Rajesh Kumar Vs. Sudhir Rana and anr. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.deepak gupta, j.1. this appeal and cross-objections are directed against the award of the learned motor accident claims tribunal-ii, kangra at dharamshala, h.p. dated 20.9.2003 whereby the claim petition filed by the appellant (hereinafter referred to as the claimant) has been partly allowed and compensation of rs. 1,14,000/- has been awarded. aggrieved by the said award, the claimant has filed the present appeal praying for enhancement of compensation. respondent no. 1, who is owner-cum-driver of the vehicle involved in the accident has filed the cross-objections in which the award has been challenged on two grounds, firstly, that the findings of the learned tribunal that the accident occurred due to rash and negligent driving of respondent no. 1 is illegal and secondly that the compensation awarded is highly excessive.2. briefly stated, the facts of the case are that the claimant filed a claim petition under section 166 of the motor vehicles act, 1988 before the learned motor accident claims tribunal, alleging that he is running a shop dealing with sale of ready-made garments having an income of rs. 10,000/- per month.3. it was further alleged that the claimant was 39 years old. according to the averments made in the petition on 31.7.1999 at about 1.45 p.m the claimant was coming back to kangra after collecting money from shop-keepers at nagri. the claimant was driving his motorcycle. when he was near dadh, maruti car bearing no. his 3306 came from the opposite site in a very high speed and struck the motorcycle. claimant fell down and sustained injuries. his right leg was fractured. he was removed to the zonal hospital where his right leg was plastered. he remained admitted in hospital from 31.7.1999 to 4.10.1999 but has not still fully recovered. compensation of rs. 5,00,000/- was claimed.4. the respondent no. 1, who is owner and driver of maruti car no. his 3306 filed a written statement stating that the accident, if any, took place due to the negligent driving of the claimant himseif. according to the respondent, the car was going up on a high gradient in a very low and control speed when the motor-cycle struck against him. it was denied that the respondent was liable to pay any compensation. though the oriental insurance-company was impleaded as a party in the case, it is not disputed before me that the car in question was not duly insured.5. on the pleadings of the parties, the following issues were framed:1. whether the petitioner has sustained injuries on account of rash and negligent driving of the vehicle by respondent no. 1? opp.2. if issue no. 1 is proved in affirmative, what amount of compensation the petitioner is entitled to and from whom? opp.3. relief.6. the claimant, in support of his claim, examined himself as pw-4. according to him when he was near ragni guest house at dadh the maruti car came on the wrong side at a high speed and hit his motorcycle. he suffered injuries in his right leg. according to him, the accident occurred due to the negligence of the car driver. he denied that it was raining at the time of the accident. according to him, it had rained earlier in the morning. he admits that he was going down hill. according to him the slope is very gradual. he denied the suggestion that he was trying to overtake a truck and the accident occurred due to his negligence. a suggestion was put to him that the car was parked on the left side of the road and that he hit the stationary car. he denied this suggestion also. another suggestion put up on behalf of the owner of the car is that the tyre of the car had burst and therefore, it was standing on the left side of the road.7. pw-5 is one dev raj. he states that he was standing outside ragni guest house when the accident took place. according to him, the respondent no. 1 was driving the car on the wrong side and the accident occurred due to the negligence of respondent sudhir rana. he denied the suggestion that he was not present on the spot. he has also denied the suggestion that the tyre of the car had burst and it was standing on the left hand side of the road.8. the respondent appeared as his own witness. according to the respondent before the accident took place the tyre of his car had burst, therefore, he stopped his vehicle on the side of the road. according to respondent no. 1, the claimant was driving the motorcycle at a high speed and while overtaking another vehicle hit the car. he also states that he has been acquitted in the criminal case lodged against him. rw-2 sunil kumar is the person who had conducted the mechanical examination of the vehicle after the accident and he has proved his report which shows that one of the tyres of the car had burst.9. the stand taken by the respondent that his car was parked on the side of the road as one of his tyres had burst is clearly an after thought. it would be pertinent to mention that in the written statement no such plea was raised. the averments made in the written statement clearly indicate that the accident was admitted and the case set up was that the respondent no. 1 was moving on the high gradient at a very slow and controlled speed. this is totally contradictory to the stand taken in the evidence where it has now been sought to be urged that the car was stationary.10. keeping in view the statement made by the claimant as well as dev raj and also taking into consideration the inconsistency in the stands taken by the respondent, i am clearly of the view that the learned tribunal rightly held that the accident occurred due to rash and negligent driving of the driver of the car.11. before dealing with the issue of quantum of compensation, i will deal with the application filed by the claimant for filing additional evidence. the claimant