Lodha, J.:— This appeal under section 110-D of the Motor Vehicles Act, 1939 has been filed by claimant Mr. Devendra Raj, against the judgment and award dated 25th August, 19/2 of the Motor Accidents Claims Tribunal, Jodhpur in Civil Misc. Case No. 14-A/1969. The Tribunal has given an award of Rs. 10,000/- as general damages and compensation and in this appeal, the appellant has prayed that the compensation as prayed in the original application should be awarded by increasing the amount from 10,000/- to 1,00,000/-.
2. Mr. Kanwar Sen owner of the truck, Satyanarain driver and Vanguard Insurance Co. respondents have neither filed any appeal against this judgment nor they have filed any cross-objection in this appeal. Hence they are satisfied with the judgment of the Tribunal. In view of this, it is not necessary to mention facts in details. However, the facts in nutshell are as under:— Appellant Mr. Devendra Raj Mehta is an I.A.S officer in the State of Rajasthan. On 7-1-69, the date on which the accident took place, he was Collector, Jaisalmer. He was going to village Sankara on official work in Rajasthan Government Vehicle No. R.J.Q 8228 along with some other officers. At about 8.30 p.m near Pokran octroi post, of Jaisalmer District, truck no. R.J.Q 1168 came at high speed and with full lights on. It was being driven rashly and negligently by respondent no. 2 Satyanarain on the right hand side i.e, on the incorrect side of the road. The said truck then violently collided with the vehicle of the appellant-claimant resulting in serious injuries.
3. The appellant had profuse bleeding due to the injuries caused by this accident and became unconscious. He was then taken and treated in the government hospital of Jodhpur, after the check up at government hospital, Pokran, revealed that the condition of the appellant became precarious. An operation was performed and then the appellant remained an indoor patient for 4 months first at Jodhpur and then in the government hospital at Jaipur. The injuries suffered by the appellant as testified by Dr. Sethi were as under:—
(A) Abrasion 1 cm. × ¾ cm. placed on posterior aspect of left hand on 3rd metcarpal bone.
(B) Abrasion 1½ cm. × ½ cm. placed on lateral aspect of left hand on 1st metacarpal bone.
(C) Abrasion ¼ cm. in diameter on anterior aspect of left knee joint.
(D) Lacerated wound 5 cm. long on posterior aspect of 2nd and 3rd metacarpal bone of the right hand.
(E) Compound comminuted fracture of lower ⅓rd of right femur.
4. As per Dr. Bafna, the operation was performed, along with Dr. Purohit and other doctors.
5. The Tribunal after recording the evidence came to the conclusion that accident occurred on account of rash and negligent driving by the respondent Satyanarain who was the driver of truck. The following issues were framed by the Tribunal:—
1. Whether the non-applicant No. 2 was driving truck No. RJQ 1168 on the Pokran-Jaisalmer road behind the octroi post at Pokran in a rash and negligent manner on 7-1-1969, at about 8.30 p.m, as a result of which it collided against Rajasthan Government vehicle No. RJQ 8228 in which the applicant was going to village Sankara in Jaisalmer district on official work.
2. Whether as a result of the said rash and negligent act of non-applicant No. 2, the applicant received multiple injuries as described in para No. 6 of his claim petition, which caused permanent disablement to him and set back in his general health?
3. Whether the applicant is entitled to get compensation to the tune of Rs. 1,00,000/- as mentioned in para No. 11 of his claim petition?
4. Whether the non-applicant No. 1 is the owner of the vehicle RJQ 1168 and whether the vehicle was insured with non-applicant No. 3?
5. Whether at the time of alleged accident, non-applicant No. 2 was driving the truck RJQ 1168 in a rash and negligent manner in the course of employment of non-applicant No. 1, and therefore the non-applicant No. 1, being the owner of the vehicle, also is vicariously liable for compensation?
6. Whether at the time of collision the driver of the vehicle No. RJQ 8228 was in a drunken state and was rash and negligent and lost control over the vehicle and collided with the truck RJQ 1168 on account of his own fault?
7. Whether the non-applicants No. 1 and 2 have violated the conditions of the certificate of insurance and hence the non-applicant No. 3 is not liable to pay compensation?
8. Whether the liability of the non-applicant No. 3, if any, is limited upto Rs. 20,000/- (Rupees twenty thousand only)?
9. Whether the petition is not properly signed and attested and is liable to be dismissed on this score?
10. Whether the accident was caused by the contributory negligence of the driver of vehicle No. RJQ 8228?
11. Relief.
6. The Tribunal then found that so far as actual expenses of the medical treatment are concerned, they were borne by the government and, therefore, the appellant was not entitled to any damages on that count. Thereafter, the question of general damages was dealt with. Strangely enough, the Tribunal in order to assess and ascertain the general damages considered the question about the financial resources, income and status of the driver and the owner. It appears to us that the paying capacity of the truck driver and the truck owner were mainly kept in view by the Tribunal. The Tribunal observed that plaintiff failed to produce any evidence as to the paying capacity of non-applicant No. 1, the truck owner. Then it held that the owner was an ordinary business man. After making this observation, suddenly the Tribunal came to the conclusion that the claimant was an officer and then, on a generalisation, by mentioning that on peculiar facts and circumstances of this case, compensation was assessed as Rs. 10,000/-.
