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Ramesh Chandra Vs. Randhir Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. Nos. 420, 444 and 458 of 1975
Judge
Reported inAIR1977All330
ActsMotor Vehicles Act, 1939 - Sections 96(2), 110A, 110B and 110CC
AppellantRamesh Chandra
RespondentRandhir Singh and ors.
Appellant AdvocateSudhir Narain Agarwal, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
(i) motor vehicles - compensation - section 110-a of motor vehicles act,1939 - accident -award of rs.55,000/- subject to some deduction - held, the claim tribunal have not committed any error in deducting due to lump sum payment. (ii) appeal - section 96 sub-section 2 clause (a) to (c) of motor vehicles act,1939 - compensation - the insurer can challenge on the line of clause (a) to (c) and the findings of claim tribunal cannot be challenged. (iii) compensation - section 110-a of motor vehicles act,1939 - disability to carry out own profession - held, the injury is cent percent. (iv) compensation - section 110-b of motor vehicles act,1939 - the tribunal is within it's power to award compensation for sufferings besides for loss of income. - - 1739. the claims tribunal further held.....sinha, j. 1. these three first appeals from order arise out of the order dated 24th july, 1975, passed by the claims tribunal, bulandshahr, awarding a sum of rs. 78,000 as compensation to the claimant under section 110-a of the motor vehicles act. 2. the facts of the case briefly stated are as follows;-- randhir singh (hereinafter to be called the 'claimant') was working as a driver on tempo no. uppp 3480 which belonged to his brother raj bir singh. on 10th of october, 197.2, the claimant was driving the tempo from bulandshahr to sikandarabad with six passengers in it. at about 3 p. m., when the tempo was near village lalpurat a distance of three miles from sikandarabad, truck no. u.p.p. 1739 was seen coming from the opposite side, driven at a fast speed and in a rash and negligent.....
Judgment:

Sinha, J.

1. These three First Appeals from order arise out of the order dated 24th July, 1975, passed by the Claims Tribunal, Bulandshahr, awarding a sum of Rs. 78,000 as compensation to the claimant under Section 110-A of the Motor Vehicles Act.

2. The facts of the case briefly stated are as follows;--

Randhir Singh (hereinafter to be called the 'claimant') was working as a driver on Tempo No. UPPP 3480 which belonged to his brother Raj Bir Singh. On 10th of October, 197.2, the claimant was driving the tempo from Bulandshahr to Sikandarabad with six passengers in it. At about 3 p. m., when the tempo was near village Lalpurat a distance of three miles from Sikandarabad, Truck No. U.P.P. 1739 was seen coming from the opposite side, driven at a fast speed and in a rash and negligent manner. Noticing that the claimant took down his tempo on the kachcha part of the road to his left. The truck however, came down on that side of the road and dashed against the tempo, as a result of which the tempo fell down in a ditch that adjoined the road. The claimant sustained serious injuries in both his legs as a result of this accident. The driver on the truck ran away. The claimant was taken to Sikandarabad Dispensary for medical examination and treatment where it was found that he had sustained as many as 1'8 external injuries. In view of his condition, the claimant was sent to the District Hospital. Bulandshahr, and from there to Safdarjang Hospital, New Delhi, where a part of his right foot had to be amputated sometime between 27th November, 1972 and 1st December, 1972.

3. On 11th December, 1972 the claimant filed the present claim petition. Ramesh Chand (appellant in F. A. F. O. No. 444 of 1975) is the owner of the truck with which the accident took place. In the written statement filed by himit was pleaded that the claimant had no licence for driving the tempo; that he was himself driving the tempo in a negligent manner and the accident took place en that account that the tie rod of the truck suddenly gave way and consequently the accident could not be averted and that the damages claimed were excessive.

4. The Oriental Fire and General Insurance Co. (Appellant in F. A. F. O. No. 420 of 1975), being the insurer of the truck, filed a separate written statement taking up pleas identical to those taken up by Ramesh Chand in his written statement.

