Prafulla Kumar Bose v. Suresh Kumar Vinod Kumar Lal Poddar And Others

S. Ali Ahmad, J.:— Being dissatisfied with the amount of compensation the unfortunate applicant has preferred this appeal under section 110-D of the Motor Vehicles Act.

2. The appellant filed an application under section 110-A of the Motor Vehicles Act, before the Tribunal on 25th of January, 1964. According to the statements made in the application, the appellant was the Managing Director of Rare Mineral & Mica Mining Co. (P.) Ltd. and was travelling on 26th of January, 1963 in an Ambassador car bearing No. WBB 8126. He was proceeding to Tilaiya on the Grand Trunk Road when a petrol tanker numbered WGH 4650 came from the opposite direction and dashed against the car. As a result of this accident the appellant sustained multiple injuries and became unconscious. He was removed to the Barhi Government Hospital. Since the injuries were serious, the appellant was advised to be taken to an institution where specialised treatment could be given. He was, therefore, ultimately taken to Orthopaedic and Fracture Clinic, Calcutta-20. He remained in the Clinic from 29th of January, 1963 till 11th April, 1963. It is said that he spent Rs. 10,000 (Rupees ten thousand) towards his treatment. On these facts a sum of Rs. 4,02,000 was claimed as compensation, the break up of which is as follows:

(a) Medical expenses Rs. 10,000/- (b) Loss of Income Rs. 92,000/- (c) Incapacity for normal work and shortening of normal expectation of life Rs. 3,00,000/- Total— Rs. 4,02,000/-

3. The truck according to the appellant was insured with Oriental Fire and General Insurance Company Ltd., but in spite of service of notices, it did not file any written statement. A written statement was, however, filed on behalf of Suresh Kumar Vinod Kumar, owner of the truck. The defence inter alia was that the claim was hopelessly barred by limitation, and that there was no rashness, negligence or fault on the part of the driver of vehicle No. WGH 4650. The fact that the accident took place on 26th of January, 1963 was admitted, but according to the respondent-opposite party, the petrol tanker was running on a moderate speed, when all of a sudden the car (WBB 8126) came in front of the petrol tanker. In spite of the efforts made by the driver of the tanker, the accident took place as the Ambassador car was in very high speed and dashed against the petrol tanker. The Tribunal after condoning delay in filing the application and on a consideration of the evidence adduced before it, came to the conclusion that on account of the accident the appellant received serious injuries, as a result of which his movements became restricted and he could move about only with the help of crutches. It also held that the accident was the result of rash and negligent conduct of the driver of the petrol tanker. With regard to the quantum of compensation, the Tribunal held that the appellant had spent Rs. 8,050 towards his treatment, and was entitled to this amount towards medical expenses. It also held that the appellant on the circumstance of the case was entitled to a sum of Rs. 20,000 as compensation. Thus a total sum of Rs. 28,050 awarded.

4. Mr. Sen in support of the appeal first contended that the appellant had to undergo treatment for over a year and during this period he was not able to do any work. He, therefore, sustained a loss of Rs. 92,000, being loss of income. According to Mr. Sen, therefore, the appellant was entitled to Rs. 92,000 under the head ‘loss of income’. In that connection Mr. Sen invited our attention to some documents, which I shall presently refer. The first document is Ext. 9, a letter dated 4th January, 1963, written by one Mr. D.R Moondhra for B.R Hermin & Mohatta (India) Pvt. Ltd. This letter, in substance, is an offer to the appellant which was accepted by a letter dated 10th of January, 1963, by the appellant. The letter of acceptance is Ext 9.A. The nature of work, the quantity of work and the remuneration to be paid to the appellant are contained in Ext. 9. Ext. 9.B is another letter dated 15th of February 1963, from the appellant addressed to Messrs B.R Hermin & Mohatta (I.) Pvt. Ltd. It was by this letter that the appellant informed Messrs B.R Hermin & Mohatta (India) Private Ltd. that he was seriously injured and was under the treatment of Dr. Chandra in his Nursing Home and that under the circumstances it was not possible for him to undertake the supervision of the cutting of the steel materials. On the basis of these Exts. Mr. Sen urges that the appellant had to give up the job offered to him under Ext. 9 and accepted by him under Ext. 9.A on account of the injuries sustained by him, causing a loss of Rs. 92,000. Therefore, according to Mr. Sen the appellant was entitled to this amount also.

5. It may be of some significance to mention here that the basis of the claim of Rs. 92,000 towards compensation was neither stated in the application nor in the evidence given by the appellant. A perusal of the judgment of the Tribunal also does not show that Rs. 92,000 was claimed on the basis of Ext. 9.B. Before the Tribunal this amount was claimed on the ground that the appellant could not work during the period he was in hospital and as such he sustained a loss of Rs. 92,000. The Tribunal for good reasons held that the appellant did not suffer any monetary loss during the period he was in the hospital and as such negatived this item of claim. Realising his difficulty Mr. Sen gave up the plea that was advanced before the Tribunal and pressed the claim on the basis of Ext. 9 series, which I have mentioned above, was not the basis before the Tribunal. The admitted position is that the appellant was discharged from the clinic on 11th of April, 1963. According to the appellant himself, during the period he was in the clinic, the working of the mines continued and notices of closer—vide Ext. 11 series, were served after he came out of the clinic. It was also significant to mention here that the closure was temporary and was on account of onset of rains. Taking all these facts into consideration it is surprising, as to why the appellant in such haste terminated the contract by Ext. 9.B on 15-2-1963. The more natural behaviour would have been to request for some more time. The work entrusted to the appellant under the contract was one of supervision and according to his own evidence, he continued to supervise the mining work after discharge from the Clinic. I, therefore, do not feel impressed by Ext. 9 series. The result, therefore, is that the claim of the appellant of Rs. 92,000 cannot be allowed.

