Shri Shyam Singh Vs. Sh. Jhangru Parshad and ors. - Court Judgment

S.K. Mahajan, J.

1. This order will dispose of the appeal filed by the appellant for enhancement of compensation for the injuries received by him in a road accident caused by the rash and negligent driving of the truck bearing registration No. DLG 272 by respondent No. 1 and owned by respondent No. 2. The truck at the relevant time was insured with respondent No. 3. A few facts relevant for deciding the appeal are :

On 4th September, 1987 at about 10.15 AM the appellant, who was a boy of 13 years of age at that time, was going on his cycle to the school. He was studying in Government School, Chhatarpur, Mehrauli, New Delhi. All of a sudden his cycle was hit by the offending truck from behind as a result of which he fell down on the road and grievous injuries were suffered by him all over the body. The accident, according to the appellant, was caused entirely due to the rash and negligent driving of the truck by its driver. As a result of the accident, the appellant sustained compound fracture in the right arm, fracture of his collar bone, grievous injuries in both his jaws and he also lost some of his teeth. The appellant allegedly remained under treatment for about six months and was allegedly disabled to the extent of 55% of the whole body. For the injuries sustained by the appellant in the said accident, he filed a petition claiming compensation from the respondents. It was alleged in the petition that because of the accident, the appellant suffered grievous injuries mentioned above and disability to the extent of 55% of the whole body. It was also stated that not only that he sustained physical injuries but his nervous system was also damaged to the extent that he had to be admitted in the mental diseases hospital, Shahdara for treatment. The appellant was stated to be under regular treatment for almost five years and had alleged to have spent more than Rs. 20,000/- on his treatment. Alleging that the appellant had been using his right hand for writing but because of accident the appellant lost his right hand and is now forced to write with his left hand which has become a permanent impediment in his normal life. It is submitted that the appellant has lost grip of his right hand and with his left hand he cannot write at that pace and he also cannot write properly. It is submitted that because of the accident and because of the breakdown of his nervous system, he could not continue his studies for two years and thus precious time of his life was lost. The appellant, thereforee, claimed a sum of Rs. 1,50,000/- as compensation for the injuries suffered by him.

2. In the written statement, the respondents denied that the accident was caused due to the rash and negligent driving of the truck by its driver. After the pleadings were completed, the parties led evidence and after hearing the parties, the Tribunal vide the impugned award held that the accident was caused entirely due to the rash and negligent driving of the truck by its driver and the appellant having received injuries in the said accident, the respondents were liable to compensate the appellant. Since the truck was insured with the insurance company, the compensation was directed to be paid by the insurance company. On the quantum of compensation, the Tribunal held that no evidence had been produced to show the extent of disability suffered by the appellant and as he had suffered some injuries, a sum of Rs. 15,000/- was awarded towards pain, shock and sufferings and another sum of Rs. 1,000/- was awarded towards medicine, conveyance, etc. Thus a total compensation of Rs. 16,000/- was awarded in favor of the appellant. As already mentioned above, the appellant has filed this appeal for enhancement of compensation awarded by the Tribunal.

3. It is contended by learned counsel for the appellant that because of the injuries suffered by the appellant, the appellant has lost grip of his right hand and is not able to write and work with that hand and with the left hand he cannot work properly and fluently as he used to work with the right hand. It is also submitted that he had suffered severe injuries as are clear from the discharge certificate issued by the hospital and the Tribunal has erred in not relying upon the disability certificate placed by the appellant on record. It is submitted that the Tribunal has clearly erred in awarding a sum of Rs. 15,000/- only towards pain, shock and sufferings and another sum of Rs. 1,000/- for medicines and conveyance, etc.