5. A number of issues were framed by the claims Tribunal and in answer to those issues it was concluded that the accident took place on account of rash and negligent driving of truck No. U.P.P. 1739. The Claims Tribunal further held that even though the claimant did not have a licence for driving the tempo, he could efficiently drive the tempo and that neither the owner of the truck nor the insurer could escape the liability on the ground that the claimant did not have a licence. The plea set up by the owner of the truck that the accident took place on account of the tie rod of the truck giving way was rejected. In the result, the Claims Tribunal awarded a sum of Rs. 78.000 as compensation further directing that out of the said amount of Rs. 78,000, Rs. 50,000 shall be paid by the insurance company viz. the appellant in F.A.F.O. No. 420 of 1975, and the balance amount of Rs. 28,000 shall be paid by Ramesh Chand viz. the appellant in F. A. F. O. No. 444 of 1975, he being the owner of the truck. Three-fourths of the costs were also awarded to the claimant.

6. The claimant, the owner of thetruck, as well as the insurer feeling dissatisfied with the award of the Claims Tribunal, have preferred the present appeals.

7. Learned counsel for the appellant in F.A.F.O. No. 458 of 1975, filed by the claimant, has raised only two points:

(i) That since the Claims Tribunal did not take into account the prospects of future rise in the income of the claimant and further because the Claims Tribunal also did not award interest, the Claims Tribunal should not have made any deductions on the ground that the claim-am shall get the determined amount of compensation in a lump sum.

(ii) That in any case the Claims Tribunal should have awarded interest to the claimant on the amount of compensation awarded to him.

8. In support of his first point learned counsel contended that the claimant was only 37 years of age when the accident took place and his income subsequent to the accident would have increased, if he had not been crippled. It was urged that the prospect of future rise in income was not taken into account by the Claims Tribunal while determining the amount of compensation payable to him and, on the contrary, it deducted a sum of Rs. 24,200 on the ground that the determined amount of compensation shall be paid to the claimant in lump sum. Learned counsel stressed that either the Claims Tribunal should have taken into account the prospects of future rise in income and then it could make the deduction for payment in lump sum or it should not have made any deduction for lump sum payment. According to the learned counsel, the Claims Tribunal was in error in deducting the sum of Rs. 24,200 out of the amount of compensation payable to him, without taking into account the prospects of future rise in income. Reliance for his contention was placed by the learned counsel for the claimant on the case of Kailash Wati v. State of Haryana, 1974 Ace CJ 514 : (AIR 1975 Him Pra 35) (Paras 15 and 16); Punjab State v. Hardeep Kaur (1970 Ace CJ 150) (P & H), Sood and Co. Kullu v. S. Kumar (1973 Ace CJ 414) (Punj) and Damyanti Devi v. Sita Devi (1972 Acc CJ 334) (Punj).

9. The observations contained in these cases, no doubt, lend support to the contention that deduction for lump sum payment should not be made, if prospect of future rise in income is not taken into account. Those observations were, however, in the context of the facts of those cases. In the case of Kailash Wati v. State of Haryana (AIR 1975 Him Pra 35) (supra) one of the victims was a student of Law aged 21 years and the other was a third year Chemical Engineering student aged about 2l1/2 years. The observation referred to was made in view of the ages and the education of the two victims. In the case of Punjab State v. Hardeep Kaur (1970 Acc CJ 150) (Punj) (supra), the person who died was a young boy employed with a firm in England getting average wages of 16-1s-6d per week besides an additional income of 21-11s-2d. The age of the victimwas 25 years On the facts, therefore, it was obvious that the income of the victim would have increased, if he had not met the accident. In the case of Sood & Co. Kullu v. S. Kumar (1973 Acc CJ 414) (supra) the victim was a Mechanic in the Railways Department and, as is well known, there is always a time scale in Government service. It was in that background that the court held that, since the future rise in income was not taken into consideration, it was not necessary to make any deduction on account of the lump sum payment. In the case of Damyanti Devi v. Sita Devi (1972 Ace CJ 334) (Punj) (supra) the victim was a proprietor of a factory manufacturing rubber. The victim thus had a prosperous business and it was in that background that the court held that, since the prospects of the deceased improving his income were not taken into account while assessing the loss, nor any interest was awarded, no deduction could be made out of the amount of compensation on account of lump sum payment.

