S.S. Sodhi, J.
1. On July 7, 1971 at about 9 A.M. there was an accident between an Ambassador car CH-1202 and a military truck RD-19525 on the Chandigarh-Ambala Road, just short of Zirakpur near the place where the road coming from the side of Kalka joins this road. The car was travelling on the main road proceeding towards Zirakpur, while the military truck had come on to this road from the side road on its way to the Chandigarh Airport. The damages suffered by the car in this accident rendered it a total wreck. All the three occupants thereof namely, Mr. V.P. Gandhi, Mr. Mahesh Kumar Khaitan and Mr. L.M. Suri, the driver thereof, sustained injuries. The most serious being those of Mr. V.P. Gandhi.
2. Negligence on the part of the driver of the military truck was adjudged the main cause of the accident, and contributory negligence to the extent of one fourth was also attributed to Mr. L.M. Suri, the car driver. Negativing the claim of immunity from liability raised on behalf of the Union of India, on the plea that the accident had occurred in the discharge of the sovereign functions of the State, the Tribunal awarded Rs. 70,000/-as compensation to Mr. V.P. Gandhi, Rs. 4000/- to Mr. L.M. Suri and Rs. 2000/- to Mr. Mahesh Kumar Khaitan and in addition a sum of Rs. 7800/-was awarded to the Insurance Company for the loss suffered by it on account of the damage caused to the car.
3. It is these awards that new stand challenged by the Union of India, while on the other hand, Mr. Mahesh Kumar Khaitan, Mr. L.M. Suri and the Insurance Company seek enchance composition as per their claims as set out in the cross-objections filed by them.
4. The manner in which the accident took place is the obvious starting point to the controversy here. It was the case of the claimants that the car was proceeding on its correct side of the road at slow speed when all of a sudden the Military truck came on to the main road on its wrong side and that too at a fast speed. In order to avoid a head-on collision, the car turned towards its extreme right side and went about 10 feet off the road on to the kacha portion. The truck driver could not control his vehicle and came on to the kacha portion and hit into the left front side of the car. The cause of the accident, it was pleaded, was the rash and negligent driving of the driver of the military truck.
5. The counter version of the driver of the Military truck and the other respondents was that the truck was proceeding at slow speed on its correct side of the road. It had crossed the 'T' junction of the Chandigarh-Ambala road and was facing towards Chandigarh when the car came from the side of Chandigarh at fast speed and collided against the right side of the military vehicle. It was said that it was the car which was on the wrong side of the road when it collided with the truck. The driver of the car was thus blamed for this accident.
6. There were admittedly three persons travelling in the car, when the accident took place. They being Mr. L.M. Suri, the driver, Mr. Mahesh Kumar Khaitan and Mr. V.P. Gandhi. These were the three persons examined as witnesses to depose to the manner in which the accident took place as per the case of the claimants. A consistent account of the accident was given by these witnesses and a reading of their testimony would show that it contains no contradictions or discrepancies to create any doubt therein. To corroborate this testimony, there is also on record the First Information Report (Exhibit A-1) recorded a few hours after the accident on the statement of Mr. L.M. Suri. This statement was recorded at the Post Graduate Institute, Chandigarh. Another important piece of evidence here is the site plan (Exhibit A-6) which was prepared and proved by Head Constable Daya Singh who was examined as PW. 5. What is perhaps most pertinent and relevant here are the photographs which were taken soon after the accident. These photographs show the position in which the two vehicles stood after the accident. They fully corroborate the version of the claimants and at the same time negative the plea of the truck driver that it was the car which came and hit into the right front side of the truck. The photographs belie this. Here it may be noted that no suggestion was made to AW. 3 Narinder Mohan, who took these photographs that the photographs do not reflect the correct position. There can be no manner of doubt on seeing these photographs that the accident took place off the metalled portion of the road. The car was entirely on the kacha portion of the road and it was the truck that came and hit into the car from the left side of the car. The impact between the two vehicles was of the right front portion of the truck with the left front side of the car, which is consistant with the version of the claimants but contrary to that of the truck driver. This also explains how and why Mr. V.P. Gandhi happened to be the worst effected in this accident. Sitting on the extreme left on the front seat of the car, he was nearest to the Impact of the truck with the car and thus suffered the most injuries.
