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Oriental Fire and General Insurance Co. Vs. Shiv Shanker Singh Rathore - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1984)ACC282
AppellantOriental Fire and General Insurance Co.
RespondentShiv Shanker Singh Rathore
Excerpt:
- - 3 tried to avoid the accident and swayed it to the extreme left as a result of which it dashed against the tanker going ahead and was turned upside down resulting in injuries to the driver as well as damage to the tanker to the extent of rs. 5 1000/-for loss of tube well and 3600/- forloss of crop. general damage is that kind of damage which the law presumes to follow from the wrong complained of and which, therefore, need not be expressly set out in the plaintiff's pleadings. pecuniary damages are generally designed to make good the pecuniary loss which is capable, of being calculated in terms of money. 22. the claimant is entitled to special damages as well as general damages. 1,000/- for the loss of tube-well......any special treatment or aid to the injured or claimant for the rest of life. non-pecuniary loss (general damages) include a number of elements. generally these include for sub-heads; (i) damages for mental and physical shock, pain, suffering, already suffered by the claimant or likely to suffer in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters e.g. on account of injury the claimant may not be able to walk, run, sit or loss of marriage prospects, sexual intercourse and loss of other amenities in life; (iii) damages for the loss of expectation of life, e.g. on account of injury the normal longevity of the person concerned is shortened; and (iv) inconvenience, hardship, discomfiture, disappointment, frustration and mental.....
Judgment:

O.P. Saxena, J.

1. This is an appeal under Section 110D of the Motor Vehicles Act against the award dated 7-12-76 made by the Motor Accidents Claims Tribunal (III Additional District Judge) Kanpur.

2. The facts giving rise to this appeal are that on 14-4-73 at about 8 A.M. at Kalpi Road, opposite Satnam Petrol Pump within the limits of village Shahpur, P.S. Kalyanpur, District Kanpur, claimant Shiv Shanker Singh Rathor met with an accident while he was coming to Kanpur on motor cycle UPC 5149. The claimant had a farm at village Gangaganj and he returned from there on his motor-cycle at about 7.30 A.M. on his way back to Kanpur to join duty at the Sub-Divisional Office of the Life Insurance Corporation, Kanpur. He was employed there as a clerk and his basic salary was Rs. 325/- per mensem with Rs. 400/- as dearness allowance and Rs. 20/- as House Rent allowance. He also got 10% of the basic pay as bonus. There is an Indian Oil Depot on the Kalpi-Kanpur road which goes from west to east. After the Depot there is Satnam Petrol Pump. When the claimant reached in front of the Petrol Pump, the tankers were seen coming from the side of Kanpur. Tanker No. UPG 8537 was behind. The driver of the tanker tried to overtake the other tanker as probably he wanted to reach the Indian Oil Depot first. While doing so, the tanker dashed against the motor-cycle of the claimant. The motor-cycle was smashed and the claimant was seriously injured. It was said that the accident took place due to rash and negligent driving by the driver of the tanker. Opposite party No. 2 is the owner of the tanker. Opposite party No. 3 Ram Shanker was the driver. The accident was seen by P.W. 5 Chandra Prakash and P.W. 11 Kunji Lal. The latter took the claimant to the hospital.

3. On 14-4-73 at 8 A.M. the claimant was admitted in the Lala Lajpat Rai Hospital, Kanpur for treatment.

4. On 14-4-73 at 9 A.M. Dr. R.K. Shukla examined the injuries of the claimant and prepared report Ex. 31. The claimant had 5 injuries and X-ray was advised.

5. On 14-4-73 at 9.40 A.M., a report of the occurrence was lodged by P. W. 2 Vishwanath Singh, the father of the claimant at P.S. Kalyanpur. The opposite party No. 3 was described as the truck driver of Tanker No. UPG 8537.

6. On 15-10-73 the claimant gave an application for Rs. 50,000/- as compensation.

7. The application was contested by the opposite parties. It was denied that the accident took place due to the rash and negligent driving of the tanker by opposite Party No. 3. It was said that the claimant was coming on the motor-cycle at a reckless speed and he could not control the motor-cycle on account of which the accident took place. It was further said that the opposite Party No. 3 tried to avoid the accident and swayed it to the extreme left as a result of which it dashed against the tanker going ahead and was turned upside down resulting in injuries to the driver as well as damage to the tanker to the extent of Rs. 3075/-. The amount of compensation claimed was also challenged.