10. In the instant case the claimant was not in Government service which has a time scale of pay. It also does not appear that he is an educated person. He only knows the job of driver and was middle aged man when the accident took place, it is true that, even in private service, the salaries of employees have an upward tendency. That is, however, not very sure and certain, the claimant was already getting Rs. 300 per mensem as salary when the accident took place. Looking to the nature of the job that was being done by the claimant, the salary could not be said to 'be meagre. In any case he could not expect a rise in his salary beyond Rs. 50 or Rs. 60. Even if the loss of income were calculated on that basis, the deduction made by the Claims Tribunal could not be said to be excessive. It is well established that compensation awarded under Section 110-A of the Motor Vehicles Act is to be just compensation. It should neither be punitive to the person against whom the claim is decreed, nor should it be a source of profit to the person in whose favour it is decreed. The Claims Tribunal awarded a sum of Rs. 55,000 as a loss of earnings suffered by the claimant. Now, if this amount of Rs. 55,000 is put by the claimant in fixed deposit for a period of three years, it would earn interest at the rate of Rs. 8% per annum. The interest that the claimant would, therefore, earn per month on the aforesaid amount ofRs. 55,000 would be little more than Rs. 366 per mensem. The amount awarded to the claimant for the loss of earnings, therefore, would cover such rise of income which the claimant could reasonably expect in future.

11. In the particular circumstances of this case, therefore, it cannot be said that the claims Tribunal committed any error in making deductions on account of lump sum payment.

12. Coming to the second point raised by the learned counsel for the claimant, we find some substance in it. The legislature has made a special provision for payment of interest in accident claims by enacting Section 110-CC which reads as follows:

'Where any court or Claims Tribunal allows a claim for compensation made under this chapter, such court or Tribunal may direct that, in additions 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.'

Now, Section 110-CC provides for interest being paid for the period between the making of the claim and the date of payment of compensation. It has a dual purpose, namely (i) to compensate the claimant for delayed payment of compensation and (ii) to coerce the person/persons who have to pay compensation, so that they may not delay the payment. This is, therefore, a salutary provision. It can also not be said that the payment of interest on the amount of compensation shall result in double benefit to the claimant for the claimant can deposit the amount of compensation and earn interest on it only after it has been paid to him. No pecuniary advantage can accrue to claimant/claimants till then. We, therefore, think that it is a fit case in which interest should be allowed, in the case of Bishambar Sahai v. State of U. P. (1975 Ace CJ 154) (All) this court awarded interest at the rate of 61/4 per annum. We propose to award interest to the claimant at a flat rate of Rs. 6% per annum. This disposes of P. A. F. O. No. 458 of 1975.

13. F.A.F.O. No. 420 of 1975 has been filed by the Oriental Fire and General Insurance Company as insurer of the truck with which the accident took place. Learned counsel appearing for the appellant in this appeal tried to assail the findings of the Claims Tribunal on merits.

On being pointed out that in view of the provisions contained in Section 96 (2) of the Motor Vehicles Act, he could not do so and that the only defences available to an insurance company are those specified in Clauses (a) to (c) thereof, learned counsel urged that the provisions contained in Section 96 of the Motor Vehicles Act only apply to proceedings before a court and not to proceedings before a Tribunal, in support of his contention, learned counsel referred us to the case of Gopala Krishnan V. Sankaranarayanan, 1969 Acc CJ 34: (AIR 19.63 Mad 436). This decision was, however, later considered by a Division Bench of the same High Court in the case of Madras Motor and General Insurance Co. Ltd. v. Jagdeeswari, 1974 Acc CJ 234 : (AIR 1974 Mad 318) and was not approved.