4. I have heard learned counsel for the parties and have also gone through the record of the trial Court and I find merits in the contention of learned counsel for the appellant that the compensation awarded by the Tribunal is wholly inadequate. As per the discharge slip and disability certificate issued by the hospital, the appellant had bronchialPlexus injury Rt. Upper extremity and he had 55% disability of the whole body. The appellant was present in Court during the hearing of this appeal and from a look at him, it was apparent that he had lost the grip of his right hand and could not work with the said hand. Though the disability certificate has not been proved by producing the doctor in Court, however, the discharge slip as well as the disability certificate have been issued by the Government hospital and this Court cannot ignore the same especially for the reason that admittedly the appellant had received injuries in the accident caused due to the rash and negligent driving of the truck by its driver. As observed by the Supreme Court in N.K.V. Bros. (Private) Limited Vs . M. Karumai Ammal and Others, : [1980]3SCR101 , 'a second aspect which pains us is the inadequacy of the compensation or undue parsimonypracticed by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation.' The Court, in my opinion, should be sensitive to the sufferings of the person who die or receive injuries in a road accidents and should not deny just compensation to the victims of the road accident and should not succumb to niceties, technicalities and mystic maybes. From the statement of the appellant and from the evidence on record, it is clear that the appellant had lost two years of education inasmuch as he could not study for two years because of the injuries suffered by him and he had to be adequately compensated for the same. The appellant was being treated for almost six months regularly and the award of a sum of only Rs. 16,000/- is, thereforee, a cruel joke not only upon the appellant but also upon the administration of justice. It has clearly been held by this Court in Rattan Lal Mehta Vs . Rajinder Kapoor and Another : 1996IAD(Delhi)552 that as for pecuniary damages in injury cases, one has to compute loss of earnings up to date of trial, prospective loss of earnings, taking into account i) probable future earnings, as if there was no accident; ii) potential future earnings after the accident, and find the difference; and iii) fix the period of incapacity. One can also go into the value of perquisites including loss of free board or lodging, loss of house keeping capacity, loss of career, prospects of marriage, medical and hospital expenses, nursing services at home, employment of substitute, etc. Voluntary assistance by friends, relations, etc. cannot be deducted. Collateral benefits from life insurance, gratuity, provident fund cannot be deducted. It was also held that there can be no discrimination between the rich and poor victims for evaluating non-pecuniary damages. A few observations of this Court in the aforesaid judgment would be useful to be reproduced as under :-

'In cases relating to personal injury, the future loss of earnings to the plaintiff can be worked out on an actual basis as on the last date of trial inasmuch as the victim is alive as on that date. This can be easily computed. So far as loss of earnings after last date of trial is concerned, a multiplier has to be selected in injury cases from the statutory Table appropriate to the age of the injured person as on the last date of trial. This is because of the fact that the injured person is alive and available at the trial and the question of applying a survival rate as per census figures arises only for the period after the last date of trial and this principle is accepted in all countries and strictly followed by the Gujarat High Court in several decided cases.

To give example, if a victim was 22 on the date of accident and died, the multiplier in death cases is to be one appropriate to the age of 22. In an injury case, if the victim was 22 at the time of accident and 26 at the time of last date of trial, the loss of earnings up to the last date of trial is one capable of exact calculation. The mortality rate is relevant only for the period after the last date of trial and a multiplier from the Table suitable to 26, the age at the last date of trial, has to be selected. Thereafter, both the amounts can be added up.'

5. Though the accident had taken place much earlier to the insertion of second Schedule to the Motor Vehicles Act, however, the Schedule can also be of relevance in respect of accidents which have occurred before 14th November, 1994 when it came into force. In terms of the Schedule, to arrive at just compensation payable to the injured in case of disability arising out of non-fatal accident, the victim is entitled to be paid the loss of income, if any, for actual period of disablement. In case of permanent partial disablement, such percentage of compensation which would have been payable in the case of permanent total disablement by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation. In terms of the Schedule, injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per Schedule-I under the Workmen's Compensation Act. Though as per the certificate issued by the hospital, there was 55% disablement of the whole body, however, even as per Schedule I of the Workmen's Compensation Act, the loss of hand or of the thumb and four fingers of one hand or amputation from below tip of colcannon, the disability or percentage of loss of capacity is 60%. In case of loss of thumb, the disability is 30% and disability for the loss of four fingers of one hand is 50%. As already mentioned above, in the present case the appellant had lost grip of his hand as the hand was crushed in the accident. In my opinion, percentage of loss of earning capacity because of this disability cannot be less than 40%. The appellant will have to live through whole of his life with this disability. This Court, thereforee, would not be in error in awarding a sum of Rs. 30,000/- as compensation for the disability caused to the appellant. The appellant has suffered and is continuing to suffer because of the injuries suffered by him in the said accident. I, thereforee, award another sum of Rs. 30,000/- towards pain and suffering. The appellant was under treatment at least for a period of more than six months. He must have not only incurred expenses for going to hospital but he must have also spent money on medicines, etc. I, thereforee, award another sum of Rs. 10,000/- towards medical expenses and conveyance, etc.

6. For the foregoing reasons, this appeal is allowed, award is modified and the respondents are directed to pay a sum of Rs. 70,000/- to the appellant as compensation for the injuries sustained by him in the accident caused due to the rash and negligent driving of the truck by respondent No. 1. The appellant will also be entitled to interest @ 9% per annum on the enhanced compensation from the date of filing the petition before the Tribunal till realisation. Since the offending vehicle was insured with the insurance company, the compensation shall be paid by the insurance company. Appellant will also be entitled to costs of this appeal assessed at Rs. 2,000/-.