alongwith the appeal has filed a photo copy of a certificate of registration showing that one m/s a. one manufacturer, gaggal, h.p. is dealing in resale of ready-made and housiery goods. one copy of income-tax return stated to have been filed on 29th august, 2000 is also sought to be proved to show that the claimant was an income-tax assessee. there can be no dispute that the petitioner was running the business of ready-made garments. this fact has not been seriously contested even in his cross-examination.12. however, the claimant has led no evidence whatsoever to show what was his income. no income-tax records were proved in the trial court. now an income-tax return dated 29th august, 2000 is being sought to be proved on record. the accident took place on 31.7.1999 and therefore, this return filed on 29 august, 2000 much after the accident took place is totally meaningless. therefore, even if the application is allowed the documents filed with the same do not in any way help the court in deciding what was the income of the claimant at the relevant time. the application is, therefore, rejected.13. the claimant while appearing in the witness box stated that he was running a business of ready-made garments and that he has suffered 25% disability in the accident. according to him, he has spent rs. 60,000/- on his treatment. the claimant examined pw-1 dr. vaneet aggarwal, who has proved the disability certificate, which shows that the petitioner suffered from a malunited fracture of the right femur. according to this witness, this will lead to limb length discrepancy and knee stiffness. dr. milap sharma has been examined as pw-3. he has proved the mlc and has also proved that the claimant has suffered a fracture in the right femur. pw-5 dr. bhanu awasthi has treated the claimant. according to him, the claimant remained admitted in the hospital from 31.7.1999 to 4.10.1999. he has proved the discharge card ext.pw-5/a. he has also proved the opd slip ext.pw-5/b which shows that after the accident also the claimant was visiting the hospital for treatment.14. the medical expenditure bills of the claimant were only tendered in evidence and were not proved in accordance with the rule of evidence. the learned motor accident claims tribunal came to the conclusion that the claimant had failed to prove that his income was rs. 10,000/- per month. he assessed the income of the claimant as per the minimum wages and the same was assessed at rs. 2,000/- per month. the disability was assessed at 25% and by applying of multiplier of '15' compensation of rs. 90,000/- was worked out for future loss of income. in addition thereto the claimant was awarded rs. 4,000/- for loss of earning, rs. 10,000/- as lump-sum for medical expenses and rs. 10,000/- on account of pain and suffering. total compensation of rs. 1,14,000/- was awarded.15. the principles with regard to determination of just compensation contemplated under the motor vehicles act are well settled. injuries cause deprivation to the body which entitles the claimant to claim the damages. the damages may vary according to the gravity of the injuries sustained by the claimant in the accident. on account of the injuries, the claimant may suffer consequential losses such as, (i) loss of earning; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. the damages can be pecuniary as well as non-pecuniary, but all have to be assessed in rupees and paise. it is impossible to equate human suffering and personal deprivation with money.16. however, this is what the motor vehicles act enjoins upon the courts to do. the court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by him. such compensation is what is termed as just compensation. on the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. the court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. the compensation or damages assessed for the personal injuries should be substantial damages to compensate the injured for the deprivation suffered by him throughout his life. they should not be only token damages.17. there are numerous cases where the principles for grant of compensation have been enunciated. it would be relevant to quote pertinent observations from a few.18. the following observations of lord morris in his speech in h. west & son ltd. v. shephard 1958-65 acj 504 (hl, england), are very pertinent:money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. but money cannot renew a physical frame that has been battered and shattered. all that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. in the process there must be the endeavour to secure some uniformity in the general method of approach. by common assent awards must be reasonable and must be assessed with moderation. furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.19. lord denning while speaking for the court of appeal in the case of ward v. james (1965) 1 all er 563, laid down the following three basic principles to be followed in such like cases:firstly, assessability: in cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. secondly, uniformity. there should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. thirdly, predictability: parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good.20. the assessment of damages in personal injury cases raises great difficulties. it is not easy to convert the physical and mental loss into monetary terms. there has to be a measure of calculated guess work and conjecture. an assessment, as best as can, in the circumstances, should be made. in the case of mediana (1900) ac 113, lord halsbury held:of course the whole region of inquiry into damages is one of extreme difficulty. you very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. but, nevertheless, the law recognizes that as a topic upon which damages may be given.in perry v. cleaver 1969 acj 363 (hl, england), lord morris of borth-y-gest held thus:to compensate in money for pain and for physical consequences is invariably difficult but no other process can be devised than that of making a monetary assessment.in phillips v. western railway co. (1874) 4 qbd 406, field, j., while emphasizing that damages must be full and adequate, held thus:you cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. the plaintiff can never sue again for it. you have, therefore, now to give him compensation once and for all. he has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered.21. besides, the tribunals should always remember that the measures of damages in all these cases 'should be such as to enable even a tort feasor to say that he had amply atoned for his misadventure'. the observation of lord devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing', should be kept in mind by the court in determining compensation in personal injury cases.mcgregor on damages, 14th edn., para 1157, referring to heads of damages in personal injury actions states:the person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life.in r.d. hattangadi v. pest control (india) pvt. ltd. 1995 acj 366 (sc), speaking about the heads of compensation, the apex court held thus:broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. in order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. so far as non-pecuniary damages are concerned, they shall include: (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.in concord of india insurance co. ltd. v. nirmala devi 1980 acj 55 (sc), the apex court held:the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.this court in brestu ram v. anant ram and ors. 1989 (2) sim. l.c. 298, held:it is pecuniary loss, i.e. capable of calculation in terms of money, and non-pecuniary loss i.e. loss that cannot be easily assessed with accuracy-pecuniary loss is the loss suffered by the victim due to the loss of earnings or other profits which he had been earning and was to earn in future at the same rate or at same promoted scale. non-pecuniary loss consists of damages awarded for pain and sufferings, loss of amenities and loss of enjoyment of life and prospects. under non-pecuniary loss, for want of accurate assessment, a global figure could be arrived at and paid as compensation. under pecuniary loss the assessment can be made easily by taking into consideration at least the monthly income actually earned by the victim and the difference between what he would be capable to earn on disablement.it is well settled that in disablement cases compensation has always to be higher than even in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. it can be said that the bodily injury is to be treated as a deprivation which entitled the victim to claim damages, which vary according to the gravity of the injury. further, due to this injury, there can be loss of earnings, completely or partial due to the accident on his capacity to earn the same. another consequence may be the loss he suffers on account of the enjoyment of life or full, pleasures of living.22. applying the aforesaid principle, it is apparent that compensation has to be awarded to the claimant under various heads. the approach of the learned tribunal to say the least has been totally pedantic. the learned tribunal has not applied the well settled principle of assessment of damages while deciding the case. in the present case, the first question is what is the income of the deceased. no doubt, there is no cogent and reliable evidence led by the claimant to prove his case. however, it stands proved that he was running a shop. he was not an income-tax assessee at the relevant time. it also stands proved that he was selling cloth outside kangra at a number of places. keeping in view the aforesaid facts, i am of the opinion that the learned tribunal was highly conservative in assessing the income on the basis of the minimum wages. it is well settled law that in cases under the motor vehicles act there can be some element of conjecture by the court. keeping in view the nature of business of the claimant i assess his income at rs. 3,000/- per month.23. now, coming to the various heads. admittedly, the claimant was proved to be hospitalized w.e.f. 31.7.1999 to 4.10.1999. this works out to two months and five days. the discharge summary ext.pw-5/ a shows that even after his discharge the leg of the claimant was kept in a cast for a period of six weeks. this cast was removed on 15.11.1999, i.e. 3 and 1/2 months after the accident took place. even after 15.11.1999 the petitioner was under treatment for some time and visited the hospital.24. keeping in view all these facts into consideration, i am clearly of the view that the claimant could not have worked or earned any amount for three and half months. since his income has been assessed rs. 3,000/- per month the amount payable for these three and half months comes to rs. 10,500/-.expenses on treatment including medical expenses, transportation, special diet, attendant charges:25. unfortunately, the claimant has not led any cogent evidence in this behalf. even the bills of the medicines have been only tendered in evidence and were not even proved in the statement of the claimant. this court is normally liberal in such matters and strict rules of evidence do not apply in these cases and this court may have considered awarding the entire amount even on the basis of the documents only tendered in evidence. but i find that the claimant is guilty of trying to fabricate evidence. some of the documents produced before the court, such as, ext.p-30 and ext.p-31 are dated 18.7.1999 and 20.5.1999, whereas the accident took place on 31.7.1999. when a claimant tries to fabricate some material and does not prove the evidence relied upon, no, reliance can be placed on