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State of Kerala and ors. Vs. P. Vijayakumaran Nair - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberM.F.A. No. 104 of 1979
Judge
Reported inAIR1983Ker61
ActsMotor Vehicles Act, 1939 - Sections 110B
AppellantState of Kerala and ors.
RespondentP. Vijayakumaran Nair
Appellant AdvocateGovt. Pleader
Respondent Advocate K.K. Babu,; U.K. Raveendran,; C.P.S. Prasad and;
Cases ReferredWest v. Shephard
Excerpt:
.....fate of claimant - held, appeal dismissed and additional amount of rs.10000 awarded as compensation. - - in this situation the tribunal found it safe to award him rs. sayar kanwar, air 1976 raj 173, the failure to produce bills or vouchers in support of such claims is not fatal. counsel for the petitioner complained that the observation that he must havepassed through intense pain, suffering and discomfort is an inaccurate assessment and overlooks the petitioner's unchallenged evidence that he had terrible pain during the period he was in plaster and even thereafter, that subsequent to the removal of the plaster also he could not walk for about 3 months, that even now he could not walk freely, that he could not climb steps without help and that he could bend his right knee only..........for nearly 4 months. he concluded from this that the petitioner must have passed through intense pain, suffering the discomfort during this period. counsel for the petitioner complained that the observation that he must havepassed through intense pain, suffering and discomfort is an inaccurate assessment and overlooks the petitioner's unchallenged evidence that he had terrible pain during the period he was in plaster and even thereafter, that subsequent to the removal of the plaster also he could not walk for about 3 months, that even now he could not walk freely, that he could not climb steps without help and that he could bend his right knee only partially. he also drew attention to the statement elicited in the cross-examination that he was unable to drive the motor-cycle and that.....
Judgment:

Balagangadharan Nair, J.

1. This appeal by respondents 1 to 3 in O. P. (M.V.) No. 55 of 1977 before the Motor Accidents Claims Tribunal, Trivandrum arises out of its judgment awarding Rs. 21,000/- as damages to the petitioner in the Original Petition who is the respondent in the appeal. The appellants are respectively the State, the State Insurance Officer and the driver of a Jeep Wagon KLR 3104 owned by the State and which was involved in the accident.

2. The petitioner was at the material time a Telephone Operator in the P. & T. Department. On 28-1-1977 at about 8.15 P.M. he was riding on his motor-cycle KLR 5482 with his wife and child on the pillion, from west to east along the Palayam-Vollayam-balam road, south of the Kanakkimnu Palace in Trivandrum. The road at the point is 40 feet wide. According to the petitioner he was going about 5 feet from the left (northern) edge of the road. The wagon KLR 3104 which was being driven by the third respondent at a high speed from east to west came along the middle of the road and without giving any signal suddenly turned to the right (north) to enter the Palace compound. While thus turning, the right side of the wagon hit the right thigh of the petitioner throwing him, the motor cycle and the pillion riders to the ground. He sustained major injuries but his wife and child escaped with minor injuries. The third respondent then stopped the wagon and ran west. It was the last day of the flower show which had been going on in the Palace compound and the road and the compound were fully illuminated. According to the petitioner, when he came near the scene of accident there was a police party on duty at the palace gate. After the accident the petitioner was removed to the Medical College Hospital, Trivandrum and he was under treatment for a long period. After his discharge he filed the petition claiming Rupees 70,000/- as damages and subsequently by an amendment he enhanced the claim to Rupees Rs. 1,20,000/-. The State which was the first respondent and the owner of the wagon, filed a written statement denying that the 3rd respondent, the driver was guilty of any rash-ness or negligence in driving the wagon and that he was responsible for the accident.

3. The Tribunal found that the accident was caused by the rashness and negligence of the driver and that accordingly the respondents were liable. As for damages, the Tribunal awarded the petitioner Rs. 21,000/-under the following heads : (i) Loss of earnings Rs. 3,500/-. (ii) Transport charges Rs. 200/-. (iii) Extra nourishment Rs. 1,000/-. (iv) Medical treatment Rs. 1,000/-. (v) Damages to the motor-cycle Rs. 300/-. (vi) Pain and suffering Rs. 10,000/-. (vii) Permanent disability and the loss of earning power Rs. 5,000/-.

