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The Superintendent of Police, Dharwar and anr. Vs. Nikhil Bindurao Galagali and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 322 of 1973
Judge
Reported inILR1975KAR980; 1974(2)KarLJ495
ActsMotor Vehicles Act, 1939 - Sections 110B and 110D
AppellantThe Superintendent of Police, Dharwar and anr.
RespondentNikhil Bindurao Galagali and anr.
Appellant AdvocateV.C. Sabrad, High Court Govt. Pleader
Respondent AdvocateN.A. Mandagi, Adv.
Excerpt:
.....on account of the scars. what is more, it is fairly well accepted principle that assessment of damages by a tribunal in matters of the present nature is generally notional and, in exercise of the discretion of the tribunal in fixing the compensation as such, and the same is not readily amenable for interference at the hands of an appellate court merely on the ground that such assessment could have been made in a different manner and a different figure arrived at. even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or,..........could be taken into account. what is more, it is fairly well accepted principle that assessment of damages by a tribunal in matters of the present nature is generally notional and, in exercise of the discretion of the tribunal in fixing the compensation as such, and the same is not readily amenable for interference at the hands of an appellate court merely on the ground that such assessment could have been made in a different manner and a different figure arrived at. it is no doubt true that in determining the damages in a case of this nature, if a tribunal were to take into account irrelevant circumstances or omitted to take relevant circumstances the damages so determined are patently excessive, an appellate court could interfere and come to a different finding on such a question. in.....
Judgment:

Venkataswami, J.

1. This is an appeal by the Superintendent of Police, Dharwar, and the Karnatak Government Insurance Department, under Section 110-D of the Motor Vehicles Act, 1939. They are aggrieved by the award of compensation for injuries received by the claimant, who is a school going boy of eight years, in Mis. (M. V. C.) Case No. 15 of 1971 on the file of the Motor Accidents Claims Tribunal. Dharwar (District Judge).

2. The vehicle involved is a prison van in charge of the Police, used for the conveyance of the under trial prisoners between the jail and the Court, in addition to its use by the police personnel. This vehicle had been registered in the name of the Superintendent of Police of the District concerned. The boy was a student attending a school near the, cotton market of Hubli. It would appear that at the spot there were schools on either side of the road, and as result of their situation, two signboards had been put up within a reasonable distance of the schools, proclaiming that the area between the boards was a 'school zone'. On 30-1-1971, at about mid-day, the injured boy was crossing the road from one side of the footpath to the other, after alighting from a bus. In doing so, he followed 2 or 3 other students who also were crossing the road and had in fact crossed it. While doing so, and when he was half-way across, the van belonging to the Police Department dashed against him causing grievous lacerated injuries, which will be specified at a later stage. Thereupon, the boy was removed to the hospital and had to stay in the hospital as an inpatient up to 8-4-1971. He had also to undergo two operations of skin grafting in the course of his stay there. As a result of his having been hospitalised he had also to forego the examination of that year. It is in respect of this accident that the claim had been preferred for a sum of Rs. 40,000 by way of compensation. The defence or the appellants herein was that there was no negligence on the part of the driver and that the van was engaged in performing the sovereign services of the State, and therefore was not liable to submit to the claim made.

3. The Tribunal, on a consideration of the evidence led came to the conclusion that the van had not been employed in the course of performing sovereign duties of the State and that the accident was the result of negligence of the driver of the vehicle. But while assessing compensation it took all the circumstances into consideration and assessed the same in a lump sum of Rs. 10,000/-and made an award accordingly. Hence this appeal.

4. Before us, Sri. V. C. Sabrad, the learned High Court Government Pleader, urged only two contentions. They are: (1) that the evidence would not support a case of actionable negligence on the part of the driver; and (2) that the compensation awarded was highly excessive.

5. We are not in agreement with either of the contentions urged on behalf of the appellants. On the first contention, it is to be noticed that the accident took place in a 'school zone'. It is further to be noted that the boys were actually in the process of crossing the road and 2 or 3 other boys (students) had actually crossed, after alighting from the bus which had halted nearby. In such a situation, if the injured boy had followed the other boys, it cannot be said that he was acting in an indifferent or negligent manner. But the point for consideration is that the crossing of the other boys who were successful in so crossing should have put the driver on notice of the situation prevalent at the time when the van was being driven on the road. Indeed, it is clear from the evidence of the driver that he was aware of the fact that that portion of the road was generally being used by the boys in the manner referred to earlier. It is also a circumstance to be noted that the bus had in fact come to a halt at the time and the boys were actually alighting therefrom. This also is a factor which should have put the driver on notice of the situation prevalent at the time, which should have impelled him to slow down the vehicle and drive the same with the necessary caution like any other prudent man. In this context, it is apposite to reproduce an enunciation in London Passenger Transport Board v. Upson (1949 AC 155), wherein the House of Lords has observed:

'No speed is reasonable which is not adjusted to the circumstances of the moment, including the fact that the driver is approaching a pedestrian crossing and may have to pull up quickly and within a very short distance.'