the other material placed by him on record.26. however, keeping in view the nature of the injuries, period of treatment, etc. i feel that the amount of rs. 10,000/- awarded by the learned motor accident claims tribunal as medical expenses is on the lower side and the claimant should have been awarded at least rs. 15,000/- on this account.27. when the claimant was in hospital he must have been attended upon by his family members. the tortfeasor has to pay the compensation even for the gratuitous service rendered by family and friends of an injured person. the claimant is awarded rs. 5,000/- on account of attendant charges. there is no evidence that the claimant was advised special diet or that he spent any amount on transportation. therefore, no amount is granted under these heads.loss of future earnings:28. the learned motor accident claims tribunal has straight-way related the disability with the loss of earning. it is not necessary that in each and every case the extent of disability is equal to the loss in earning capacity. in the present case, the claimant is a shop keeper. the disability of 25% due to fracture in the leg will not necessarily mean that his income decreases by 25%. each case has to be decided on its own merits. in the case of painter, amputation of even one or two fingers whereby the person is rendered unable to do his job of painting may amount to 100% loss of earning capacity. on the other hand, if a person on a desk job even the loss of two limbs may not lead to any loss of earning capacity.29. in the present case, though three doctors have been examined no evidence has been led to show how the injury and the disability will affect the working of the claimant. therefore, one has to fall back on conjectures. even though the claimant may be a shopkeeper he has to go from place to place and even within his shop his mobility is definitely hampered. but this loss cannot be estimated at 25% as has been done by the learned tribunal. in my opinion, the loss in the present case cannot be assessed at more than 10% of the earning capacity. since the income of the claimant has been taken as rs. 3000/- per month the monthly loss works out to rs. 300/- per month and the yearly loss comes to rs. 3600/-. applying a multiplier of '15' the compensation on account of loss of future earning works out to rs. 54,000/-.30. though the learned tribunal was very liberal while granting compensation for loss of future earnings, it has been extremely conservative in awarding rs. 10,000/- only on account of pain and suffering and loss of amenities of life.pain and suffering:31. under this head while considering compensation under this head one has to take into consideration the fact that the claimant remained in hospital for more than 2 months and thereafter was in plaster for another six weeks. for three and half months he was totally immobile. his fracture did not heal properly and he continues to be under treatment. he must have suffered immense pain and suffering. keeping in view all these factors, i feel that this is a fit case where a sum of rs. 25,000/ - should be awarded to the claimant on account of pain and suffering.loss of amenities of life:32. pw-1 dr. vinod aggarwal has clearly stated that there is a malunited fracture in the right femur and there is limb length discrepancy meaning that the length of one limb is different from other limb. he has also stated that the claimant shall suffer from knee stiffness. the claimant has to suffer from these problems throughout his life. the disability of the claimant is assessed at 25%. it is apparent that he will be disabled for rest of his life and cannot move around like a normal human being. the claimant is a divorcee, his chances of re-marriage shall also be hampered due to this disability. keeping in view all the aforesaid factors, i feel that the claimant should be awarded a sum of rs. 50,000/- on account of loss of amenities of life.33. in view of the above discussion, the claimant is held entitled to total compensation of rs. 1,59,500/-. in addition, thereto, the claimant shall be entitled to interest on the awarded amount. the learned tribunal has not awarded interest in favour of the claimant and has only awarded interest in case the amount of compensation is not deposited within 30 days from the date of award. in my opinion, this is totally against the provisions of section 171 of the motor vehicles act. section 171 reads as follows:award of interest where any claim is allowed.- where any claims tribunal allows a claim for compensation made under this act, such tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.34. no doubt, in the aforesaid section the word may has been used. however, it is more than apparent that an obligation is cast upon the claims tribunal to consider the question of payment of interest. there is no reason why a party which is not unduly delayed the proceedings should be denied interest. the cause of action arises when the accident takes place and normally a party is entitled to interest from the date of filing of the application. in case the interest is not to be granted from the said date or the interest is to be refused the claims tribunal must give reasons for the same. in the present case, i find that the proceedings had not been delayed by the claimant and therefore, 1 hold that he is entitled interest. it would be pertinent to mention that this court shushank and ors. v. ram karan and ors. 2006 acj 779, has already taken this view.35. keeping in view the prevalent rate of interest, the claimant is held entitled to interest at the rate of 7.5% per annum from the date of filing of the petition i.e. 18.3.2000 till the date of payment/deposit of the entire awarded amount.36. the appeal and the cross-objections are disposed of in the above said terms.37. no order as to costs.