4. The appellants challenge the entice award while the respondent-petitioner by a memorandum of cross-objections claims Rs. 25,000/- in addition to the amounts awarded for pain and suffering and impairment of enjoyment of life and capacity.

5. Starting with the appellant's liability for damages, the Tribunal has definitely found that the driver was guilty of rashness and negligence in driving the wagon and in causing the accident involving injuries to the petitioner. Against this finding the learned Government Pleader who appeared for the appellants could not raise any effective argument but nevertheless we shall make a brief reference to the evidence to indicate that it amply bears out the finding. The road at the stone of the accident was straight running east and west and was 40 feet wide with a footpath of about 4 metres on either side. The scene mahazar Ext. A-5 which was prepared by the Police and which is not disputed by either party shows that there were two lamp posts, one on the northern foot path and the other on the southern foot path and that the scene was 11.62 metres south of the former and 11.27 metres north-east of the latter. It was 9.5 metres north of the southern edge of the tarred portion of the road. This means that in terms of feet it was at a point 32 feet from the south, that a vehicle coming from east has to turn north to enter the Palace compound. This circumstance supports the evidence of P. W. 1 that the Jeep struck him on the road while entering the Palace compound. As for the evidence of the third respondent (R. W. 1) that the accident took place not on the road but after the vehicle had turned north to enter the palace compound and that the petitioner was entering the road from the palace compound, it was rejected by the Tribunal. In the notice of which Ext. A-2 is a copy the petitioner had set out the same version of the incident as he had given in the petitionand in his testimony. No reply was given 10 Ext. A-2. In the petition he has positively alleged that the accident took place on the load while he was proceeding east and while the jeep was attempting to turn right (north) with a view to entering the palace compound. The written statement does not deny the definite statement in para 10 of the petition that the jeep struck P. W. 1 while he was riding along the road west to east. Further the written statement admits that when the collision took place the vehicles were coming in opposite directions. The pleadings thus not only support the petitioner's version but also show that the evidence of the driver that the accident occurred white the petitioner was emerging from inside the palace compound is a story put out only in evidence. P. W. 1 has given evidence that he was proceeding along the proper side, that is the left side of the road. The jeep admittedly turned north even according to R. W. 1 to enter the palace compound. This means that the accident must necessarily have taken place at this stage, a point which is confirmed by the mahazar Ext. A-5. R. W. 1 has put forward another story, that as a car was going ahead of the jeep he could not see the petitioner's motor-cycle. For one thing, if there was a car in the front obstructing his vision he ought to have slowed down the jeep and should have been on the look out for any oncoming vehicle. It is only reasonable to think that if the third respondent had taken such precaution the accident would not have taken place at all. His statement that he gave a signal to turn to 'he right and that the traffic constable on duty permitted him to do so is not only contradicted by P. W. 1 but is unsupported by any material. In the circumstances, the jeep was turned to the north at a time when the motor-cycle was very dose by. In this state of the record the Tribunal rightly held that the accident was caused by the rashness or negligence of the third respondent.

6. That the petitioner sustained injuries as a result of the accident and was under treatment in the Medical College Hospital was not disputed either before the Tribunal or before us. It is therefore necessary only to notice the nature of the injuries and disability sustained by him as they have a bearing on the amount of damages that could be properly awarded to the petitioner. Ext. A-1, the certificate issued by the Assistant Professor of Orthopaedics of the Medical College, Trivandrum shows that the petitioner was admitted in the hospital on 29-1-1977 for (1)Comminuted fracture shaft of right femur, (2) Oblique fracture of shaft of 3rd meta-carpal Rt. (Short Aru Cart). It further gives the following details:

'The fracture metacarpal was reduced and SAC given. Skeletal traction was applied for the fracture of the right Femur on 31-1-1977 which was removed on 25-2-1977 and a Hip Spica applied and was discharged on 28-2-1977.

The plaster was removed on 8-6-1977 and the patient was asked to undergo physiotherapy as out-patient.

