Neelappagouda Ramangouda Patil and ors. Vs. Kariyappa Gouda - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [ram mohan reddy, j] quantum of compensation bodily injury - held, bodily injury is to be treated as deprivation entitling the claimant to damages, the amount of which varies according to the gravity of the injury. deprivation due to injuries brings with it there consequences, viz., (i) loss of earning and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; (iii) loss or diminution in full pleasures and joys of living. further, although it is not possible to equate money with human suffering or personal deprivation, the court has duty to make an attempt to award damages so far as money can compensate the loss. while considering deprivation, the court should have regard to the gravity and degree of deprivation as well as degree of awareness of the deprivation. in awarding damages in personal injury cases, the compensation awarded by the court should be substantial and it should not be merely a token. section 168; quantum of compensation held, while deciding the quantum of compensation to be paid to a person for personal injury suffered by him, the court is bound to ascertain all considerations which will make good to the sufferer of the injuries as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. further, in granting compensation for personal injury, the injured has to be compensated for (i) pain and suffering;(ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity or in some cases for both; and (v) medical treatment and other special damages. in personal injury actions, the two main elements are the personal loss and pecuniary loss. section 168; [ram mohan reddy, j] compensation speeding motor vehicle coming from opposite direction at a high speed and in a rash and negligent manner dashed against a maruti car causing grievous injuries to the occupants and death of one person elbow joint of the right hand of the appellant was grievously injured mact awarded rs.10,000/- towards pain, shock and sufferings; rs.20,000/- towards grievous injuries; rs.4,000/- towards conveyance and attendant charges; rs.36,500/- towards medical expenses and rs.8,000/- towards loss of earnings for 2 months totalling to rs.78,500/- - appeal for enhancement held, the tribunal practiced miserliness in awarding compensation of rs.78,500/- under various heads, and the non-award of compensation towards disability, amenities of life, loss of future earning due to disability; marriage prospects tantamounts to denial of justice. the joys of life will have gone from the appellant, he cannot perhaps ride a bicycle and if he can kick a football, cannot catch one and deprived of the usual forms of recreation which appeal to the ordinary healthy man. the impairment to the right upper arm causing disability of 35% naturally interferes with normal conduct of life or prevents sexual relation, warranting substantial damage on that ground. in fact, the appellant, young and energetic with great ambitions and expectations in life wanting to earn more money, due to the impairment, has occasioned loss of an enjoyable or interesting career too. the disfigurement in the form of a scar as notice by the doctor in his testimony is more serious when the appellant becomes very conscious of the disfigurement and avoids social occasions. the elbow joint in the upper limb in a human frame is of utmost importance, not that the other bones constituting the frame are not. with the partial permanent injury to the upper limb of the appellant, he will have to endure the disability for the rest of his life. in the result, the compensation was enhanced to rs.3,40,420/- with interest at 6% p.a. (rs.50,000/- towards loss of amenities of life, happiness, frustration; rs.35,000/- towards loss of marriage prospects; rs.15,000/- towards conveyance, attendant charges, food and nourishment; rs.50,000/- towards pain, shock , suffering and two fractures to the right upper arm; rs.97,920/- towards loss of future earning due to disability; rs.16,000/- towards loss of earning during laid off period; rs.15,000/- towards future medical expenses; rs.25,000/- towards loss of expectation of life and rs.36,500/- towards medical expenses). - (7) against this order, the decree-holder appealed and it was argued before the district judge who heard that appeal that the civil judge had failed to implement the consent order which had been previously made in the appeal according to which one of the questions to be considered was whether there was a likelihood of the creation of a fragment if a partition was made in the ordinary way or, whether on or more lands could not be allotted in their entirety to the decree-holder. whatever may be the correct view to make the in regard to the partition to be made by the collector under section 54 of the code of civil procedure, no one can say that if that partition has not been made or commenced, the court has no power to recall the papers transmitted to the collector if they have been wrongly transmitted or direct when a collector refuses to make a partition, a different kind of partition or a partition which was directed to be made by the decree or by an order like the one which was made by the lower appellate court on the earlier occasion in this case.(1) the short question involved in this case is where the remand made by the district judge to the civil judge of a matter relating to execution of a partition decree was improperly made. the material facts are these :(2) in a suit for partition, the plaintiff was declared to be entitled to a third share in the properties which framed the subject matter of the suit. when an execution application was presented for execution of that partition decree, the civil judge dismissed the execution application on the ground that the partition, if made, would create, a fragment prohibited by the bombay prevention of fragmentation and consolidation of holdings act, 1947.(3) from this order made by the civil judge, there was an appeal to the district judge and in that appeal there was a consent order and one part of that consent order was that the question whether the decree-holder could be allotted one or more lands in their entirety should be considered by the executing court.