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Himachal Road Transport … vs Vinod Mahajan And Ors. on 15 May, 1989

Himachal Pradesh High Court
Himachal Road Transport … vs Vinod Mahajan And Ors. on 15 May, 1989
Equivalent citations: II (1989) ACC 337
Author: B Singh
Bench: B Singh


JUDGMENT

Bhawani Singh, J.

1. The present appeal under Section 110-D of the Motor Vehicles Act challenges the award of the Motor Accident claims Tribunal, Hamirpur, in claim Petition No. 2 of 1977 decided on 8-9-1981 as the Himachal Pradesh Road Transport Corporation has a grievance against this award.

2. The brief facts giving rise to this appeal are that respondent No. 5, Sh. Hari Har, was the driver of bus No. HPM-45. It was owned by the Himachal Road Transport Corporation. On 17-11-1976 while going from Hamirpur to Nadaun, it hit the scooter HPK-1068 coming from Nadaun towards Hamirpur, driven by Abhilash Chander Mahajan, Junior Engineer, with his wife Smt. Vinod Mahajan on the pillion seat. The husband died while respondent No. 1 sustained as many as 17 injuries on various parts of her body. Smt. Vinod Mahajan remained under medical treatment in hospitals including Post Graduate Institute of Medical Sciences and Research, Chandigarh, for a period of more than two months. Smt. Vinod Mahajan, aged 30, was working as a teacher in a school and had three minor daughters to look after. The case of the claimants is that the accident was due to the rash and negligent driving of respondent No. S. Therefore, they were entitled for compensation. The allegation was refuted by respondents and it was contended that Sh. Abhilash Chander Mahajan, the husband of the claimant Smt. Vinod Mahajan was driving the scooter carelessly and had only a learner’s licence, so he did not know driving very well. Therefore, the claim was liable to be rejected.

3. The Motor Accident claims Tribunal after considering the claims of the respective parties gave its award on 8-9-1981 and allowed total amount of Rs. 98,000/- to the claimants with interest at the rate of 6% per annum from 30-5-1977 till the realization of the entire amount against the appellant and respondent No. 5 with proportionate costs.

4. Sh. J.R. Thakur appearing for the appellant-corporation urges that in the whole case, there is only one eye witness, namely, Smt. Vinod Mahajan who being the claimant cannot be relied upon for the purpose of the claim based on negligence in this case. It is also contended that there is no evidence on the record to show that the deceased was driving the scooter with care and caution on correct side of the road and if there is any such evidence, the same is in the version of Smt. Vinod Mahajan and she being an interested witness, her version has to be examined with care and caution. It is contended further by Sh. J.R. Thakur that the claimants have failed to prove negligence or rashness on the part of respondent No. 5. Therefore, the failure to prove the same disentitles the claimants from claiming the compensation. Sh. J.R. Thakur has also a grievance against the award of Rs. 5,000/- as medical expenses in the absence of any receipt showing that such amount was actually spent by Smt. Vinod Mahajan on medical treatment.

5. On the other hand, Smt. Vinod Mahajan has filed cross-objections against the award and she appears through Sh. S.S. Kanwar as her counsel.

6. Sh. S.S. Kanwar submits that the Tribunal did not correctly appreciate the evidence on record and, more particularly, relating to the award of compensation to Smt. Vinod Mahajan who, he contends, suffered seventeen fractures of different bones. Her hip was also fractured and one of the injuries is the fracture of the lower jaw leaving a permanent scar, deformity and disfiguration of this claimant of only thirty years of age. She remained in the hospital for more than two months in aweful pain and now leaving her to live throughout her remaining life in a sorry state- socially and physically. The compensation awarded by the Tribunal to her, he claims, is nothing and deserves to be enhanced to the tune of Rs. 50,000/- as claimed by her. The contentions of Sh. J.R. Thakur appearing for the Corporation were seriously contested and assailed by reference to the evidence on record and it was urged that the findings of the Tribunal on the negligence of respondent No. S and the liability of the respondents have been supported. Further prayer is for the enhancement of the award relating to the amount incurred on medical treatment from Rs. 5,000/- to Rs. 10,000/-I proceed to examine and decide these rival contentions of the parties.

