Taj HussaIn Vs. Misru Khan and ors. - Court Judgment

Excerpt:
- - however, it clearly shows that atleast the claimant (child) cannot be said to be negligent at all. in the case at hand, the offending truck was being parked at the place of accident and where children were playing and the truck was being taken on reverse, then certainly extra precaution had to be taken by its driver to save pedestrian like child of 12 years of age, who has no traffic sense like elders, as such striking by the truck at that place on the boy cannot be said to be contributory negligence of injured boy. money is no good to him. yet judges and juries have to do the best they can and give him what they think is thus far. no wonder they find it well nigh insoluble. 18. in instant case, medico-legal reports like injury report, discharge and other medical certificates have been produced on record clearly demonstrate that claimant had sustained multiple injuries and became 100% permanent disability on account of said accident. he has suffered physical as well as mental agony, sufferings, and has been operated upon. three lacs in monthly income scheme of post office and rest of it in fdr with nationalised bank for a term of six years in name of claimant who will be entitled to receive monthly interest on post office mis/fdr account supra as well as full amount of mis/fdr on its maturity. 23. it is made clear that no premature encashment shall be permitted in respect of fixed deposits, however, on an application being made to the tribunal and it being satisfied about urgency of any need and absence of financial resources to meet any urgent financial need may permit loan or advance or premature encashment by a reasoned order.ajya rastogi, j.1. the claimant has filed appeal (cma no. 230/01) for enhancement of compensation awarded and cross-appeal (cma no. 2148/2000) has been filed by non-claimants for reduction of amount awarded by motor accident claims tribunal, ajmer ('tribunal') in mact case no. 1005/99 (166/95). since both arise out of award dated 8.9.2000 are accordingly disposed of by this common judgment.2. claimant taj hussain, who was 12 years of age and student of iii standard, had sustained serious injuries on 22.10.1994 as a result of which he became permanently disabled in an accident which took place by offending truck no. rnz 8738 being driven rashly and negligently by mishru khan (driver) with high speed and without following traffic rules, nearby the filter pump on fair sagar road, ajmer. offending truck and owned by the public health engineering department of government of rajasthan. as per claim petition, the accident was so serious that claimant sustained grievous injuries culminating into his both the lower limbs permanently paralysed and he became permanently disabled, for which a certificate was also issued to him holding his 100% permanent disability. in the claim petition, claimant claimed compensation of rs. 15,30,000.3. respondent nos. 2, 3, and 4 filed their reply to claim petition but no reply was filed by respondent no. 1 driver of offending truck (mishru khan d.w. 1). he merely supported the reply of other respondents. in para 28 of the reply, the respondents inter alia submitted that offending truck was just rolling down near filter pump to unload goods by parking at filter pump station, and when offending truck came nearby the claimant while saving himself ran away and was hit by the truck and it was alleged that claimant was at fault and there was no negligence on the part of driver of offending truck.4. statements of mishru khan (truck driver-d.w. 1) and chaturbhuj (pump driver-d. w. 2) were recorded. both of whom completely denied factum of alleged accident as having taken place, and both stated in their statements that claimant was hit by valve at the nearby pump station and sustained injuries and have shown their complete innocence about accident, if at all taken place with offending truck.5. first information report (ex. 6) was lodged by father of claimant, alleging inter alia that while claimant was going with his father from masjid situated at delhi gate, ajmer after study, and when reached near market at fair sagar road and while going on footpath nearby filter pump, claimant was hit by offending truck, being driven at high speed and not given any indication, causing grievous injuries to him, as detailed above.6. after taking into consideration evidence led by either party on record, including statements of pump driver and offending truck driver, the tribunal recorded a finding that claimant sustained injuries from the offending truck and both, claimant and offending truck driver, were held negligent in the proportion of 60:40. so far as pecuniary and non-pecuniary losses are concerned, the tribunal determined compensation at rs. two lacs and rs. 10,000 towards expenses incurred in medicar treatment, as claimant was held contributory negligent to the ratio of 40%, a deduction whereof was made to compensation computed, ibid, and awarded compensation of rs. 1.26 lacs with interest @ 12% per annum from the date of filing of claim petition till its actual payment.7. against the award dated 8.9.2000, the state non-claimant has filed cma no, 2148/2000 assailing findings recorded of contributory negligence and determination of compensation on the grounds that father of claimant was not an eye-witness of the accident and whose alone statement is not sufficient to record findings of contributory negligence while credibility of statements of offending truck driver and pump driver could not have been shaken by claimant on the basis of which, the claimant alone can be held liable for the injuries sustained in the accident and not the non-claimants. as regards determination of compensation, mr. d.d. sharma, asst. govt. advocate contends that the amount awarded by the tribunal is on a very higher side and requires interference by this court.8. per contra, in cma no. 230/01 filed for enhancement of compensation, mr. j.p. gupta, counsel for claimant contends that the compensation awarded is not adequate and there was no contributory negligence and that apart medical expenses were not adequately compensated despite receipts whereof were produced and exhibited on record before the tribunal in support of claim petition, inasmuch as despite his 100% permanent disability on account