Dr. (Mrs.) Sudha Nangia and Etc. Vs. Ibrahim Etc - Court Judgment

1. These two appeals have been filed against a common award of Motor Accident Claims Tribunal dated October 22, 1973. The appellant in F. A. O. No. 32/ 74 has been awarded compensation of Rs. 11,286/15 P from Respondents 1 to 3 jointly and severally and two months' time has been granted for depositing the amount andfailing to deposit the said amount by two months the award was to carry interest @ 6% per annum from the date of the award till the date of realisation. The appellant in appeal No. 32/74 Dr. Sudha Nangia has filed this appeal praying for enhancement of the compensation where Respondent No. 3 before the Tribunal, M/s. Vanguard Insurance Co. Ltd. has come up in appeal No. 37/74 praying that the award made against it should be set aside inasmuch as the insurance company and the driver and owner of the scooter which was involved in accident with the truck insured with the appellant was liable for compensation as the accident took place on account of gross and negligent driving of the scooter by the scooter-driver and not on account of rash and negligent driving by the driver of the truck.

2. Facts of the case, in brief, are that on October 29, 1969, Dr. Sudha Nangia along-with her husband Dr. Vijay Nangia were proceeding on a three-wheeler scooter No. DLR 9466 on ring road and the scooter had reached the crossing of Ring Road at Maya Puri Industrial Area that suddenly a truck No. DLL 4812 being driven by Respondent No. 1 came at a high speed and it struck the said scooter and also dragged the scooter for about 25 feet. The scooter had overturned and the appellant and her husband had received injuries in that accident. The said truck is admittedly owned by Respondent No. 2.

3. The factum of accident having been caused between the said two vehicles is not in dispute. The short question which arose for decision was whether the accident was as a result of rash and negligent driving by the driver of the truck or it was as a result of rash and negligent driving of the three wheeler scooter by Respondent No. 1 or whether both the drivers were rash and negligent in driving their respective vehicles which resulted in the said accident? The facts that the truck was owned by Respondent No. 2 and it was insured with the insurance company, appellant in the other appeal, are not in dispute and the facts that the three wheeler was owned by Sh. Jagdish Chander-respondent No. 5 and was being driven by Sh. Surinder Kumarrespondent No. 4 and the same was insured with insurance company-respondent No. 6 are not in dispute.

4. Dr. Vijay Nangia, husband of the claimant, appeared as PW7 and claimant Dr. (Mrs.) Sudha Nangia appeared as PW8 and deposed as to the facts pertaining to the said accident. They stated that they had hired that three wheeler scooter for going to Safdarjung Hospital and the scooter had reached the ring road and was driven at a speed of 40-45 kilometre per hour and when it reached the main crossing of Maya Puri Industrial Area that the truck in question was noticed coming at a high speed of 45-50 kilometre per hour from Maya Puri Industrial Area side and it struck the scooter on the front part of it and scooter was overturned and was dragged to a distance of about 20-25 feet. They did depose that even scooter driver was driving at high speed and was requested not to drive so fast but still he did not pay heed and continued to drive at such high speed. The driver of the three wheeler scooter Sh Surinder Kumar also deposed on similar lines except that he stated that he was not driving at any high speed and he had already reached the crossing when the truck came suddenly and struck the scooter and the truck was being driven in rash and negligent manner. The driver of the truck has not been examined.

5. The accident had taken place at the crossing. According to the Traffic Rules the vehicle coming from the main road i.e. Ring Road, had a prior right of crossing and the vehicle which was to come from the side roads had to give way to the vehicles going on the main road. The truck driver, in my opinion, was grossly negligent and rash in driving the truck at such a high speed when approaching the said crossing and paying little heed to the vehicles which were going on the main ring road through the said crossing. It is not possible to hold that the scooter driver had in any manner contributed to the said accident by driving the scooter in a normal way on the ring road. The scooter driver could not have realised in normal circumstances that any vehicle would come at a fast speed from the side road and cause the accident. So, thelearned Tribunal was right in coming to the conclusion that the accident had occurred as a result of rash and negligent driving by the driver of the truck.

6. As a matter of fact the learned counsel for the appellant in FAO No. 37/74 had not been able to advance any arguments in support of the appeal that the accident was the result of any contributory negligence on the part of the driver of the three-wheeler scooter. I affirm the finding of the Tribunal that the accident took place as a result of rash and negligent driving of the truck by truck driver.

7. As far as quantum of compensation awarded by the Tribunal is concerned; the learned counsel for the appellant-claimant has only challenged the general compensation granted by the Tribunal which is to the tune of Rs. 10,000/-. At the time of the accident the claimant was working in Safdarjung Hospital in the pay scale of Rs. 350-800 and on account of accident she had to remain on medical leave and earned leave from October 29, 1969 to January 10, 1970 and also from April 27, 1970 to July 25, 1970 on account of maternity leave and again from July 26, 1970 to August 20, 1970. It appears that at the time of the accident the claimant was pregnant.

8. PW 4 Orthopedic Surgeon, who had treated the claimant for her injuries, deposed that the claimant had injuries on the right hip joint, low back region, left gluteal region and scalp and there was history of unconsciousness for a short time following the accident and thereafter the Radiologist found a fracture of superior public ramous on the right side and she remained under his treatment and was advised complete bed rest and from January 12, 1970, she was given the fitness certificate for resuming her duties but was advised to have only light work.