Having regard to the principle underlying the above enunciation, we are clearly of the opinion that the conclusion of the Tribunal on this aspect of the case Joes not call for interference.

6. On the next question as regards the assessment of compensation, it is to be seen that the boy had suffered grievous injuries which, according to the Doctor who attended on the injured, examined as P. W. 2 are as follows:--

'1. Extensive laceration -- starts from the middle line of the thigh upto the dorsum of the foot, about 15' x 7'. Tibia was seen throughout its length. Capsules of the knee joint is seen, muscles were exposed (sic). Some muscles were lacerated. The whole flap of skin and the subcutaneous tissue had come out.

2. Contusion on left cheek 1/2' x 3/4'. Clinically there is DO fracture.'

The Doctor has further spoken to the fact that the boy had been hospitalised till 8-4-1971, during which period there had to be more than one operation of skin grafting. He has also stated further thus:

'..... .The skin grafting at the place where the skin was taken has resulted in keloid formation which means the scar gets thickened and it comes in the way of the free movement. There is no probability that these would disappear. There is keloid formation both at the scar and at the place from where the skin was removed. .........'

In the course of deposition of this witness (Doctor), it is further noted by the Tribunal thus:

'The boy is before the Court. It can be seen with bare eyes that scar has thickened; as also the place from where the skin is removed.'

It is clearly inferable from his evidence, which has not been challenged at all on behalf of the appellants herein, that the boy must have suffered considerable pain and also a permanent disfigurement on account of the scars. It is further inferable that there must have been a certain amount of permanent impairment in the use of the injured leg which, in all probability, may persist throughout his life.

7. It is seep from the award impugned that the Tribunal has made no attempt to estimate the compensation payable with reference to particular heads of claim. It may be, as contended by the learned Government Pleader, that it is possible for this Court to estimate the damages differently and fix the same at a lesser figure. But the assessment of damages in such cases is done nationally to a considerable degree. It is also difficult to assess, and for that matter for any witness or expert, to speak, with any definiteness, as to the compensation payable in regard to the various circumstances that could be taken into account. What is more, it is fairly well accepted principle that assessment of damages by a Tribunal in matters of the present nature is generally notional and, in exercise of the discretion of the Tribunal in fixing the compensation as such, and the same is not readily amenable for interference at the hands of an appellate Court merely on the ground that such assessment could have been made in a different manner and a different figure arrived at. It is no doubt true that in determining the damages in a case of this nature, if a Tribunal were to take into account irrelevant circumstances or omitted to take relevant circumstances the damages so determined are patently excessive, an appellate Court could interfere and come to a different finding on such a question. In this context, we consider it relevant to refer to two enunciations of the Courts of the United Kingdom, reproduced in a judgment of this Court in A. Harsha v. K. V. Karna 1972 (2) Mys LJ 460.

8. In Bird v. Cocking and Sons, Ltd.,(1951) 2 TLR 1260 at p. 1263, Birkett L. J.has observed thus:

'The assessment of damages in cases of persona! injuries is, perhaps one of the most difficult task which a Judge has to perform, and certainly the task is no lighter when the appellate Court is asked to reconsider the assessment made by a Judge in the Court below. The task is so difficult because the elements which must he considered in forming the assessment in any given case vary so infinitely from other cases that there can be no fixed and unaltered standard for assessing the amounts for those particular elements.'

Then, again, in Nance v. British Columbia Electric Co., Ltd., (1951 AC 601 at p. 613). Viscount Simon has observed thus:

'The principles which apply under this head are not in doubt. Whether the assessment of damages be by a Judge or a Jury the appellate Court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the Tribunal of first instance was a Judge sitting alone, then, before the appellate Court can properly intervene, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.' (underlining is ours)

9. In the light of the above enunciations, we are satisfied that the Tribunal has not failed to take into account any relevant circumstance or has taken into account any irrelevant circumstance, in assessing the damages as such, although we are inclined to think that the damages awarded are a little on the excessive side. We are not, therefore, inclined, to accede to the contention of the appellants on this point.

10. The result is, this appeal deservesto fail and is accordingly dismissed, but without costs.

11. Appeal dismissed.


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