of the accident, claimant has not been awarded adequately towards physical pains and suffering throughout life, especially when on account of permanent disability, he has to lead whole life in misery and frustration this aspect has not at all been considered by the tribunal while determining compensation.9. the record was called for. i have pondered over rival contentions of the parties and with their assistance, perused material on record. taj hussain (claimant) was 12 years of age and student of class iii standard. his father mohd. hussain appeared as a.w. 1 and stated that his son while coming from school towards masjid near delhi gate on 22.10.1994, at about 10 o'clock when reached nearby the filter pump station on fair sagar road, offending truck owned by non-claimant (department) struck him from behind, and on account of this accident, his son sustained grievous injuries on his waist, head and hand, inasmuch as his intestines were damaged and both of his legs were fractured and he was paralysed, and to get medical treatment he was taken to various places including jaipur, udaipur, mandsaur, but despite whatever possible effort within his means, his son could not be saved from 100% permanent disability and as a result of this accident his son became totally disabled and handicapped. he also stated that he lodged first information report at the police station about the accident in question. in all, documents (ex. 1 to ex. 127a-q), referred to in the award, have been produced on record in support of claim petition.10. in counter, statements of mishru khan (d.w. 1), offending truck driver and chaturbhuj (d.w.2)(filter pump driver) were recorded and both of them have completely denied the accident having taken place. but in their statement it has come in evidence that the offending truck was parked at the corner of pump station and while claimant was playing along with other children near filter pump he was hit by one of the valves on his head on account of which he had sustained injuries. however, looking to such total converse statements on record, the tribunal recorded a finding of fact that the claimant had sustained injuries from offending truck. site inspection note (ex. 7) where the accident took place has been placed on record. even from the examination-in-chief of both the defence witnesses, named above, they have admitted their presence at the site of accident along with offending truck which was being parked by taking on reverse at the filter pump campus where presence of children including injured claimant has not been disputed at the time of incident. in this state of evidence on record, where the finding has been recorded by the tribunal about the injuries being sustained in the said incident, by offending vehicle and acquittal in criminal case registered for selfsame accident was also apparently on account of contradictory statement recorded in criminal case and that apart, for a while if it is considered that children were playing there in water at the place of incident and on account of sudden horn they got scared and the child fell there, in that eventuality, the offending truck driver ought to have taken extra precautions while getting the truck parked to taking the truck on reverse for parking, in order to save the children. however, it clearly shows that atleast the claimant (child) cannot be said to be negligent at all.11. that apart, i find support from the view expressed by division bench of karnataka high court in r. srinivasa v. j.m. parasivamurthy air 1976 karn. 92, and in my considered opinion too, a very young boy cannot be guilty of contributory negligence. an older child may be; but it depends upon circumstances. the court observed as under:.a judge should only find a child guilty of contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for his or her own safety; and then he or she is only to be found guilty if blame should be attached to him or her. a child has not the road sense or the experience of his or her elders. he or she is not to be found guilty unless he or she is blame-worthy. in this case, srinivasa being 6 years old at the time of the accident, cannot be blamed for contributory negligence. on the other hand, in this case the evidence shows that the driver of the lorry struck the boy when he was standing just near the footpath and that was a clear case of rash and negligent driving.(emphasis added)12. in the instant case, claimant being about 12 years of age and student of iii standard cannot be said to be of such an age as reasonably to be expected to take precautions for his own safety, and he had no road sense or experience of his elders. therefore, he is not to be found guilty of contributory negligence in the facts situation of the case.13. it is trite that compensation on account of accident arising from the use of motor vehicles can be claimed under common law even without the aid of a statute. that apart, provisions under the motor vehicles act, 1988, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation unless any one of exceptions would apply.14. negligence is only one of species of causes of action for making a claim for compensation in respect of accidents arising out of the use of motor vehicles. there are other premises for such cause of action. even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident?15. the respondents have produced two witnesses, i.e., driver of the offending truck who was definitely interested person and similarly other witness being employed along with truck-driver in phed of the state as pump driver at filter station where accident took place, who too was interested person to support of his co-employee. there is no basis whatsoever for the tribunal to have recorded finding to the extent of contributory negligence on the part of injured boy. if offending vehicle strikes a pedestrian, either there is no negligence on the part of the driver or driver is totally negligent. there are very rare chances of any contributory negligence for pedestrian. in the case at hand, the offending truck was being parked at the place of accident and where children were playing and the truck was being taken on reverse, then certainly extra precaution had to be taken by its driver to save pedestrian like child of 12 years of age, who has no traffic sense like elders, as such striking by the truck