The disability arising from the above injuries is assessed as follows:

1. 100% (one hundred per cent) temporary disability for a period of four months from the date of admission.

2. 50% (fifty per cent) temporary disability for a further period of three months. He is still undergoing treatment as out-patient.

Hence the permanent disability will be assessed later on.'

7. Ext A-2 dated May 24, 1978 is the further certificate issued by the same Assistant Professor. Besides the details in Ext. A-l this certificate discloses the following:

'The disability arising from the above injuries is assessed as follows:

1. 100% (One hundred per cent) temporary disability for a period of four months from the date of admission.

2. 50% (fifty per cent) temporary disability for a further period of three months.

3. The permanent disability is assessed as 20% (Twenty) since he has shortening of the right lower extremity by 1-5 cm. and has limitation of movement of the right Knee joint 30.'

In his evidence the petitioner has stated that till the plaster was removed on 8-6-1977 he was completely bed-ridden and was in severe pain. All this evidence is beyond challenge and has been accepted by the Tribunal and nothing has been urged before us to induce a contrary view.

8, Turning to the quantum of damages, we may preface the discussion by observing that the person physically injured may recover compensation both for his pecuniary losses and non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, namely the loss of earnings and other gains which he 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. The Courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities oflife and loss of expectation of life. The question whether the damages should be itemised or whether it is more 'proper to make a global award need not be discussed as the Tribunal has itemised the award and nothing turns upon the propriety of the dichotomy in the appeal. The concept of pecuniary loss is self-explanatory which requires no elaboration but the kindred concept of non-pecuniary loss justifies a brief exposition. In the following discussion we have thought it more convenient to draw upon Me Gregor on Damages rather than cull relevant passages from decided cases. 'Non-pecuniary loss is a very different field. Little can be stated with certainty as to the amount of damages awardable for such loss caused by personal physical injury. Indeed full compensation cannot be given in the sense that no amount can fully compensate for a serious physical injury. Beyond this, no yard-stick exists for measuring in money the compensation to be accorded a given amount of physical pain or mental, suffering because, as far as money goes, the loss is imponderable, and any amount awarded must be in the nature of a conventional sum.' (Mc Gregor on Damages, 14th Edition, para 1211). 'Pain and suffering is the first of the two main heads of non-pecuniary loss. Both past and prospective pain and suffering are covered, although the past loss is not claimed as special damages in the pleadings as it is not quantifiable with exactitude. Past and prospective loss are therefore claimed together as general damages.' (Ibid para 1212). 'The term 'pain and suffering' has been used so constantly by the Courts without any clear distinction between the two words that it is now a term of Article It has been suggested that 'pain' is the immediately felt effect on the nerves and brain of some lesion or injury to a part of the body, while 'suffering* is distress which is not felt as being directly connected with any bodily condition. On this analysis pain needs no further elucidation; it may be noted that it will include, for the purpose of damages, any pain caused by medical treatment or surgical operation rendered necessary by the 'injury inflicted by the defendant.' (Ibid paragraph 1213). 'Loss of amenities of life is the second of the two main heads of non-pecuniary loss. ' (Ibid para 1218) 'This head of damage (Loss of amenities of life) concentrates on the curtailment of the plaintiff's enjoyment of life not by the positive unpleasantness of pain and suffering but, in a more negative way, by his inability to pursue the activities he pursued beforehand. Birkett L.J. put it thus in Manley v. Rugby Portland Cement Co. (1951) C. A. No. 286 There is a head of damage which is sometimes called loss of amenities; the man made blind by the accident will no longer be able to see the familiar things he has seen all his life, the man who has had both legs removed will never again go upon his walking excursions -- things of that kind -- loss of amenities.' '(Ibid para 1219) Later in the same para the learned author observes that 'The appearance of loss of amenities as a distinct head of damage is however, a modern development. Not until the middle of the century does it, begin to become mentioned as such in the reports.' He continues : 'It is doubtful whether this was intended to reflect a substantive change in the law; the idea of loss of amenities can be subsumed under 'pain and suffering,' taking that term in its wide connotation, and no doubt that was what had been done with this element of loss before 1950.' As to the award the author states: 'As with pain and suffering it is virtually impossible to give clear guidance on amounts, since here too awards vary with the particular injury, the particular circumstances and the particular judge. Before 1970 there was the difficulty that judges have tended to make global awards for all the plaintiff's losses, pecuniary and non-pecuniary, and today, even where they are separated, a single figure is generally arrived at which brackets the compensation for loss of amenities with the compensation for pain and suffering.' (Ibid para 1222).

