Umesh Vs. Abdul Khan and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]sections 128 & 168: [a.k. patnaik, c.j. & a.m. sapre & s.k. seth, jj] contributory negligence on part of motorcyclist pillion rider driver of motor cycle carrying two pillion riders in violation of section 128 held, a plain reading of section 128 of the act would show that sub-section (1) casts a duty on the driver of a two wheeled motor cycle not to carry more than one person in addition to himself on the motor cycle. similarly, rule 123 of the rules mentions the safety devices to be provided while manufacturing a motor cycle. these provisions obviously are safety measures for the drivers and pillion riders and breach of such safety measures may amount to negligence but such negligence will not amount to contributory negligence on the part of the pillion rider or composite negligence on the part of the driver of the motor cycle, unless such negligence was partly the immediate cause of the accident or damage suffered by the pillion rider. if the damage in the accident has not been caused partly on account of violation of section 128 of the act by the pillion rider of the motor cycle, the pillion rider is not guilty of contributory negligence. similarly, if the damage suffered by the pillion rider has not been caused partly on account of violation of section 128 of the act by the driver, the pillion rider cannot put up a plea of composite negligence by the driver. in other words, if breach of section 128 of the act, does not have a causal connection with the damage caused to the pillion rider, such breach would not amount to contributory negligence on the part of the pillion rider of the motor cycle or composite negligence on the part of the driver of the motor cycle. therefore, violation of section 128 of the act, per se, by a motor cyclist does not rise a presumption of contributory negligence on his part. similarly, violation of section 128 of the act per se does not amount to contributory negligence on the part of the pillion riders. a pillion rider cannot put up a plea of composite negligence by the driver of the motor cycle, if the driver only violates section 128 of the act. [national insurance co. ltd., v smt uma tiwari 2007(1) manisa 204 (m.p.) (d.b) & kanti devi sikarwar & ors v om prakash & ors. 2007 (1) mpwn 88 (d.b) overruled.] - but as the injured can be awarded only monetary compensation, the courts make an endeavour as best as they can to quantify non-pecuniary damage in terms of money having regard to the injury and the damage resulting from it. in the process of application, the wide discretion that the courts exercise in making awards of compensation, like any other judicial discretion, has canalized itself into a set of rules. it is only by adherence to these self-imposed rules that the courts can decide like cases in like manner and bring about a measure of predictability of their awards.s.k. dubey, j.1. this order shall also govern the disposal of misc. appeal no. 217 of 1992 (santosh v. abdul khan) as both these appeals arise out of the same accident.2. the claimants have filed these two appeals against the award dated 30.3.1992 passed in claims case nos. 119 and 124 of 1989 by the ivth additional member, motor accidents claims tribunal, indore. the two claimants seek enhancement of the amount of compensation awarded by the tribunal. the claimants who were the pedestrians were dashed by truck no. mkb 961 on 2.6.1989 at about 10 p.m. as a result of which the two claimants received multiple injuries. the injury received by claimant umesh, aged 15 years was a fracture in right radius and ulna who remained under treatment and plaster for 1 1/2 month. a steel plate was inserted to join the fracture. from the medical evidence the permanent disability was 20 per cent but the tribunal assessed the permanent disability at 5 per cent.3. claimant santosh, aged 14 years, received the abdominal injury whereby his two intestines 13' long were damaged. he also received a fracture in pelvis resulting in limping and shortening of right leg by 1'. santosh remained under treatment in m.y. hospital, indore, for about three months. the permanent disability from the medical evidence was assessed at 50 per cent while the tribunal recorded a finding that no serious/grievous injury was caused to the claimant santosh because the record of treatment in m.y. hospital was not legally proved by examining the doctors who treated the claimant santosh. after holding that the driver was rash and negligent in driving the vehicle, the tribunal awarded compensation of rs. 19,500/- to the claimant umesh under all heads while rs. 9,000/- to claimant santosh. aggrieved of that, the claimants have preferred their respective appeals for enhancement of the compensation.4. mr. j.m. punegar, counsel for the appellant and mr. a.h. khan, counsel for insurance company, heard.5. after hearing the learned counsel, i am of the opinion that the amount of compensation so awarded deserves to be enhanced. it is true that claimants could not prove the record produced by the clerk of the m.y. hospital by examining the doctors who treated, but from the record, i.e., bed-head ticket and treatment chart of m.y. hospital, it is clear that dr. s.k. ohari, professor of surgery and dr. bhargava treated claimant umesh. the treatment continued for long. umesh was operated upon by the aforesaid doctors. similarly, santosh was admitted in m.y. hospital on 3.6.1985 and was discharged on 30.8.1985 which is evident from the admission ticket. dr. y.k. vyas performed intestinal operation upon santosh. the treatment chart of the two claimants runs into 44 pages.6. the task of assessment of damages for non-pecuniary damage in personal injury actions is a difficult one; for human suffering resulting from any serious bodily injury cannot from its nature be valued in terms of money. but as the injured can be awarded only monetary compensation, the courts make an endeavour as best as they can to quantify non-pecuniary damage in terms of money having regard to the injury and the damage resulting from it. in the process of application, the wide discretion that the courts exercise in making awards of compensation, like any other judicial discretion, has canalized itself into a set of rules. these rules are : (1) the amount of compensation awarded must be reasonable and must be assessed with moderation; (2) regard must be had to awards made in comparable cases; and (3) the sums awarded should to a considerable extent be conventional. it is only by adherence to these self-imposed rules that the courts can decide like cases in like manner and bring about a measure of predictability of their awards. these considerations are of great importance if administration of justice in this field is to command the respect of the community.7. a division bench of this court in mangilal v. pramod 1988 acj 307 (mp), while considering a case of personal injury has observed that effort should be made by the court to see that the compensation awarded is 'just'. it is true that a claimant should not be permitted to make a fortune out of the misfortune that has befallen him but as pointed out by the supreme court in concord of india insurance co. ltd. v. nirmala devi 1980 acj 55 (sc), the determination of quantum of compensation must be liberal, not niggardly since the law values life and limb in free country in generous scales.8. keeping in view the above principles i am of the opinion that in both the cases if the claimants could not examine the doctors who treated and performed the operation, they cannot be denied just compensation as the injuries suffered by them cannot be disputed. therefore, the claimant umesh ought to have been awarded compensation under the head of general damages in the sum of rs. 25,000/- instead of rs. 15,000/- and for pain and suffering rs. 5,000/- instead of rs. 1,500/- besides the amount of rs. 3,000/- awarded for the medical expenses. thus, the total amount of compensation to which claimant would be entitled comes to rs. 33,000/-. in the case of claimant santosh the tribunal has awarded compensation on a lower side. looking to the nature of his injuries and shortening of leg, the compensation ought to have been rs. 25,000/- under the head of general damages and for pain and suffering rs. 10,000/- and towards expenses of treatment he must get rs. 3,000/-. thus, total amount of compensation to santosh will come to rs. 38,000/-.9. in the result, both the appeals are allowed. the award of the tribunal is modified to the extent as mentioned above. the insurance company shall deposit the said amount under the modified award within a period of two months with interest at the rate of 12 per cent per annum from the date of application till the deposit or adjustment of the amount already deposited with its proportionate interest. the insurance company shall also bear costs of both the appeals. counsel's fee rs. 500/-(five hundred), if certified.