Vinay Kumar Sharma (deceased through L.Rs.) and Others vs Mahesh Kumar Joshi and Others

Abhay Gohil, J.—This is a claimant''s appeal u/s 173 of the Motor Vehicles Act seeking enhancement of compensation against the award dated 10.5.2000 passed by the Second Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 39 of 1993.

Brief facts of the case are that on 21.6.1993 appellant was going towards his house on his scooter No. MP 07-6247. Vinay Kumar Sharma was sitting as pillion rider. The moment scooter reached near Loco side, one truck No. MPZ 1856 was coming from the opposite side, which was being driven by Mahesh Kumar Joshi, respondent No. 1 rashly and negligently, came on wrong side and dashed the scooter. As a result of this accident the appellant as well as Vinay Kumar Sharma sustained severe injuries. The matter was reported to Police Station, Padav, where crime was registered, the matter was investigated and charge-sheet was filed. Appellant injured also filed claim petition before the Claims Tribunal. During trial, Tribunal recorded positive finding in favour of the appellant that he sustained injuries in the accident caused by vehicle No. MPZ 1856.

It is submitted by the learned Counsel for the appellants that during pendency of this appeal claimant Vinay Kumar Sharma has expired, therefore, in view of this development and looking to the Full Bench decision in case of Smt. Bhagwati Bai and Another Vs. Bablu @ Mukund and Others, , now the appellants-claimants are only entitled for loss to estate and, therefore, this appeal will not abate and shall be heard only on the question of loss to estate.

Mr. B.N. Malhotra, learned Counsel appearing for claimants, submitted that in this case there is no dispute about the accident because of rash and negligent driving of the government vehicle No. MPZ 1856, which was being driven by Mahesh Kumar Joshi. It is also not disputed that on account of the accident the appellant injured Vinay Kumar Sharma received severe injuries in his left hand and also received lacerated wounds on the other parts of the body. He remained hospitalised in J.A. Group of Hospitals from 21.6.1993 to 8.9.1993. Discharge Certificate is Exh. P1. There was fracture of both the bones in the right leg and right leg was also amputated below knee. It was stated that 4-5 operations of his leg were performed, thereafter he was taking treatment from Dr. Middha. He also remained hospitalised in the Garg Nursing Home. Medical certificate is Exh. P60. He has only produced medical bills to the tune of Rs. 13,864 from Exhs. P3 to P38 and the Tribunal has awarded the same amount in the head of treatment, though total compensation of Rs. 1,36,364 was awarded to him.

The contention of the learned Counsel for the appellants is that as the claimant-injured remained hospitalised for more than three months and suffered amputation of the right leg below knee and as per the medical evidence he suffered 50 per cent disability in the right leg. In his evidence Vinay Kumar, AW 1, has stated that he has spent around Rs. 45,000 to Rs. 50,000 on his treatment. Some of the bills could not be produced as the bills were not obtained by the family members and also not kept preserved for filing in the court.

We have considered this fact that there was amputation of right leg below knee; claimant-injured remained hospitalised for more than three months; he had also taken treatment in the private Garg Nursing Home and the operation was also done by the private doctor; Tribunal has not awarded any other amount in the head of medical treatment except the bills which were produced in the court. Learned Counsel for the appellants submitted that if an amount of Rs. 25,000 is further enhanced in this head, he would be satisfied.

Though Mr. Brijesh Sharma, learned Government Advocate for the respondent State, submitted that Claims Tribunal has awarded reasonable compensation to the appellant, but we are of the view that the Tribunal has not awarded adequate compensation in the head of medical treatment. Therefore, as submitted by Mr. Malhotra, the amount of Rs. 25,000 is reasonable amount, which should be enhanced in the head of loss to estate, looking to the nature of injuries.

In a case of personal injury on the death of the claimant except as regards the estate of the claimant no doubt the other claims will abate on the death of claimant and they would not survive to his legal representatives. Under the law of Torts in personal injury cases damages may be claimed for-(a) non-pecuniary loss as well as (b) pecuniary loss to the injured. In the head of ''non-pecuniary loss'' following damages can be claimed: (i) pain and suffering; (ii) loss of amenities, and (iii) loss of expectation of life; and, the ''pecuniary loss'' may cover the following damages: (i) consequential expenses; (ii) cost of care and medical expenses; and (iii) loss of earnings. Certainly the question of loss to estate will come within the category of pecuniary loss. This item will include expenses incurred for taking the claimant to hospital purchase of medicines or equipment needed for his treatment, fees of private doctors if consulted and similar other expenses and if the claimant will require medical aid in future also, compensation for that too also can be allowed. To decide this question as to what is loss to estate in a particular case is the matter of evidence.

In case of Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958 ACJ 179 , the Supreme Court has considered that under Fatal Accidents Act, 1855, what are the pecuniary losses. Hon''ble Supreme Court quoted the words of Lord Wright, who addressed himself to the same question and answered it thus:

The injury suffered by the individual from death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source.

The Supreme Court also held that the principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of Lahore High Court in case of Secretary of State v. Gokal Chand AIR 1925 Lah 636. In that case, Sir Shadi Lal (the then C.J.), observed thus:

The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate.

In the case of Ramesh Chandra v. Madhya Pradesh State Road Trans. Corporation 1983 ACJ 221 , Justice G.P. Singh (as he then was), after considering the various decisions of the foreign courts has held as under:

We are clearly of opinion that damages recoverable for loss to the estate of the deceased u/s 2 of the Fatal Accidents Act must include damages for loss of earnings of the lost years, assessed in the manner laid down by the House of Lords in case of Gammell v. Wilson 1982 ACJ 409 (HL, England).

In view of the aforesaid discussion, it is held that medical expenses incurred by the deceased on his treatment can be claimed under the head of pecuniary loss to the estate of the deceased resulting from the accident. Accordingly, this appeal is partly allowed. It is directed that claimants who are the legal heirs of the appellant shall also be entitled for additional amount of Rs. 25,000 with 6 per cent interest thereon from the date of filing of this appeal.

Consequently, this appeal is partly allowed as indicated above.