8. The Tribunal considered the evidence on the record and awarded the claimant a sum of Rs. 39,700.17P. The following chart will show the amount claimed by the claimant and the amount awarded by claimant and the amount awarded by the Tribunal:

Underhead

Amountclaimed

Amountawarded

1. Medical expenses

2055.71

1535.67

210.50

(Hospitalcharges)

60.00

(X'raycharges)

2. Compensation for damage caused to the motor-cycle

5200.00

3544.00

3. Loss of salary for 6 months as the claimant was allowed sick leave on halfpay

4236.00

2400.00

4. Salary paid to P.W. 4 Laxman Das who was employed by the claimant as anattendant during the period he was confined to bed.

900.00

900.00

5. Mental 'worriness'.

10000.00

31050.00

6. Physical 'worriness'

15000.00

Totalaward

39700.17

The claim for the following items was refused by the Tribunal:

1. Foodand treatment

3000-

2.Expenses on accident

200

3.House rent paid to landlord

600

4.Compensation for loss caused the farm including 2400/- paid to P.W. 6 YashKaran Singh vide receipt Ex. 5 1000/-for loss of tube well and 3600/- forloss of crop.

7000

Total

10,800

9. The Tribunal accepted the claimant's version that accident took place due to rash and negligent driving of the oil tanker by opposite party No. 3 Ram Shanker. It pointed out that there was no rebuttal of the evidence adduced by the claimant in this regard. Besides examining himself as P.W. 1, he examined 2 eye witnesses, namely P.W. 5 Chandra Prakash and P.W. 11 Kunji Lal and proved report 6 a lodged by his father P.W. 2 Vishwa Nath Singh. It awarded a sum of Rs. 39,700.17 P. as compensation with interest at 6% per annum on the amount of compensation from the date of the application for compensation to the date of payment.

10. The claimant has submitted to the award whereby the compensation claimed under the heads referred to above and amounting to Rs. 10,800/-was refused. The opposite parties have come up in appeal.

11. Sri A.B. Saran, learned Counsel for the appellants did not dispute the finding that the claimant met with an accident and received injuries due to the rash and negligent driving of oil tanker number U.P.G. 8537 by opposite party number 3, Ram, Shanker. He, however, assailed the quantum of damages awarded by the Tribunal.

12. Sri S.M. Dayal, learned Counsel for the respondent supported the award on the question of compensation.

13. As far as the medical expenses are concerned there is oral evidence of P.W. 1 Shiva Shanker Singh, P.W. 7 Ram Milan Singh X-ray technician, P.W. 8 Ram Kumar of Vijai Medical Stores and P.W. 12 Dr. R.K. Shukla. Exs. 13,32 and 33 are X-ray receipts. Exs. 34 to 44 are the medical prescriptions. Exs. 15 to 26 are the bills of Vijai Medical stores. The Tribunal rightly awarded the sum of Rs. 1,536.67 p. towards the purchase of medicines, Rs. 210.50 p. towards the hospital charges and Rs. 60/- towards the X-ray charges.

14. The evidence of P.W. 1 Shiv Shanker Singh, P.W. 5 Chandra Prakash and P.W. 11 Kunji Lal shows that the motor cycle was completely smashed in the incident. Ex. 25 is the copy of the inspection report duly proved by P.W. 9 H.C. Shyam Kishore Tewari. Paper number 75-Kha is the April 1976. It was observed that every part of the vehicle was in pieces. The Tribunal allowed depreciation for two years and rightly awarded a sum of Rs. 3,544/- as compensation.

15. P.W. 1 Shiv Shanker Singh claimant and P.W. 10 Lallan Prasad, assistant in the L.I.C. Office were examined in support of claimant's version regarding loss of salary. The claimant was allowed sick leave on half average pay for the period from 14.4.1973. to 18.11.1973. Ex. 30 is the certificate. Ex. 28 is the duplicate of the income of the claimant for the period from 1.4.1972 to 31.3.1973. He drew Rs. 3,900/- as basic pay and special pay. Rs. 240/- as house rent allowance and Rs. 7,953.63 p. as D.A. and other allowances. Ex. 29 is the certificate of the Life Insurance Corporation for the amount paid to the claimant during 1974-75. The claimant himself deposed that his basic salary w as Rs. 325/- per mensem and the D.A. drawn by him was Rs. 400/- per mensem. He also drew Rs. 20/- per mensem as house rent allowance. In view of the evidence on the record the Tribunal rightly awarded Rs. 2,400/- as loss of salary for six months.