7. Further there was evidence led by the claimants to the effect that the truck had hit into the car when it was stationary. This was specifically to stated by AW. 4 Mr. Mahesh Kumar Khaitan, a statement which was not challenged in cross-examination. The driver of the military truck RW. 1 Joginder Singh, no doubt struck to his version as given in the written statement namely, that the car hit into the right front side of the truck, but this as has been mentioned above stands belied by the photographs which, it is pertinent to note, were put to him and he came forth with no explanation or clarification to reconcile the position shown therein with his stand. He admitted that he had brought his vehicle from the side road to the main road and what is more that when he saw the car about 100 yards away the car was on its correct side and it was then that it turns to its right. This being so, his taking the truck off the road was clearly uncalled for. RW. 2 Zora Singh and RW. 3 Chaman Lal the other witnesses examined in this behalf, no doubt came-forth with a similar version as that of the truck driver, but this does not in any manner dispel the flaw therein as discussed above.
8. It also deserves mention here that there was a Court of enquiry held into this accident by the Military Authorities and it has come in evidence that it culminated in punishment being awarded to Joginder Singh, the truck driver. This is another pointer to his negligence here.
9. In dealing with cases of the kind here, it must be borne in mind that there is a duty of care owed by and to all road users to avoid harm or injury to them. Drivers of motor vehicles are for that reason also enjoined upon to observe certain rules and regulations particularly these as set out in the 10th Schedule of the Motor Vehicles Act. Here it would be seen that the car was admittedly proceeding on the main road, while the military truck had come on to it from a side road. The manner in which the truck had entered the main road clearly shows that it did so in total disregard of Regulations 6 and 7 of the 10th Schedule of the Motor Vehicles Act. There is no evidence of any slowing down before it came on to the main road or of any effort by the driver thereof to give procedence to the traffic on the main road. The circumstances, therefore, in which the accident occurred lay the blame for it wholly upon the driver of the military truck. There was clearly no warrant for imputing any contributory negligence to the car driver in this case. Taking the car on to the kacha portion/of the road, was in the circumstances the only natural and correct evasive action that could have been taken to avoid collision with the oncoming truck and at any rate it has not been shown how this in any manner impelled the truck driver too to take his vehicle there. The finding of contributory negligence recorded by the Tribunal against the car driver cannot, therefore, be sustained. For the foregoing reasons it must be held that the accident here was caused entirely due to the rash and negligent driving of the truck driver.
10. Turning next to the compensation awarded to the claimants, the sole challenge of the Advocate General, Punjab was to the amount held payable to Mr. V.P. Gandhi for the pain and sufferings and loss of amenities of life resulting from the injuries suffered by him. Rs. 22,000/- was what he had been held entitled to on these counts. When regard is, however, had to the nature and extent of the injuries caused to Mr. V.P. Gandhi and the pain and sufferings he had to undergo as a consequence thereof and also to the permanent disability he is now left with, the amount awarded can by no means be said to be unreasonable or excessive rather it would appear that in awarding compensation here, the Tribunal erred on the other side. In other words, there would have been ample justification in the Tribunal awarding an even higher amount as compensation.
11. It was Dr. D.S. Grewal, Professor of Orthopadic Surgery at the Post Graduate Institute, Chandigarh, who examined Mr. V.P. Gandhi and deposed to his injuries when he came into the witness box as AW. 6. The injuries noted by him on July, 7, 1971 being:
(1) Laceration of the forehead and scalp about 6 to 8 inches long.
(2) Fracture of the right femur.
(3) Fracture of the right patella of the knee joint.
(4) Dislocation of the left hip joint.
(5) Multiple bruises over the leg.
Dr. Grewal further deposed that Mr. V.P. Gandhi was operated upon a few times during the period that he stayed in the hospital. He was eventually discharged on August 28, 1971 and thereafter, he continued to have treatment for physiotherapy as an out-door patient for about six months. After about three months he was allowed to walk with partial weight bearing. On his discharge from hospital, he had to walk with crutches. Dr. Grewal also deposed to the permanent disability suffered by Mr. V.P. Gandhi as a result of the injuries suffered by him. This disability was to his right knee and leg. There was a wasting of his right thigh muscle and irregularity of the joint services of the right knee leading to early esteeartsritis. It was stated that the knee was likely to deteriorate in view of his injuries.
