Union of India and Others vs Mousami Sharma

Mansoor Ahmad Mir, Judge

Both these Civil First Miscellaneous Appeals are directed against the judgment and award dated 26th of December' 2006 (for short hereinafter

impugned award) passed by Motor Accidents Claims Tribunal, Poonch in claim petition titled Miss Mousami Sharma v. Union of India and Ors.,

whereby an amount of Rs. 8,77,027.29 paisa with interest @ 6% p.a came to be awarded in favour of the claimant and against Union of India

from the date of filing of the claim petition till its realization, on the grounds taken in the appeals.

The Appellants have questioned the quantum of the compensation in both the appeals.

Grievance of Union of India-Appellant-judgment debtors is that the compensation awarded is on the higher side while the grievance of the

claimant-award holder is that the compensation awarded is meager.

This judgment will govern both the appeals.

BRIEF FACTS:

The claimant Miss Mousami Sharma became the victim of a vehicular accident on 2nd of May' 2000 caused by Mr. Rajinder Kumar, driver of

Union of India while driving Tipper bearing No. 97E61795 (GREF) rashly and negligently at old Bus stand, Poonch. F.I.R No. 47 under Sections

279/337 Ranbir Penal Code (for short R.P.C) came to be lodged and registered against the said driver. Claimant sustained injuries on legs, eyes,

uterus and stomach. Both the legs of claimant were fractured, left eye was totally damaged rendering her blind by one eye for ever, uterus and

stomach were ruptured and also sustained serious injuries on the right eye. She was taken to District Hospital, Poonch and was referred to

Government Medical College Jammu for treatment. She was unable to move for a pretty long time, her uterus was removed, she was unable to

pass urine in normal course, and she has become handicapped forever. Petitioner claimed Rs. 10 Lacs as compensation in the claim petition before

the Tribunal.

Union of India- Judgment debtor No. l & 2, non applicant before the Tribunal, filed the objections and resisted the claim petition.

Following issues came to be framed:

Whether the accident has been caused by the Respondent No. 3 at Bus stand Poonch on 2.5.2000, while driving the vehicle No. 97E61795

due to rash and negligent driving? OPP 2. In case issue No. l is proved in affirmative, whether the Petitioner received grievous injuries as a result of

the said accident and suffered permanent disablement of eye, leg and uterus etc. ? OPP 3. In case issue No. 2 is proved in affirmative, how much

compensation is payable to the Petitioner from the Respondent?

Whether the Petitioner has no cause of action to maintain the present petition? OP Rs.

Whether the Respondents 1 & 2 are vicariously liable to pay the compensation for the act of the Respondent No. 3.

To what relief the Petitioner is entitled to? OPP

The claimants have examined P Ws Ashok Kumar, Gulshan Kumar, Bakshi Surjeet Kumar, Dr. Sakhi Mohd., Dr. Anil Bhalla and Dr. Vipin

Bhanotra. Statement of claimant was also recorded.

Union of India-Judgment debtor have examined P Ws T.D. Sharma, P.K. Mitra and Mohd Akbar in support of the case.

All the witnesses examined by the claimant have deposed that the driver has driven the offending vehicle 'Tipper' belonging to GREF, rashly

and negligently and caused the accident on the 2nd of May' 2000. Claimant-Petitioner is the victim of the said accident, rendered her blind by left

eye, sustained fractures on both the legs, injuries on right eye, stomach and her uterus came to be removed, which has made her life hell for ever.

She is not in a position to contract marriage.

Union of India-judgment debtor-Appellants in appeal No. 61 /2007 have not disputed the factum of accident causing grievous injuries to the

claimant due to rash and negligent driving of their employee-driver.

Viewed thus, claimant has proved that Sh. Rajinder Kumar, driver of the offending vehicle belonging to Union of India, has driven the offending

vehicle in a rash and negligent manner and caused the accident causing grievous injuries to the claimant.

In the given circumstances, the findings returned by the Tribunal vis-a-vis issues No. 1,2,4 & 5 merit to be upheld and are accordingly upheld.

The dispute is only on account of adequacy of compensation, as discussed hereinabove. Thus, determination of issues 3 & 6 is required.