14. Almost every other High Court has taken the view that the defences open to an Insurance Company in a claim under S, 110 of the Motor Vehicles Act are restricted to those specified in Section 96 (2) of the Act, see Hukam Chand Insurance Co. Ltd. v. Subhashini Roy (1971 Acc CJ 156) (Cal); Kesavan Nair v. State Insurance Officer (1971 Acc CJ 219) (Ker); Orissa Co-operative Ins. Society Ltd. v. Bhagaban Sahu (1971 Acc CJ 49) (Orissa); Kasturi Lal v. Prabhakar, 1970 Acc CJ 1 : (AIR 1971 Madh Pra 145); Vanguard Insurance Co. Ltd. v. Rohini Bhan (1970 Acc CJ 11) (Delhi); Vanguard Insurance Co. Ltd. v. Shafali Mukerji (1970 Acc CJ 245) (All) (LB); Padma Devi v. Gurbaksh Singh, 1973 Acc CJ 460 : (AIR 1973 Raj 317) (Raj); B. Appa Rao v. Dunna Mukanda Rao (1973 Acc CJ 222) (Orissa), and Northern Indian General Ins. Co. Ltd. v. L. Krishnan, 1972 Acc CJ 420; (AIR 1973 Mys 107).

15. We accordingly find that it is not permissible for the appellant in F.A.F.O. No. 420 of 1975 to assail the findings of the Claims Tribunal on merits. It may, however, be added that, as we shall show while considering the appeal by the truck owner even on merits there is no substance in this appeal.

16. Learned counsel representing the Insurance Company conceded that it is not possible for him to raise in this appeal any contention of the nature referred to in Clauses (a) to (c) of Sub-section (2) of Section 96 of the Motor Vehicles Act.

17. F.A.F.O. No. 420 of 1975 filed by the Insurance Company has, therefore, no substance.

18. This takes us to F.A.F.O. No. 444 of 1975 filed by Sri Ramesh Chand, owner of the truck with which the accident took place.

19. Learned counsel for the appellant, in the first instance, contended that, on the face of the record, it was apparent that the accident took place on account of the negligence of the claimant and not on account of the negligence of the person driving the truck. Reading out from the statement of the claimant (P.W. 3), learned counsel pointed out that, on his own admission, the claimant had taken down his tempo on the patri of the road on the left side and that he did not stop the tempo even though he had seen the truck coming at a very fast speed when a distance of four furlongs intervened between him and the truck. Learned counsel further pointed out that from the statement of the claimant and the photographs of the spot, it is apparent that there was a shisham tree in front of the claimant and it should therefore, be presumed that on finding the shisham tree in front of him, the claimant all of a sudden diverted the tempo on the road and it was for that reason that the accident took place. The argument, however, does not bear any scrutiny. The claimant did not at any stage say that, on account of the Shisham tree, he all of a sudden diverted the tempo towards the pacca part of the road. Needless to say that none entered the witness-box on behalf of the appellant to make a statement in that regard. The contention raised onbehalf of the appellant that, on finding the Shisham tree, the claimant all of a sudden diverted the tempo towards the road, is a mere surmise having no base whatsoever. It is worthy of notice that, according to the consistent statement made by the claimant, he had taken the tempo on the patri of the road on his left side and had slowed down the speed at about 20 k.m. per hour. It is apparent from the photographs on the record that there was a lot of space in between the shisham tree and the pacca road. Since the claimant was driving the tempo as slow as 20 miles per hour, and since there was ample space between the tree and the pucca road, it can, by no means, be presumed that the claimant, before reaching near the shisham tree would have all of a sudden diverted the tempo towards the road.