16. The evidence of P.W. 1 Shiv Shanker Singh and P.W. 4 Laxman Das shows that the claimant engaged the latter as an attendant during the period he was ill and paid him salary @ Rs. 150/- per mensem Ex. 8 is the receipt for a sum of Rs. 900/- received by Laxman Das. The Tribunal was justified in awarding Rs. 900/- under this head.

17. P.W. 1 Shiv Shanker Singh claimant and P.W. 12 Dr. R.K. Shukla, the doctor who examined the injuries of the claimant and also supervised his treatment were examined to prove the nature of the injuries caused to the claimant. Ex. 31 is the injury report prepared by Dr. R.K. Shukla on 14.4.1973 at 9.00 A.M. The claimant had five injuries out of which injury number 1 was grievous. There was a fracture of the Shaft of the left femur bone lower one-third. The claimant was admitted in the hospital between 14.4.1973, and 18.5.1973 at the first instance Ex.47 is the bed head ticket. The claimant was again admitted in the hospital between 25.8.1973 and 5.10.1973. Ex. 46 is the bed head ticket. The claimant remained under plaster till 25.11.1973. It appears that his setting of the bones was not successful and the claimant had to undergo an operation. Nail traction was considered necessary. P.W. 12 Dr. R.K. Shukla deposed that the injury caused to the claimant resulted in permanent disability, that his left leg is about 2' shorter and that he cannot bend his left knee and cannot squat on the ground. In his cross examination he stated that with the passage of time and the exercises for the limb movement the stiffness would decrease and there could be improvement in the movement of the limbs. The claimant limps at the moment and this may also lessen by passage of time. P.W. 1 Shiv Shanker Singh stated that his promotion is due for the last three or four years. He denied the suggestion that he could not get promotion because he does not want to leave Kanpur.

General damages are compensation for general damage; special damages for special damage. General damage is that kind of damage which the law presumes to follow from the wrong complained of and which, therefore, need not be expressly set out in the plaintiff's pleadings. Special damage, on the other hand, is damage of such a kind that it will not be presumed by the law and must, therefore, be expressly alleged in those pleadings so that the defendant may have due notice of the nature of the claim.

See Law of Torts, Eighteenth Edition by R.F.V. Heusten and R.S. Chambers, page 498.

In Sushila Pandey v. New India Assurance Co. Ltd. A.I.R. 1983 Alld. 69 it was held on page 73:

Damages which are awarded in the form of compensation to a claimant are of two kinds. Pecuniary, which also known as special damages and non-pecuniary, which are classified as general damages. Pecuniary damages are generally designed to make good the pecuniary loss which is capable, of being calculated in terms of money. Non-pecuniary damages are those which are incapable of being assessed by arithmetical calculation. Pecuniary damages generally include four sub-heads, (i) expenses incurred by the claimant in respect of injury which may include medical expenses, special diet., cost of nursing or attendant; (ii) loss of earning or profit upto the date of trial; (iii) loss of earning capacity which may include incapability in the labour market, loss of earning on account of termination of service or discontinuance of any trade, business or profession, and (iv) other material loss which may require any special treatment or aid to the injured or claimant for the rest of life. Non-pecuniary loss (general damages) include a number of elements. Generally these include for sub-heads; (i) damages for mental and physical shock, pain, suffering, already suffered by the claimant or likely to suffer in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters e.g. on account of injury the claimant may not be able to walk, run, sit or loss of marriage prospects, sexual intercourse and loss of other amenities in life; (iii) damages for the loss of expectation of life, e.g. on account of injury the normal longevity of the person concerned is shortened; and (iv) inconvenience, hardship, discomfiture, disappointment, frustration and mental stress in life. While indicating the various sub-heads we have tried to include matters which should be considered by the Tribunal in determining compensation. It is always appropriate to consider the pecuniary and non-pecuniary damages separately having regard to the various sub-heads on the basis of the evidence produced by the parties. The heads and the sub-heads as mentioned above are not exhaustive in nature.

18. In Babu Mansa v. Municipal Corporation and Ors. 1978 A.C.J. 485, a boy aged 15 years received multiple injuries in the course of the accident and his right leg was fractured and he was limbing on account of shortening of the leg by cm. A sum of Rs. 15,000/- was awarded as general damages.

19. In Devendra Raj Mehta v. Kunwar Sen 1980 A.C.J. 225, there was an I.A.S. Officer aged 32 years. He sustained severe injuries. There was shortening of right leg by 1' which resulted in limping. The sum of Rs. 10,000/- awarded as general compensation was enhanced to Rs. 40,000/- in appeal.