(4) when the matter went back to the executing court, the papers were transmitted to the collector so that there may be a partition of the properties under section 54 of the code of civil procedure. such transmission became necessary since the lands are agricultural lands paying land revenue to the government.(5) on receipt of the records, the collector refused to make the partition being of opinion that the partition would create a fragment in disobedience to the provisions of the act.(6) when the papers came back to the civil judge, he made an order directing the papers again to be sent to the collector so that the collector might determine the compensation which might be paid to the decree-holder for the share which had been allotted to him by partition decree.(7) against this order, the decree-holder appealed and it was argued before the district judge who heard that appeal that the civil judge had failed to implement the consent order which had been previously made in the appeal according to which one of the questions to be considered was whether there was a likelihood of the creation of a fragment if a partition was made in the ordinary way or, whether on or more lands could not be allotted in their entirety to the decree-holder. this argument was accepted by the district judge directing the collector to determine the compensation payable to the collector in accordance with the directions to the consent order after a consideration of all the aspects of the case.(8) it is against this order of remand made by the district judge that this appeal is preferred.(9) it was argued before me by mr. malimath that since the civil judge made order directing the collector to determine the compensation payable to the decree-holder (plaintiff), it was no longer within the competence of anyone and not even of the district judge to retrace the step so taken and direct the collector to make a partition in accordance with the terms of the consent order. the postulate was that since a partition made under section 54 of the code of civil procedure by the collector is incapable of rectification by the court which directed that partition to be made, for the same reasons which oust the jurisdiction of the civil court in that way, instructions once given to the collector for partition to be made in a particular way can never be recalled or varied and that partition should be made only in accordance with the instructions so communicated whether or not the partition has been completed.(10) it is not necessary for me on this occasion to investigate into the correctness of the proposition that once a partition is made by the collector under section 54 of the code of civil procedure that partition so made is beyond the superintendence of the civil court and that in no case that court can exercise jurisdiction of the rectification of any kind of mistake committed by the collector in making the partition under section 54 of the code of civil procedure. on this question it is really not necessary for me to express any opinion in this case, this case one in which the collector has not yet made any partition. indeed, the collector refused to make a partition on the ground that there would be a fragment and it is that refusal which necessitated the issue of instructions by the civil judge to the collector that there should be a determination of compensation.(11) mr. malimath did not dispute the power of the civil court to issue that instruction and to direct a partition in some other way than that which was originally proposed. if mr. malimath cannot dispute as he did not dispute that the civil judge had the power to direct the collector to make a determination of the compensation to be paid to the decree-holder, that concession which malimath had to make contradicts his argument that once the papers leave the hands of the court for being transmitted to the collector for making a partition, the court would become devoid of power to control and regulate the partition thereafter whatever, may be the circumstances in which the exercise of that power may become necessary.whatever may be the correct view to make the in regard to the partition to be made by the collector under section 54 of the code of civil procedure, no one can say that if that partition has not been made or commenced, the court has no power to recall the papers transmitted to the collector if they have been wrongly transmitted or direct when a collector refuses to make a partition, a different kind of partition or a partition which was directed to be made by the decree or by an order like the one which was made by the lower appellate court on the earlier occasion in this case. if as in this case the civil judge did not issue instructions to the collector in accordance with the consent order but issued some other kind of instruction at variance with that consent order, the civil judge had undoubtedly the power to recall those erroneous instructions contradicted the notice of those instructions contradicted in the consent order. even if he did not, it is clear that the appellate court, when it is brought to its notice that the collector was asked to make a partition in a manner entirely at variance with the decree, has the power to reverse the civil judge and to direct the civil judge to issue the instructions prescribed by the decree or by any subsequent order or other proceeding.(12) any other view would leave the parties entirely at the mercy of the collector and in conceivable cases if the collector refuses to make a partition unreasonably or perversely, the acceptance of the argument propounded by mr. malimath would lead to the devastating consequence that the decree would become dead or incapable of execution, the court not having the power to undo the harm or mischief caused by the proceedings of the collector. a view which may lead to such perilous consequences does not commend itself to me.(13) i, therefore, dismiss this appeal with costs.( 14) appeal dismissed.