12. Further, it was the unchallenged testimony of Mr. V.P. Gandhi that while in hospital, his left leg was stretched with weights on it in order that it may not become short and the right foot was put in plaster so that it should not move out. He had to lie down in the same position on his back for about four weeks and on account thereof he also developed bed sores in the back. He was in great agony, pain and discomfort as a result of which he could not sleep at night. On his discharge from hospital he had to use crutches which he did for four months and then started walking with the aid of sticks. Now he has a permanent limb while walking and he cannot climb or squat nor play games as he used to and if he walks for more than half a mile, his knee begins to ache.
13. Such being the injuries suffered and the disability caused thereby to Mr. V.P. Gandhi the Tribunal can if at all be faulted only for the inadequacy of the compensation awarded. There is certainly no warrant for any reduction therein.
14. As regards the amounts awarded to Mr. L.M. Suri and Mr. Mahesh Kumar Khaitan, a strong plea was put-forth by the claimants for enhancement of compensation for pain and sufferings.
15. It was the unrebutted testimony of Mr. L.M. Suri that in this accident, he received injuries on his legs, arm and also cuts on his face. Stitches had to be applied to both his legs as also to his chin on which there was a big cut. It was only at 8 P.M. that night that he was permitted to go home from the hospital. He was then advised rest for a week. The stitches on his legs were removed after a week and that on his chin a fortnight later. He had been completely bed ridden during this period and had to be kept on sedatives for a few days. It was further his testimony that in the winter months the stitches on his legs still cause pain. The injury on the chin had left it disfigured. PW 8 Dr. J.G. Jolly of the Post Graduate Institute, deposed that Mr. L.M. Suri remained confined to bed for 15 days as a result of these injuries and he had been attending to him during this period.
16. There was also no challenge to the testimony of PW 4 Mr. Mahesh Kumar Khaitan that in this accident he received injuries on his left elbow, forehead, chest, back and left knee and as a result thereof he had become unconscious. He regained consciousness at the Post Graduate Institute at about noon that day. Eleven stitches had been applied to the injury on his forehead and thirteen on his elbow. He had to rest for 15 days thereafter on medical advise and during this period he remained under the treatment of Dr. Verma of the General Hospital, Chandigarh, who used to visit him almost daily. He was unable to move during these 15 days on account of the pain that he suffered from. He further stated that there had been a permanent disfigurement on his face on account of the scar on his forehead. Further that due to the injuries of his left knee, he cannot properly bend it during the winter months.
17. The nature and extent of the injuries suffered by Mr. L.M. Suri and Mr. Mahesh Kumar Khajtan, do not justify the award of only Rs. 1000/- as compensation for pain and sufferings. This amount is clearly inadequate and accordingly the compensation under this head is enhanced to Rs. 5,000/- in the case of both these claimants.
18. The main contention of the Advocate General, in this case was with regard to the claim for immunity from liability put-forth on behalf of the Union of India. The argument being that the accident had taken place during the discharge of sovereign functions of the State and therefore, the Union of India could not be held vicariously liable. Reference was here made to the evidence on record that the military truck was taking army personnel from the transit camp to the Airport at Chandigarh, when the accident occurred. This, it was stated, was a sovereign function.
19. It is well settled that the State is not liable for the tortious acts committed by its servants is the exercise of its sovereign powers. The question, however, arises whether the act complained of here can be said to have been committed in the discharge of the sovereign functions of the State. After a review of the authorities on the subject. A Full Bench of this Court in Baxi Amrik Singh v. Union of India 1973 P.L.R. 1, set out certain rules as guidance for determining what constitutes sovereign functions of the State. It was laid down therein that for determining whether the claim for immunity should or should not be allowed the nature of the act, the transaction in the course of which it was committed, the nature of the employment of the person committing it and the occasion for it have to be considered. The mere fact that the act complained of was committed by a public servant in the course of his employment was not enough to absolve the Government from liability for damages for the injuries caused by such act. Further, it was held that though the maintenance of the Army was a sovereign function of the Union of India, it did not follow that the Union of India was immune from all liability for any tortious act committed by an army personnel.