6. Mr. Sen next urged that compensation of Rs. 20,000 on account of permanent incapacity is very low. He submitted that on the facts of this case the appellant should have been awarded Rs. 3,00,000 (Rupees three lacs), as compensation under this head. A.Ws 4, 5, 8 and 9 have all deposed that the appellant was unable to move about freely without the aid and support of crutches. A.W 8, Dr. R. Rama has described the injuries sustained by the appellant as follows:

“(1) General appearance—average built, weight 148 lbs., walks with the support of a crutch below his left arm pit and a stick in his right hand with unbalanced gait. He cannot walk without the aforesaid support. He can be only made to stand and that also for a short time with some kind of support and while standing he leans towards the left and keeps on trembling and remains unsteady.

(2) Right hand—(a) Flexion incomplete.

(b) Grip much weaker than the left.

(c) Palm has become flat due to atrophy of the palm muscles.

(3) Left lower extremity—Half inch longer than the right.

(4) Left knee joint and leg—(a) Flexion and extension at the knee joint is incomplete and painful (b) Reflexes ex-aggerated.

(5) Left hip joint—Rotation, flexion and extension partial, painful and incomplete.

(6) Right side of the chest—discrete dry crepitation audible indicating positive sign of dry pleurisy and thickened pleura on the spot of the fractured ribs since united.

(7) Memory—Occasional loss of memory and partial infirmity continues.

(8) Physique—Crippled and infirm.

On the above data I have drawn my conclusion (1) He has become permanently disabled from doing any kind of work as a mining expert or as an administrator. (2) He has become unfit for any serious intellectual persuit. (3) In his present assignment as a mining expert he has sustained a permanent disablement. (4) His normal expectation of life is shortened. (5) He is subject to physical pain which is likely to aggravate with physical strains and also with advancement of age. (6) The deformity and the resulting disfigurement are of permanent nature.”

7. The appellant was in his early 30's when he met with the unfortunate accident as a result of which, he received serious injuries. We may have all sympathies for him, but the question is whether he can be given compensation of Rs. 3,00,000 on that count. No amount of compensation can possibly renew the physical frame that has been battered and shattered. It is true that Courts have wide discretion in the matter of awarding the compensation, but still certain factors have to be kept in view. Lord Moris in 1964 A.C 326 : (1963) 2 All E.R 625 (HL), observed as follows:

“Money cannot renew a physical frame that has been battered and shattered. All that Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable award. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”

8. To the same effect the Full Court of Appeal in Ward v. James . 1965 1 All E.R 563. observed as follows:

“First assessability. In cases of grave injury, where the body is wrecked or the brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity. There should be some measure of uniformity in awards so that similar decisions are given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability. Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to Court, a thing very much to the public good.”

9. Courts in India also followed the two English decisions, I have just referred to—vide Vinod Kumar Shrivastava v. Ved Mitra Vohra . 1970 A.C.J 189.. In my opinion, therefore, while assessing compensation under this head the following rules have to be kept in mind. These are—

(1) The amount of compensation; the award must be reasonable and must be assessed with moderation.

(2) Regard must be had to awards made in the comparable cases.

(3) Sums awarded should, to a considerable extent, be conventional.

10. In the instant case, no doubt, the injuries are grave and serious, but award of Rs. 20,000 on that account cannot be said to be low, particularly when the appellant did not suffer any financial loss and in view of the principle I have just enunciated above. Learned counsel for the appellant could not show one single case in which more than Rs. 20,000 was awarded as compensation. On the other hand, learned counsel for the respondents cited several cases where the amount of compensation varied from Rs. 5,000 to Rs. 10,000. It is true as contended by learned counsel for the appellant that in those cases injuries were less serious and the purchasing power of rupee was much higher than what it is today but even then I do not think that the award of Rs. 20,000 under this head on the facts and in the circumstances, is low. I, therefore, do not see any justification in enhancing the amount of compensatian already awarded by the Tribunal.

11. Lastly, Mr. Sen urged that the Tribunal ought to have awarded interest on the amount of compensation from 25-1-1964, the date on which the claim was filed before the Tribunal. In my opinion, this argument of Mr. Sen also has no substance. Section 110-CC of the Motor Vehicles Act was inserted by Act 56 of 1969 and came into operation with effect from 2-3-1970, many years after the claim was filed. The appellant did not press for interest before the Tribunal, besides that, in my view, section 110-CC of the Act is not retrospective in character, and an interest under this section could not be awarded in a claim case that was filed prior to its enforcement. The Tribunal, therefore, was right in not awarding any interest under this section. The result, therefore, is that I do not find any merit in this appeal, which is accordingly dismissed. But in the circumstances of the case there will be no order as to costs.

R.P Sinha, J.— I agree.

12. Appeal dismissed.