9. The learned counsel for the claimant has argued that on account of the injuries the claimant had to undergo caesarean operation for giving birth to a child. However, PW 4 had not given any specific opinion that the caesarean operation was necessitated on account of the injuries suffered by the claimant in that accident. The doctor who hadperformed the caesarean operation had not been examined. So, it is not possible to hold that the claimant had to undergo caesarean operation on account of injuries suffered by her in the accident. The doctor had, of course, opined that because of the injuries suffered by the claimant she was likely to suffer pain for some period.

10. Dr. K. S. Mathur, Radiologist PW 5, proved on record the X-ray film Ex. PW 5/1 and also the X-ray report which is in his handwriting and he stated that the claimant had suffered the fracture of superior ramous of right pubic bone. He deposed that because of such fracture the patient may have some deformity of pelvis but no evidence was brought on record to prove that in fact, the pelvis had deformed on account of such fracture. He also expressed the possibility of X-ray radiation affecting the bone marrow but there is no evidence that in fact the claimant had suffered any such effect from radiation on account of undergoing the X-ray.

11. PW 7 and his wife-claimant PW 8 had, however, deposed that on account of the said fracture suffered by the claimant, she had been having continuous pain and had been taking medicine for the said purpose.

12. The claimant had also filed an application C. M.665/91 under O. XLI R. 27 of the Civil P.C. for permission to lead additional evidence to prove that the claimant had been suffering pain on account of the said injuries caused in that accident and had been taking treatment and wanted to prove two medical certificates issued by the two separate doctors in that connection. It is not necessary to allow the claimant to lead any additional evidence in appeal inasmuch as the evidence led before the tribunal also clearly indicated that the claimant was suffering pain despite being cured of the fracture and even during her statement before the tribunal she mentioned that she has been continuously suffering pain and that statement was recorded on May 22, 1971 i.e. 1-1/2 year after the accident.

13. The question to be decided is whether the compensation of Rs. 10,000/- as generalnon-pecuniary compensation is just and fair keeping in view the facts and circumstances of the case. It is well settled principle of law that what is to be awarded in such motor accident cases is the just and fair compensation and not punitive damages. While awarding just and adequate compensation the tribunal has to keep in view the pain, the shock and the suffering and the loss of amenities and enjoyment of life suffered by the injured due to the accident. The Tribunal must also keep in view as to whether the fact (effect) of such injury is likely to continue for many years or not. In the present case while awarding general damages the tribunal appears to have not kept in view that the claimant was having continuous pain even up to the date of her giving statement before the tribunal which statement remained unchallenged in cross-examination. The tribunal also has not kept in view that because of her accident which necessitated bed rest for a few months the claimant had been deprived of enjoyment of life besides suffering mental shock and pain. Keeping in view all these facts, there is a scope for enhancing the general damages.

14. In Chander v. Bhawani Singh, 1989 Acc CJ 106 , which was also a case of claimant having suffered fracture in the pelvis and she had suffered physical pain; the compensation was enhanced to Rs. 54,000/-However, in the said case there was permanent disability and there were two fractures, one to the pelvis and other to the left forearm besides some other injuries.

15. Counsel for the appellant-claimant has cited Pest Control (India) Pvt. Ltd. v. Ramanand Devrao Hattangadi, 1990 Acc CJ 130, where the general damages to the tune of Rs. 1,00,000/- were awarded for pain and suffering and loss of amenities and expectations of life. The facts of the said case are distinguishable. In that case the claimant had suffered permanent disability i.e. paraplegia below the waist. Such is not the case here. Similarly, award of Rs. 1,00,000/- as general damages in Anugrah Sharma v. Balbir Singh, 1992 Acc CJ 284 is based on peculiar facts of that case. There the accident occurred in 1977 and there wasshortening of leg by 3/4' which was a permanent disability.

16. Keeping in view the facts of the present case I am of the view that a compensation of Rs. 20,000/- would have been fair and just compensation for the pain and suffering and loss of enjoyment in life by the claimant.

17. Counsel for the appellant has argued that interest ought to have been levied from the date of the claim petition till realisation. S. 110 CC was introduced in the Motor Vehicle Act, 1939, vide Amendment Act 56 of 1969 with effect from March 2, 1970. The provision is not retrospective. This provision now entitles the tribunal to award interest on the compensation to be awarded by the tribunal. Similar Provo vision introduced in Payment of Gratuity Act 39 of 1972 introduced by amendment came up for consideration in Charan Singh v. Birla Textiles, : (1989)ILLJ250SC and it was held that such a provision for levying interest is prospective in nature. In Smt. Amarjit Kaur v. Vanguard Insurance Co. Ltd., : AIR1982Delhi1 , it has been held that interest cannot be awarded by a Tribunal except where statutorily provided. Similar view was expressed in Smt. Chameli Wati v. Delhi Municipal Corporation of Delhi, : AIR1982Delhi575 . It was made clear in this judgment that future interest from the date of the award could be levied.

18. In view of the above discussion, I dismiss the appeal F.A.O. No. 37/74 leaving the parties to bear their own costs while I allow appeal F.A.O. No. 32/72 and enhance the compensation by Rs. 10,000/- The compensation so awarded be deposited within two months from today and in case the same is not so deposited the said enhanced compensation shall carry interest at 12% per annum from today till realisation.

19. For orders, see judgment of even date in F. A. O. No. 32/74, Dr. (Mrs.) Sudha Nangia v. Ibrahim etc.

20. Order accordingly.