7. It is in evidence that the accident took place on 17-11-1976 at about 9.30 A.M. when the deceased was going from Nadaun to Jalari on his scooter No HPK-1068 to leave his wife Smt. Vinod Mahajan occupying the pillion that at the school and then to join his duties at the same place (Jalari). The deceased was 32 years of age and was posted as Junior Engineer, HP PWD (B&R), Jalari and Nadaun. At that time, the deceased was ascending while the driver of the bus was descending. It is in evidence that the scooter was on its right side (which was left side for him at that time) and the bus No. HPM-45 was coming from the opposite direction. The bus is a heavy vehicle and occupies much of the space on the road. It is stated to be going at an excessive and rash speed. It did not blow the horn. On the other hand, scooter is a very small vehicle and occupies only a very small space on the road and it appears from the circumstances and evidence that the bug was going at an excessive speed and was being driven in a rash and negligent manner. It struck the scooterist who, it is clear, found no space to his side to escape the fast coming but which did not alarm the scooterist by sounding its horn. The result was, Abhilash Chander Mahajan died due to multiple injuries and fractures of various bones and claimant-respondent No. 1, Smt. Vinod Mahajan, sustained a number of serious injuries and escaped death. Her hip bone and lower jaw bone were also fractured. She was removed to Civil Hospital, Hamirpur. She remained there for about three days and then was shifted to Post Graduate Institute of Medical Sciences and Research, Chandigarh, from where she was discharged on 31-1-1977. However, she was able to resume her duties in the end of March 1977. She asserts that she had remained under treatment even after March 1977 till which time she had incurred Rs. 5,000/- as medical expenses. In total, she claims, compensation to the tune of Rs. 2,00,000 (Rs. 50,000/- for each claimant). I do not see any substance in the submission of Sh. J.R. Thakur that negligence on the part of respondent No. 5 is not proved and that evidence of Smt. Vinod Mahajan, the alone eyewitness to the occurrence cannot be believed. She has given a very true, satisfactory and convincing account of the incident. She is supported by Sh. Satish Singh (AW-4) and Smt. Brijesh Awasthi (AW-5). The facts and circumstances brought on the record of this case are quite sufficient to prove the negligence of respondent No. S and 1 uphold and confirm the findings of the Tribunal not only on this aspect of the matter but on Issues No. 4 and S as well.

8. In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed.

9. I take up the Cross Objections filed by the claimant for decision now.

10. The injuries received by claimant respondent No. 1 in this accident and the submissions of the learned Counsel for her have already been taken note of. Now the question is whether the amount of compensation awarded to her is legally permissible or it requires enhancement as contended by her counsel and, if so, under what head and to what extent. Her first claim relates to medical expenses. She claims an amount of Rs. 10,000/- on this account. As no documentary evidence has been produced to demonstrate the total amount of expenses incurred by her, I feel the amount awarded by the Tribunal on this count is quite reasonable and justified and the same cannot be said to be meagre or unjustified in the absence of clear documentary evidence by the claimant.

11. Adverting to the injuries sustained by her on her hip bone and, more particularly, lower jaw which has resulted into deformity and disfiguration of face at this age and to suffer under the same strain and inferiority complex throughout the remaining years of her life and obvious effect to her physical state and strength due to the injury to her hip bone. Her long-sufferings due to these injuries for a period of about three months are to be taken into consideration while considering her claim. I seek assistance from the judgment of this Court reported in 1986 ILR. (H.P. Series) 142, Himachal Road Transport Corporation v. Neema alias Seema and Anr. wherein Chief Justice P.D. Desai observed as under:

In such cases, there cannot be any algebric or mathematical formula for the award of compensation. Compensation in whatever sum awarded would not really mitigate the lasting effect of the damage caused. It is indeed quite impossible to make adequate compensation in terms of money for the tragic consequence of the injury lasting for the life time of the surviving victim of an accident, for, money cannot renew a physical frame that has been battered and shattered and alleviate the pain and suffering and restore the lost pleasure and enjoyment of life. This is all the more true when the victim is a young girl, the course of whose whole life is fundamentally affected as a result of the disabilities flowing from the accident. The Court must still assess the compensation, however, bearing in mind all the relevant circumstances of the case, as they are known up to the time of the trial, and, as far as they can for the future be reasonably foreseen, guided by the overall consideration that the injured person should be given a sum even if it appears to some minds to be ‘daunting in its immensity’-which would ensure a just compensation to him or her.

12. In this case, the claimant, a young girl aged about 17 years, lost all the four incisors of the upper jaw. The lower left central incisor was also broken. The medical evidence was clear on the point that there was figuration of face on account of change of appearance and that even artificial teeth or denture would not restore the normal appearance of the face. The learned Chief Justice, on appeal, did not interfere with the quantum of damage in the total sum of Rs. 40,000 awarded by the Tribunal.

13. The only difference in the present case is that the claimant is aged 30 years and is married but the nature and extent of injuries sustained by her cannot be rated to be of less importance to her future life and living.

14. Following these principles, facts and circumstances of this case’ and the evidence on the record, the amount of Rs. 3,000/- awarded by the Tribunal, in addition to Rs. 5,000/- for medical expenses, is enhanced to Rs. 18,000/- with interest at the rate of Rs. 6% per annum from 9-3-1955 till 8-9-1981 and thereafter at the rate of 8% per annum till final payment to the claimant. The cross-objections are accordingly allowed to the aforesaid extent.

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