at that place on the boy cannot be said to be contributory negligence of injured boy. the tribunal has erred in recording finding on contributory negligence and put the blame on the claimant boy to the extent of 40%.16. now i advert to the consideration for quantum of compensation. in r.d. hattangadi v. pest control (india) pvt. ltd. : [1995]1scr75 , the apex court in para 11 observed as under:11. in the case ward v. james, 1 (1965) al 1 er 563, it was said-although you cannot give a man so gravely injured much for his lost years, you can, however, compensate him for his loss during his shortened span that, during his expected 'years of survival'. you can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. but how can you compensate him for being rendered a helpless invalid? he may, owing to the brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. he has lost everything that makes life worthwhile. money is no good to him. yet judges and juries have to do the best they can and give him what they think is thus far. no wonder they find it well nigh insoluble. they are being asked to calculate the incalculable. the figure is bound to be for the most part a conventional sum. the judges have worked out a pattern and they keep it in line with the changes in the value of money.17. a legal position, which emerges is that there cannot be any dispute that compensation has to be just and fair but that always depends upon circumstances of each case. so far as pecuniary damages are concerned, they are to be based on evidence adduced and proved on record in due process of law but as regards ascertainment of non-pecuniary loss in the form of special damages under different heads, they can be adjudged only on the basis of hypothetical considerations keeping in view nature of injuries and loss caused to the injured/victim of the accident, besides amount of sympathy linked with nature of disability caused. therefore, what will be just and reasonable compensation is always left to be weighed by objective wisdom of the court.18. in instant case, medico-legal reports like injury report, discharge and other medical certificates have been produced on record clearly demonstrate that claimant had sustained multiple injuries and became 100% permanent disability on account of said accident. that apart, claimant has produced ex. 13 to ex. 127 in order to prove that he spent lot of expenses for getting his medical treatment in different hospitals and in statement, his father stated that more than rs. 80,000 has been spent. but even the tribunal after taking into consideration did not accept his claim and without examining this significant aspect for pecuniary loss caused to him, awarded merely a sum of rs. 10,000 and rs. two lacs towards non-pecuniary losses.19. the evidence, somehow has not been discussed by the tribunal in details, it is clear from record that young boy of 12 years had suffered permanent disability--photos produced were not denied. father of claimant has appeared as a.w. 1 and proved documents supporting his claim for compensation. there is no material contrarily produced on record as such father of claimant (a.w. 1) is to be believed and award of compensation has to be modified.19. claimant young boy of 12 years had suffered and has to suffer of being paralysed as result of 100% permanent disability. he has to suffer for whole of life because of his paralytic and limping state, which is a disqualification for him throughout life. the claimant would live with frustration and disappointment and remain depended upon others; and will need help even for his day-to-day activities. he has suffered physical as well as mental agony, sufferings, and has been operated upon. his father stated that about rs. 80,000 have been incurred in medical treatment while taking him to hospital at different places including jaipur, udaipur and mandsaur. medical bills somehow have been produced. it cannot be said that apart from medical bills of medicines, there was no other expenditure. for about nine months, he took medical treatments from doctors. in view of what has been considered based on material on record, in my opinion, claimant is entitled for rs. 50,000 for medical expenses and rs. 20,000 for special diet and other care and help from other persons during medical treatment.20. as regards non-pecuniary loss and special damages under this head, after taking into consideration various reasons, stated supra, especially of his 100% permanent disability and age of 12 years, in my considered opinion, minimum compensation which the claimant is entitled for to get at least rs. 3,25,000, as held by this court in k.m. priti v. up state road trans. cororation 2001 (2) tac 681, and for injuries, pains, and agony, in my opinion, further amount of rs. 50,000 is to be added. in all the claimants are entitled to compensation of rs. 4,45,000 [rs. 3,25,000 (+) rs. 50,000 (+) rs. 50,000 (+) rs. 20,000] under aforesaid heads instead of rs. 1.26 lacs awarded by the tribunal.21. consequently, this appeal is allowed and the claimants are entitled for enhanced compensation for rs. 3,19,000 [rs. 4,45,000 (rs. 3,25,000 (+) rs. 50,000 (+) rs. 50,000 (+) rs. 20,000) minus rs. 1,26,000 awarded by tribunal], which shall also carry interest @ 6% p.a., from the date of filing of claim application till its actual payment. enhanced compensation with interest shall be deposited by the respondents through a/c payee bank draft/pay order before the tribunal within two months.22. the tribunal is further directed to deposit the enhanced amount of compensation for rs. three lacs in monthly income scheme of post office and rest of it in fdr with nationalised bank for a term of six years in name of claimant who will be entitled to receive monthly interest on post office mis/fdr account supra as well as full amount of mis/fdr on its maturity.23. it is made clear that no premature encashment shall be permitted in respect of fixed deposits, however, on an application being made to the tribunal and it being satisfied about urgency of any need and absence of financial resources to meet any urgent financial need may permit loan or advance or premature encashment by a reasoned order. to the above extent, impugned award stands modified.accordingly, cross-appeal (cma no. 2148/2000) filed by state department is dismissed. no order as to costs.