9. With this background we proceed to consider the amounts awarded by the Tribunal to determine whether they require any modification.

1. The petitioner sustained the injuries on 28-1-1977 and he was on half pay leave for 1 1/2 months and on loss of pay for the remaining period until he rejoined duty on 8-9-1977. He claimed Rs. 5,000/- as loss of earnings for the period of absence of 7 months and 10 days on the footing that he had been getting a salary Rs. 559/- and an overtime allowance of Rs. 200/- a month. Although he has produced no records in proof of these emoluments the former was not disputed while the latter was. In this situation the Tribunal found it safe to award him Rs. 3,500/-. In our view no reasonable exception could be taken to the award considering his admitted salary and the period during which the petitioner was on leave on half pay and loss of pay. Although no specific ground has been taken in the memorandum of cross-objections on this point counsel for the petitioner wanted the awardto be raised taking into account his overtime allowance. But the petitioner has not chosen to prove what sum, if any, he was getting as overtime allowance despite its being challenged by the appellants. We find no ground to make any modification either way.

2. A sum of Rs. 200/- has been awarded by the Tribunal as expenses of the petitioner's transport to and fro the hospital. Considering the nature of the injuries suffered by the petitioner and the number of occasions he had to go to the hospital even after discharge for physiotherapy the amount awarded is only reasonable, even though he has not produced bills or vouchers to support the claim.

3. The Tribunal has awarded a sum of Rs. 1,000/- each for extra nourishment and medicines as against Rs. 2,000/- claimed by the petitioner under each count. Here again no bills or vouchers have been produced; but as held by this Court in Swaraj Motors Private Ltd., Kottayam v. T.R. Raman Filial, AIR 1968 Ker 315 which has been followed in United India Fire and General Insurance Company Ltd. v. Mst. Sayar Kanwar, AIR 1976 Raj 173, the failure to produce bills or vouchers in support of such claims is not fatal. We confirm the award.

4. The petitioner had asked for Rs. 800/- on account of damages caused to his motor cycle as a result of the accident. He did not produce any record by way of bills or vouchers to prove the amount spent on repairs. The Tribunal therefore disallowed the amount claimed but as it was in evidence from the petitioner's testimony and Ext, p-7, the report of the Assistant Motor Vehicles Inspector, that the motor-cycle had sustained damage the Tribunal awarded Rs. 300/- on this account. We see no reason to upset the award.

