Rs. 40,000. A reading of the testimony of P. W. 8 Dr. P.S. Maini would show that he had suffered fractures of the pelvic bone on the right side which have resulted in shortening of the right leg by about 3/4". He also had a partially stiff right hip which was a permanent disability to the extent of about 20 per cent. Further, he deposed that Shri Kapur had to be kept under traction for about six weeks and even after his discharge, he had been coming for physiotherapy.

The claimant P.W. 10 R.K. Kapur deposed that on account of the injuries suffered, he remained in the hospital from January 16, 1980, to April 8, 1980. After his discharge too, he had to go to the hospital for exercises, but he could not walk or move on his own and had to be taken there in a car and this state of affairs continued till September, 1980. It was only then that he could start walking with the help of a stick. He stated that his pain was still continuing. He too mentioned that he had incurred considerable expense on his medical treatment and special diet.

Such being the nature and extent of the injuries suffered by the claimant, they cannot but be described as serious resulting in considerable impairment in his enjoyment of the amenities of life. He must also have undergone a great deal of pain and suffering. There can thus be no escape from awarding him Rs. 40,000, as claimed.

Here, Mr. Munishwar Puri appearing for the respondent-insurance company with which the car HYA 2378 was insured, sought to contend that no liability in respect of the compensation payable to the claimants could be fastened upon the insurance company as the injured claimants were in the car merely as gratuitous passengers. The contention being that the insurance company was not required to and had not covered liability in respect of such passengers. Mr. C.B. Kausik, appearing for the driver and the owner of the car, on the other hand, contended that both the claimants were in the car at the time of the accident in the course of their official duty, that is under the contract of their employment and the insurance company was clearly liable to indemnify the driver and owner of the car in respect of the compensation awarded to them (the injured).

In support of his contention, Mr. Munishwar Puri sought to rely upon the judgment of this court in National Insurance Co. Ltd. v. Smt. Rani Bai Bajaj [1972] PLR 878 besides Kishan Sarup Thaper v. Dr. Lakhbir Sood [1983] ACJ 130 : [1984] 57 Comp Cas 472(HP) and Chander Mohan and Others Vs. D.C. Kapnr and Others, None of these authorities is, however, applicable to the present case as neither of them related to persons being carried in the vehicle under any contract of employment. The apt and proper precedent here is provided by the judgment of the Bombay High Court in Gopibai Ghanshamdas Advani v. Pood Corporation of India [1983] ACJ 340; [1986] 59 Comp Cas 660 (Bom), where the deceased, while on official duty, was killed while returning in the car of his employer. It was held that the insurance company was clearly liable as he was being carried in the car by reason of and in pursuance of his contract of employment. In the present case too, the accident had occurred when the two injured claimants were accompanying the managing director of their Corporation who had come for inspection. This being so, the insurance company must indeed be held liable for the compensation awarded.

The compensation payable to the claimant Shri R.L. Batheja is accordingly hereby enhanced to Rs. 30,000 and in the case of Shri R.K. Kapur to Rs. 40,000. The claimants shall be entitled to the amount awarded along with interest at the rate of 12 per cent. per annum from the date of the application to the date of payment of the amount awarded. The respondents shall be jointly and severally liable for the compensation awarded. They shall, of course, be entitled to rateable contribution inter se.

In the result, both the appeals are hereby accepted with costs. Counsel''s fee Rs. 300.

The cross-objections filed by the respondent, United India Insurance Company, are dismissed.