21. It was also urged by the learned counsel for the appellant that, since the claimant continued to drive the vehicleand since the claimant did not blow anyhorn, it should be held that the accident took place on account of his negligence. The argument was not at all understandable to us. Having taken down the tempo on the kachcha part of the road, the claimant could not anticipate that the truck would come down on that side of the road and would dash against it. The fact that the claimant had taken down the tempo wholly on the kachcha part of the road and had lowered the speed to 20 klm. per hour shows that all such precaution which a prudent person should, in the circumstances, take had been taken by the claimant. Obviously, the claimant could not anticipate that despite the tempo being wholly on the kachcha part of the road, the truck would come down on that side of the road and would dash against it. True, it is not shown that the claimant blew the horn of the tempo on seeing the truck coming from the opposite side. Since, however the truck was coming from the opposite side, it was not necessary for the claimant to have blown the horn in order to attract the attention of the person driving the truck. He would have assumed that since truck was coming from in front of him, the person driving it would have noticed him. The claimant, therefore, cannot be held guilty of any negligence whatsoever on the ground that he did not blow any horn.

21. Besides examining himself as P.W. 3, the claimant examined two other witnesses to give direct evidence of the accident. They were Balbir (P.W. 4) and Man Singh (P.W. 9). Balbir was at that time present at his tube-well which was only 50 paces away from the place of occurrence, while Man Singh was travelling in the same tempo with which the accident had taken place. Both of them were thus natural witnesses. It was consistently deposed by both the witnesses that the tempo was on the kachcha part of the road and that the truck came down on that part of the road and dashed against the tempo as a result of which the tempo fell into the ditch. It could not be shown that the evidence of the claimant and that of the aforesaid two witnesses suffer from any inconsistency or infirmity. On the evidence of the said witnesses it was amply proved that the truck with which the accident took place was being driven in a rash and negligent manner.

22. Some stress was laid by the learned counsel for the appellant on the fact that when the truck was examined bySant Ram Head Constable (P.W. 5) he had found that emergency brakes had been applied. It was urged by the learned counsel that this should lead to the conclusion that the person driving the truck acted with due care and caution. We regret we cannot draw such an inference. As already stated earlier, if the person driving the truck had been vigilant, he should have seen the tempo ahead of him when he was some distance a way from it and, consequently, there could be no justification for his coming to the right side of the road. The fact that he came to the right side of the road is borne out from the evidence of the eye-witnesses on the record. It is further borne out from the photographs (Exs. 10, 11 and 12). It is quite likely that the person driving the truck had either dozed off or was talking with some person and was not seeing in front of him and that he noticed the tempo only when he was dangerously close to it and, therefore applied emergency brakes. The mere fact that emergency brakes had been applied cannot, therefore form basis for the conclusion that the person on the truck was driving it with due care and caution or that the accident took place on account of any negligence on, the part of the claimant.

23. Without dilating any further on this point we confirm the finding of the Claims Tribunal that the accident took place on account of the truck being driven in a rash and negligent manner.

24. Learned counsel then contended that the physical damage suffered by the claimant was that his right foot had to be amputated. Learned counsel urged that despite it the claimant could do some work to earn his livelihood. It was vehemently urged by the learned counsel for the appellant that this was not a case of total disablement and, consequently, the compensation should not have been determined on the basis of the total remuneration that the claimant was getting at the time of the accident. We regret our inability to accept this argument. As already stated earlier, the claimant was a driver by profession. It was established by the evidence of Dr. K. C. Gupta (P.W. 2} that not only the right foot of the claimant was amputated, but that he had also sustained fracture in his left leg as a result of which the left foot could also not function normally. The claimant (P.W. 3) making his statement on that point, said that he could move only withthe aid of crutches. Obviously, a person moving with the aid of crutches could no more drive a vehicle. He could not even move freely. It was, therefore, obvious that, because of the injury sustained by him in the accident, he could not follow the normal pursuit of his life. We do not think the compensation awarded to the claimant can be reduced on the ground that, even if he cannot follow the normal pursuit of life, he can do some other petty job to earn his livelihood. The contention raised by the learned counsel for the appellant does not deserve any serious consideration and is accordingly negatived.