Dr. Sakhi Mohd, Dr. Anil Bhalla and Dr. Vipin Bhanotra have categorically deposed that the claimant is blind by left eye due to leucomatous

corneal opacity and was also operated for cataract in right eye with intraocular lens implant and the said disability is permanent in nature. She was

operated for blunt trauma abdomen. She has bilateral fracture of pubic bone with vaginal wall tear, rupture of urinary bladder with haemotoma of

spleenic flexure and masentary haemotoma. She had also developed ortho vaginal fistula for which she was taken to Sanjay Gandhi Post Graduate

Institute of Medical Sciences, Lucknow. The disability of right eye is 50% which is at risk to develop post operative complications at any time later

and the percentage of disability can increase.

Dr. Vipin Bhanotra has also deposed that due to bilateral fracture of pubic bone rupture of urinary bladder and mesentery haemotoma will be

having a bad obstetrical history. The medical certificate issued by the medical Board of doctors Stand proved and marked as EXPW-AB.

Question is as to how in the given circumstances, the compensation can be assessed?

Apex Court in a case titled as R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, has laid down the tests. It is apt to

reproduce para 9 of the said judgment herein:

Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as

pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being

calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In

order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant;

(i) medical attendance; (ii) loss (iii) other material loss. So far non-pecuniary damages are concerned, they may include;

(i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future;

(ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be

able to walk, run or sit;

(iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened;

(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

It was further, held that when ever the Tribunal is required to fix an amount of compensation in case of an accident, it involves some guess

work, some hypothetical considerations, some amount of sympathy linked with the nature of the disability caused. But all aforesaid elements have

to be viewed with objective standards. While assessing damage, the Court cannot base its opinion merely on speculation or fancy enough

conjectures to some extent are inevitable.

The compensation can be awarded under two heads i.e., pecuniary damages and non-pecuniary damages. Pecuniary damages are the medical

attendance, loss of earning and other material loss and non-pecuniary damages are mental and physical shock, pain and sufferings, loss of

amenities, loss of future expectancy of life, inconvenience, discomfort, disappointment, frustration and mental stress.

It is proved and admitted fact that the claimant was admitted in the District hospital, Poonch, Government Medical College, Jammu and Sanjay

Gandhi Post Graduate Institute of Medical Sciences, Lucknow. By guess work it can be safely held that she would have spent a lot of money on

her treatment. But, the claimant-Petitioner has not proved by leading oral or documentary evidence that how much amount she spent on her

treatment during that period. It appears that claimant has filed vouchers and a railway ticket for Rs. 870/-. The Tribunal has awarded Rs.

97027.29 paisa under the head, which is too meager. A hand full amount under the head attendant and other expenses incurred during the period

she was admitted in the hospitals at Poonch, Jammu and Lucknow was to be granted, but the claimant has not led any evidence. Thus reluctantly,

the compensation awarded under the head treatment is maintained.

In the given circumstances, she cannot get a match for her, is not in a position to contract marriage and that has rendered her life hell for ever.

Thus this Court has to make guess work in order to award just compensation under the head non-pecuniary damages. Though, money is not the

substitute and cannot make her life comfortable, the amount of Rs. 5.00 Lacs is the just compensation, accordingly is maintained.

She has also lost amenities of life. Keeping in view the fact that Rs. 5 Lacs came to be awarded under the head loss of marriage prospects of

life, I deem it proper to reduce Rs. 1 Lakh under the head loss of amenities. Thus, Rs. 1 Lakh is the just compensation under the head loss of

amenities.

Claimant-Petitioner has undergone pain and agony and has to undergo pain and agony throughout her life. Thus, an amount of Rs. 80.000/-

awarded under the head Pain and Agony, while exercising guess work is maintained.

Claimant-Petitioner is also entitled to interest @ 6% from the date of award till the full and final realization.

The impugned award is modified and both the appeals are disposed of. Registry is directed to release an amount of Rs. 7,77,027.29 paisa

with interest @ 6% from 26th of December' 2006 till its realization in favour of the claimant strictly in terms and conditions as contained in the

impugned award. Excess amount, if any, be released in favour of the Union of India by way of ""Payee Account"" cheque.

Both the appeals are accordingly, disposed of.

Registry to send down the record along with a copy of the judgment.