20. The further guideline laid down by the Full Bench was that where the employment in the course of which the tortious act had been committed was such that even a private individual can engage in it could not be considered to be a sovereign act or an act committed in the course of delegated sovereign functions of the State.
21. Turning now to the case in hand, it will be seen that what the military truck was engaged in at the time of accident was mere transportation of army personnel to the Airport. This transportation was not part of any military operations or movement. There is no gain-saying that merely taking of army personnel to the Airport was an act which could well have been performed by any individual in his private capacity. In other words, it was not such an act which could not be lawfully performed except by a person delegated with its sovereign powers.
22. Immunity from liability on the ground, that the act complained of had been committed in the discharge of sovereign functions of the State has come into law as a matter of historical incident, but lacks justification for its full extent and ambit as it now exists and is not, therefore, a concept the extension of which the Courts would readily coutenance. Indeed there have been pleas raised even by the Supreme Court for enactment of legislation to regulate and control the claim of the State for immunity. The scope and extent of the immunity of the State under this head must thus be strictly construed.
23. Counsel for the claimants referred here to Union of India and another v. Miss Savita Sharma alias Babli 1979 A.C.J. 1. This was a case where a military vehicle carrying Jawans from the unit Headquarters to the Railway Station met with an accident. The plea for immunity was negatived on the ground that the Jawans coild well have been transported in a private bus or any other vehicle. This act was not such as could only be performed in the exercise of delegated sovereign functions. A similar view was expressed in Nandram and Anr. v. Union of India and Anr. 1978 A.C.J. 215, where the accident had occurred while the military vehicle was carrying army officers from the college of Combat, Mhow to the place of Military exercises. The Tribunal, thus, rightly negatived the plea of immunity raised by the Union of India.
24. In the result, the amount awarded as compensation to Mr. V.P. Gandhi is hereby upheld and affirmed; while the compensation awarded to Mr. L.M. Suri and Mr. Mahesh Kumar Khaitan is enhanced to Rs. 9,000/- and Rs. 7,000/- respectively. The amount payable to the Insurance Company for damage to the car also stands enhanced to Rs. 10,200/- in view of the finding of contributory negligence of the car driver having been set aside. Mr. L.M. Suri, Mr. Mahesh Kumar Khaitan and the Insurance Company shall in addition be entitled to interest on the amount awarded at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded.
25. A plea was also raised on behalf of Mr. V.P. Gandhi for the award of interest on the amount awarded to him too at the same rate, that is, 12 per cent per annum instead of 6 per cent as allowed by the Tribunal. In dealing with this claim it deserves note at the very out-set that the amount awarded along with interest thereon has already been received by Mr. V.P. Gandhi. No appeal or cross-objections have been filed by him to claim any further relief. In the absence thereof no occasion is provided here for the award of any further interest on the amount awarded to him. Counsel for Mr. V.P. Gandhi, here, sought to press-in-aid the provisions of Order 41 Rule 33, Civil Procedure Code, but in the circumstances of this case, it would clearly not be appropriate to exercise such powers here. The object of this Rule is no doubt to enable the Court to do justice between the parties, but grant of enhanced interest here, is not what the concept of 'interests of justice' can justify. The authority cited namely, Sham Lal v. Smt. Janak Dulari and Ors. 1982 P.L.R. 619, is not applicable here it concerned a wholly different situation. The award there had been passed against the driver of the offending vehicle. The owner and insurance company thereof had been absolved of liability by the Tribunal. In an appeal by the driver, the provisions of Order 41 Rule 33, Civil Procedure Code were resorted to in order to hold not only the driver, but also the owner and insurance company jointly and severally liable for the amount awarded. This is thus, not a relevant precedent here. No award of any enhanced amount either by way of interest or otherwise to Mr. V.P. Gandhi is, therefore, warranted.
26. In the result, all the appeals are hereby dismissed and the cross-objections filed therein are accepted. The claimants shall be entitled to their costs in all these matters. Counsel's fee Rs. 500/-.