25. Learned counsel for the appellant, in support of her contention, referred us to the case of Smt. Dalip Kaur v. Vanguard Insurance Co. Ltd. (1975 Acc CJ 90) (Delhi). In this case the victim was a lady and as a result of the injuries sustained by her in the accident, she had suffered permanent disability of her left arm to this extent that she could not move it to its full force. Learned counsel pointed out that, even though this was accepted by the Tribunal and the Court to be permanent disability, yet the claimant was awarded a sum of Rs. 3,000 only as compensation for it. We do not think there can be any analogy at all in this case and in the case before us. As already pointed out, all that had happened in this case was that the claimant could not move her left arm to its full force. It is not stated that the claimant could not use her left arm at all. That apart, her right hand had suffered no injury whatsoever. It was thus not a case in which the victim was permanently disabled from doing her normal work. The disability suffered by her, though permanent, was of a partial nature and it was on that account that the claimant was awarded a sum of Rs. 3,000 only as compensation for it. It is true worthy of notice that it is not apparent from the report of the case as to what amount had been claimed as compensation by the claimant under the head. The Claims Tribunal awarded that amount and the High Court affirmed it. This case is thus of no help to the appellant.

26. Learned counsel next referred us to the case of M/s. Srinivasa Roadways, Madurai v. Saroja, 1975 Acc CJ 265 : (AIR 1975 Mad 12'6) (para 8). In this case one of the claimants was a lady named Smt: Saroja. She was 35 years old. She sustained an injury in an accident and as a result of it her left leg below theknee was broken. After having remained for sometime in the hospital, it was found that the leg had sustained a permanent 20% disability. The lady was awarded a compensation of Rs. 10,000 for that injury. In our opinion, this case can also not be of any help to the appellant. According to the medical evidence in that case, the permanent disability of the left leg was found to be only 20%. She did not receive any injury in the right leg and yet she was awarded a compensation of Rs. 10,000. As opposed to this, in the case before us, one foot of the claimant had been amputated and the right leg had also been fractured. Thus both the legs had sustained injuries and to the extent that the claimant cannot walk except with the aid of crutches. It can also not be ignored that the earning capacity of ladies in this country normally is not the same as that of men-folk. The work of earning bread is principally done by the men-folk. We thus find nothing in the case referred to by the learned counsel to warrant deduction of the amount of compensation in this case.

27. Learned counsel next referred us to a Division Bench decision of this court in the case of Dr. C. B. Singh v. Cantonment Board, Agra, 1974 Acc CJ 248: (AIR 1974 All 147) and pointed out that in this case no compensation whatsoever was awarded for the loss of income even though it was shown that the two doctors had received injuries which could affect their earning capacity. True no compensation in this case was awarded for loss of earning capacity, but it was for the reason that it could not be proved by cogent evidence that the earning capacity of the two doctors had actually suffered permanently on account of the injuries sustained by them. This case can also, therefore, be of no help to the appellant.

28. It is needless to multiply cases. It should be sufficient to say that each case depends on its own facts. In the case before us, as we have already said earlier, the claimant was a driver by profession. On account of the injuries sustained by him, he cannot even move except with the aid of crutches His disability vis-a-vis the profession that he can follow is, therefore, cent per cent. It cannot be said that, since his other limbs are intact, he can still earn something and that he should not have been awarded compensation for loss of his entire income that he would have earned as a driver.

29. Learned counsel next urged that, besides awarding compensation for loss of income, the Claims Tribunal also awarded to the claimant a sum of Rupees 3,000 on account of medical expenditure and a sum of Rs. 20,000 on account of pain and suffering. Learned counsel urged that proper evidence was not adduced by the claimant in order to establish that he had incurred an expenditure of Rs. 3,000 on his medical treatment. It was further urged that, since the Claims Tribunal had already awarded a compensation of Rs. 55,000 to the claimant on account of loss of income, the Tribunal could not award any further amount to the claimant as compensation for pain and suffering.