20. In Union of India v. P.S. Mahal 1976 A.C.J. 146, there was one inch shortening of the left lower limb. The High Court enhanced the amount of general compensation from Rs. 30,000/- to Rs. 40,000/-.

21. In the last two cases there was permanent disability while in this case there was partial disability assessed by the Tribunal at 10%. The general damages have to be determined in the light of the aforesaid precedents.

22. The claimant is entitled to special damages as well as general damages. The claimant is entitled to get Rs. 8,650/- as special damages as per details given above. The Tribunal has awarded a further sum of Rs. 31,050/-as special damages. The Tribunal proceeded on the basis that the earning capacity of the claimant was at least Rs. 1,125/- per mensem. This included Rs. 325/- per mensem as income from the farm. The claimant was 37 years old at the time of the accident and his life expectancy was fixed at 60 years. The Tribunal determined that the claimant would have earned a sum of Rs. 3,10,500/- during the next 23 years. The Tribunal awarded 10% of this amount and fixed the damages at Rs. 3,10,50/-. The Tribunal did not award general damages.

23. We are of the opinion that the approach of the Tribunal is erroneous. Ex. 28 shows that the claimant drew Rs. 12,153/- as emoluments and paid Rs. 163/- as Income Tax in the financial year 1972-73. Ex. 29 shows that the claimant drew Rs. 15,081.65 P. as emoluments and paid Rs. 721/- towards Income Tax during the financial year 1974-75. paper number 65 Ka is the pay slip for March 1975. It shows the basic salary of the claimant as Rs. 410/-. His gross salary was shown as Rs. 1,195.70 P. The claimant was employed as a Clerk in the Life Insurance Corporation of India. He continued to be employed there. He is also drawing his increments. There is no evidence to show that his future prospects have been adversely affected. The claimant has actually suffered no loss of salary or allowances. As the claimant is drawing his salary, dearness allowance and other allowances as usual, the Tribunal could not assess damages for loss of future salary and allowances at the rate drawn by him on the date of accident. As far as loss of agriculture is concerned, there is no evidence to show as to what was the income of the claimant from the agricultural land in the year prior to the accident, what was the income in the year of the accident and what income could be expected in future. The applicant is employed in the Life Insurance Corporation of India. He could not look after the cultivation himself and he had to engage a labourer. There is no evidence to show that there is none else in the family of the claimant to look after the cultivation. In the circumstances it cannot be reasonably said that the claimant will suffer any loss of agriculture on account of the injury caused to him. The Tribunal itself did not think it proper to allow the claim for Rs. 2,400/- as the salary paid to P.W. 6 Yash Karan Singh who was employed on the farm, Rs. 3,500/- for the loss of crop and Rs. 1,000/- for the loss of tube-well. In the circumstances the Tribunal could not assess the income from the agriculture at Rs. 325/- per mensem as a loss to the claimant and no damage could be awarded on this account.

24. The fact, however, remains that the claimant has suffered an injury which has caused him mental pain and suffering. There has been a loss of amenities of life as he can not move about freely. The claimant may feel embarrassed in life on account of limping. In view of the precedents we deem it proper to award a sum of Rs. 20,000/- as general damages.

25. We, therefore, hold that the Tribunal ought to have awarded a sum of Rs. 8,650.17 P. as special damages and Rs. 20,000/- as general damages.

26. We accept the contention of the learned Counsel for the appellant that appellant number 1, Oriental Fire & General Insurance Co. Ltd. could be liable only to the extent of Rs. 2,000/- out of Rs. 3,544/- awarded as compensation for damages caused to the motor cycle. We may refer to Section 95(2)d of the Motor Vehicles Act.

27. No other point was pressed before us.

28. The appeal is partly allowed and the award made by the Tribunal is modified. The claimant is awarded a sum of Rs. 28,650.17 P. as compensation, interest @ per annum from the date of application till the date of payment and the costs of the proceedings. All the opposite parties will be jointly and severally liable to the extent of Rs. 27,106.17P., interest payable and the costs. Appellants numbers 2 and 3 will be jointly and severally liable for the balance of Rs. 1,544/. As the appellant number 1, the Insurance Company was under the policy liable to indemnify appellant number 2, the insurer, the liability of appellant No. 1 will be to the extent of Rs. 27,106.17 P., interest payable and the costs. The costs of the appeal will be on the parties.


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