10. As against Rs. 60,000/- claimed by the petitioner on account of pain and suffering the Tribunal allowed Mm Rs. 10,000/-which it thought was reasonable. While the petitioner seeks enhancement of the sum by Rs. 25,000/- the appellants contend that even this award is excessive. The Tribunal has found that the petitioner had suffered extensive injuries and undergone intensive treatment for several months, that he had been put on cast skeletal traction and hip spica and that he was on plaster for nearly 4 months. He concluded from this that the petitioner must have passed through intense pain, suffering the discomfort during this period. Counsel for the petitioner complained that the observation that he must havepassed through intense pain, suffering and discomfort is an inaccurate assessment and overlooks the petitioner's unchallenged evidence that he had terrible pain during the period he was in plaster and even thereafter, that subsequent to the removal of the plaster also he could not walk for about 3 months, that even now he could not walk freely, that he could not climb steps without help and that he could bend his right knee only partially. He also drew attention to the statement elicited in the cross-examination that he was unable to drive the motor-cycle and that he goes to the office in a taxi or auto-rickshaw. The third respondent who gave evidence as R. W. 1 -- and who is the only witness for the defence -- has stated that after the accident he had been seeing the petitioner go to the office on the pillion of a scooter or the motor-cycle of his friend. While the appellants ask for reduction of the compensation the petitioner claims an enhancement. On the materials on record the claim made by counsel for the petitioner has force and the argument on behaif of the appellants only merits rejection. Now it is established that the power of the appellate Court to interfere with award of compensation is circumscribed. The ground upon which a Court of Appeal would interfere by re-assessment of the damages has been stated by Groor L. J. in Flint v. Lovell, (1935) 1 KB 354 (CA) in the following passage which has been approved by the House of Lords in Davies v. Poweli Duffryn Collieries, (1942) AC 601, and by the Privy Council in Nanco v. British Columbia Electric Ry., (1951) AC 601, 'This Court will be disinclined to reverse the finding of a trial Judee as to the amount of damages merely because they think that if they had fried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law. or that the amount awarded was so extremely high or so very small as to maks it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.' Thus the two grounds of interference are that the judge has acted on a wrong principle of law and that he has made an entirely erroneous estimate of the damages. Although the Tribunal cannot be said to have acted upon any wrong principle of law we feel that the oversight of the pathetic condition of the petitioner which isestablished by his evidence and corroborated by the testimony of R. W. 1 has led to an entirely erroneous estimate of the damages on this head- If these aspects had been kept in mind by the Tribunal the award would have been on a higher side, considering the extent of the pain and suffering undergone by the petitioner. In this situation, we are satisfied that a sum of Rs. 15,000/- which is Rs. 5,000/- more than the award would be adequate.

11. The only item that remains to be considered is the compensation for permanent disability and loss of earning power. To start with the petitioner claimed damages of Rs. 5,000/- under this head, but by an amendment of the petition he raised it to Rs. 50,000/-. This was alone in the light of the medical certificate Ext. A-2 which was issued only subsequent to the institution of the petition. Ext. A-1 which is dated 20-7-1977 assessed only the temporary disability of the petitioner and stated that as he was undergoing treatment his permanent disability would be assessed later on. This assessment was made in Ext A-2 dated 24-5-1978 and has already been extracted above. As the assessment of permanent disability was made only subsequent to the petition no adverse inference could be drawn against the petitioner for limiting ti'e claim to Rs. 5,000/-in the petition and then enhancing it to Rs. 50,000/- by the amendment. No attack was made before us against Ext. A-2 or the evidence of P. W. 1 as to his permanent disability nor does any attack appear to have been made before the Tribunal. That the petitioner has suffered permanent disability is therefore beyond doubt. The attempt made by the Government Pleader to play down the disability has therefore no merit. The petitioner asks for enhancement of the sum to Rs. 10,000/-. This claim has to be assessed bearing in mind the principles discussed above on which this Court would interfere with an award of damages. The petitioner who is a Telephone Operator has stated that his next promotion is as a Junior Engineer for which he was qualified, subject to his passing a written test, that on account of his disability he could not now expect any promotion and that since the accident he has been shifted to a section with lighter work. This evidence has not been challenged in the cross examination. The petitioner has suffered serious injuries and partially permanent disability which has affected not only his capacity to work and move about but has also diminished his enjoyment of life. This disability will outlive his official career and will be a dragtill the end of his life. The Tribunal has not been quite alive to the full implication and seriousness of the lifelong disability and the consequent loss of amenities that is his fate. Although this head of non-pecuniary damage is as difficult to assess in terms of money as the head of pain and suffering because full compensation cannot be given in the sense that no amount can fully compensate for a serious physical injury, it is profitable to quote the following statement from McGregor on Damages, para 1211 at page 830:

'Here a solution can only be found by taking as the test what our particular society would deem to be a fair sum, such is would, in the words of Lord Devlin in West v. Shephard, (1964) AC 326, allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing.' '

The amount of Rs. 5,000/- is far too low under this head and will not satisfy even the general test propounded by Lord Devlin. We feel that an additional sum of Rs. 5,000/- as claimed by the petitioner in the memorandum of cross-objections could be reasonably, and legitimately awarded under this head We dismiss the appeal and allow the memorandum of cross-objections in part by granting the petitioner-respondent on additional amount of Rs. 10,000/- as compensation. The appellants will pay the petitioner's costs in the appeal. Parties will bear their costs in the memorandum of cross-objections.


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