30. So far as the first part of the contention is concerned, the claimant made a statement on oath that he incurred an expenditure of six or seven thousand in his medical treatment. This part of the statement made by the claimant was not challenged in cross-examination. That apart, it is borne out from the evidence that, after having been attended to in the dispensary of Sikandarabad, the claimant was taken to the District Hospital and then to Safdarjang Hospital at Delhi. According to the statement made by Dr. K. C. Gupta, the claimant was admitted in Safdarjang Hospital on 10-10-1972 and was discharged on 3-12-1972. Looking to the injuries sustained by the claimant and the fact that he had to get himself treated first at the District Hospital and then at Delhi, there can be no doubt that he should not have spent less than Rs. 3,000 over his treatment. The amount awarded by the Claims Tribunal in that connection can by no means be said to be excessive. The omission on the part of the claimant to produce vouchers and receipts cannot, in the particular circumstances of this case, be of much consequence.

31. Coming to the second part of the contention, the relevant section in the Motor Vehicles Act regarding awarding of compensation is Section 110-B. It only states that the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just. It would thus appear that the Claims Tribunal has a very wide discretion in the matter of award of compensation. When a person is physically disabled on account of any accident, he is not only deprived of his earning, but he also suffers in mind and body on account of the accident. Throughout the rest of his life he suffers with a feeling that he is no more a normal man and cannot enjoy the amenities of life as a normal man can do. In the instant case one foot of the claimant had to be amputated and the functioning of the other leg also got impaired on account of the fracture, with the result that throughout the rest of his life he cannot walk except with the aid of crutches. It is, therefore, obvious that throughout the remaining part of his life he would be a crippled man. He will find himself handicapped in the company of other fellow beings. The fact that he will not be able to even walk freely will be a source of permanent mental torture for him. This is besides the fact that, for some time after the accident, the claimant would have also suffered physical pain and agony. The compensation awarded to a person for this mental and physical pain and suffering is separate from the compensation that is awarded to him on account of his loss of earning capacity, and it has been so recognised in a number of cases, see M. R. V. Bus Service (Private) Ltd. v. Ravi (minor), 1974 Acc CJ 72 : (AIR 1974 Mad 212), M/s. Assam Corporation v. Binu Rani, 1974 Acc CJ 381 : (AIR 1975 Gau 3), State of Assam v. Urmila Datta (1974 Acc CJ 414) (Assam), Virendra Kumar v. Gyani Ram (1975 Acc CJ 122) (Delhi). Jai Bhagw.an Bhardwaj v. Pepsu Road Transport Corporation, 1975 Acc CJ 128 : (AIR 1975 Punj 254), Atlantic (East) Ltd. v. Ram Prakash (1975 Acc CJ 427) (Delhi), and Pepsu Road Transport Corporation v. Roshan Lal Gupta (1975 Acc CJ 326) (Punj & Har).

32. The contention raised by the learned counsel for the appellant that, since the claimant had been awarded compensation for loss of income, he should not have been separately awarded compensation for pains and sufferings and agony, cannot therefore be accepted and is negatived.

33. Learned counsel for the appellant then urged that, in any case, even if the person driving the truck was negligent, the claimant was also negligent and the Claims Tribunal should have made some deduction on the ground of contributory negligence. Learned counsel stressed that the claimant was also negligent contributing to the accident inasmuch as, finding the shisham tree in front of himhe diverted the tempo towards the pucca side of the road. It was urged that, if the claimant had not done so, the accident would not have taken place. We have, however, already said earlier that there is no material whatsoever on the record to warrant a conclusion that the claimant, on seeing the shisham tree in front of him, all of a sudden diverted the tempo towards the pucca side of the road. That part of the contention cannot, therefore, be accepted. It was also suggested by the learned counsel for the appellant in her arguments that, in any case, once the claimant had seen the truck coming in his direction driven at a very fast speed and encroaching on his side of the road, he could apply brakes and stop the tempo to avert the accident. We have however, already said earlier that, since the claimant was driving the tempo absolutely on the kachcha part of the road to his left and had also lowered the speed to 20 k. m. per hour, he had no reason to suspect that the person driving the truck shall come down on that part, of the road and dash against the tempo. Consequently the claimant cannot be said to be guilty of contributory negligence on the ground that he did not stop the tempo to stand still.

34. Learned counsel for the appellantthen invited our attention to the fact that the right foot of the claimant had to he amputated on account of gangrene. Learned counsel pointed out that, according to the statement made by Dr. K.C. Gupta, gangrene was the cause of loss of blood supply. It was urged that the doctor did not explicitly state that this loss of blood supply was on account of injures sustained in the accident. It was stressed that the Claims Tribunal did not keep this in mind while fixing the amount of compensation. We confess our inability to understand the argument. Dr. D. D. Taiwan (P.W. 1) was examined to prove the injuries received by the claimant. A perusal of the evidence of Dr. D. D. Talwar shows that several of the injuries received by the claimant must have bled. Dr. K. C. Gupta. towards the fag end of his examination said that it was a case of crushed injury and it was in the same sequence that he said that gangrenous condition had developed on account of loss of blood supply. On a cumulative reading of the evidence of the two doctors it was apparent that the loss of blood supply was the outcome of the injuries sustained by the claimantand it was for that reason that the gangrene developed. All the same the claimant had put the doctor in cross-examination and it was open to the appellant to put such further questions to him in cross-examination as he liked if he wanted to show that the loss of blood supply or the development of gangrene was not the outcome of the injuries sustained in the accident. No cross-examination was done in order to establish that fact. It was, therefore, not open to the appellant to contend that the doctor did not say in so many words that the loss of blood supply was due to the injuries. In fact the learned counsel while cross-examining the doctor was presumably conscious of the fact that the statement of the doctor read in its sequence, clearly meant the loss of blood supply was on account of the injuries and it was for this reason that he considered it fruitless to pursue the matter any further in cross-examination. The contention raised is accordingly rejected.

35. Learned counsel lastly urged that in view of the amount of compensation that has been awarded by the Claims Tribunal no interest should be awarded to him under Section 110-CC of the Act. It was further urged that in any case interest should be awarded to the claimant only on that amount which he would have earned during the period of making of the claim and the date of making the payment of compensation. So far as the first part of the contention is concerned, we have already said earlier that Section 110-CC provides for interest being awarded during the period between the making of the application and the making of the payment and that the purpose thereof is to coerce the relevant person not to delay the making of the payment and to compensate the victim for such delay as may occur by awarding interest to him. In that background we see no reason why interest should not be awarded to the claimant in this case.

36. As for the second part of the contention raised by the learned counsel for the appellant, it does not find support from the language used in Section 110-CC which has already been quoted earlier. According to it, it is implicit in the language used in Section 110-CC that interest, if at all should be awarded on the amount of compensation determined by the Claims Tribunal. We find no authority for the proposition that in the event of the Claims Tribunal awarding interest itshould be awarded on such amount only as the claimant would have earned during the period between making of the application and the making of the payment. We accordingly regret out inability to accept that part of the contention raised by the learned counsel for the appellant and it is also accordingly negatived.

37. No other contention having been raised, we find that F.A.F.O. No. 444 of 1975 is also devoid of substance and must fail.

38. In the result F.A.F.O. No, 420 of 1975 and F.A.F.O. No. 444 of 1975 fail in toto and are hereby dismissed with costs. F.A.F.O. No. 458 of 1975 is allowed to this extent that the claimant appellant shall also get interest at the rate of 6% per annum on the amount of compensation from the date on which the claim was filed viz. 11-11-1972 upto the date of the payment thereof. If any amount has already been paid or is paid in future the claimant shall not be entitled to get any interest on that amount for the period subsequent to the payment thereof. The parties shall however, bear their own cost in F.A.F.O. 458 of 1975.


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