7. It will thus be seen that the approach of the learned member of the Tribunal for the purpose of considering the relevant considerations for deciding the quantum of compensation was wholly misconceived. A reading of this judgment would give an impression as if the court was required to consider the question of alimony in a matrimonial matter, where the income of the non-applicant plays an important role for the consideration of the quantum of the amount to be awarded as alimony.
8. We are, therefore, of the opinion that so far as the finding regarding the quantum of compensation, as general damages is considered, it is based on irrelevant considerations regarding the income of the driver or the owner and, therefore, it is vitiated. It will have to be assessed of fresh.
9. Mr. Purohit, appearing for the appellant has invited our attention to the medical evidence of Dr. Sethi. According to it, there has been permanent disfiguration and disablement of the appellant, so far as one of his legs is concerned. Dr. Sethi in his statement has pointed out the serious infirmities caused due to the injuries of this accident. We extract the relevant portion of Dr. Sethi's evidence in this respect below:
“He has got about one inch of shortening in the right thigh and his knee has not recovered it's normal range of movement. Loss of movement of the knee will not result in any disease but will interfere in the number of activities, for instance he cannot squat on the ground or sit cross legged on the floor.”
10. The suffering of a man in the compound fracture of a femur who is treated in a thomas' splint immobilized to the bed for three months would be of terrible and of serious magnitude. The fracture was badly comminuted and it was also a compound fracture.
“Both the shortening of the limb and the stiffness of the knee are going to be permanent.”
11. The pain in the back may be caused due to shortening of the leg. This evidence has not been rebutted before the Tribunal nor correctness of it has been challenged by the learned counsel for the respondents before us, in this appeal.
12. The appellant at the time of the accident was an I.A.S officer holding the post of Collector. He was about 32 years of age. Being a member of I.A.S, he was likely to be assigned various important assignments and normally an able active member can reach the highest post in the bureaucracy. The assignments can be of various nature and in some of them the physical fitness of an officer can assume great importance and sometimes slight deficiency in it can create handicap also. It is difficult to visualise the various probabilities of the actual loss in the future career of a member of the I.A.S However shortening of the leg certainly mars the over all personality and it does create some handicap which would create impediments. It has come in the evidence of Shri Mehta that on account of this disability he cannot now play Tennis, which he used to play regularly. Undoubtedly, this physical disability would create some impediment in his capacity to enjoy the various amenities of life. We have also to take note of terrible pain and anguish during the period of 4 to 6 months, when he was indoor patient and also later on when he used to get out-door treatment. He became unconscious immediately after the ccident and at Pokran, his condition was arecarious. These all are to be considered for assessing general damages or compensation.
13. We can very well visualise and appreciate the pligh of handicapped persons in our societt and the result of a limping in walk on account of shortening of the leg. Even if we do not take note of the remote possibility of the pain in the back at some later stage as pointed out by Dr. Sethi, the immediate suffering and the permanent deformity and disability caused to the appellant is of a serious nature. The fact that at this young age of 32, he has been disabled and handicapped by this accident further adds insult to injury and misery as it impairs the bright future career of a young officer.
14. Mr. Purohit invited our attention to the judgment in Union Of India… v. P.S Mahal…. . 1976 A.C.J 146., wherein the High Court of Jammu & Kashmir, in an appeal while considering claim of general damages, in a case of almost similar disability of one inch shortening of the left lower limb, enhanced the amount from Rs. 30,000/- to Rs. 40,000/-. The relevant observations are as under:
“27. Head No. (vi). The petitioner has claimed Rs. 1,22,100.00 as general damages for head No. (vi). The Tribunal has allowed only Rs. 30,000/- under this head. In my opinion the partial claim allowed is not commensurate with the disability suffered by the petitioner-appellant, with the anguish and pain he has suffered, and also disfigurement, loss of past and future enjoyment of life. The petitioner appellant has substantially been deprived of his power and capacity to enjoy the amenities of life. He has one inch shortening of the left lower limb, foot drop on the left side, wasting of muscles of both sides, limitations of movements of both hip and knee joints. From the date of discharge from the hospital upto 8-4-72 the petitioner appellant had to go to Chandigarh for check up. The petitioner cannot do any field work. He has to remain attached to the office, he cannot go round and survey the field work, construct a dam or a bridge or a reservoir and thus perform feats of engineering and thus show his ability in the discharge of his functions as an Engineer. According to Dr. Bansal the physical disability is likely to worsen in future due to the future osteo-arthritic changes in the hip and knee joints.
28. In my opinion the compensation must be assessed in fair manner and must be commensurate with all what the petitioner appellant has suffered and will suffer in future on account of his physical disability. In our opinion the claim to be awarded under this head should not be less than Rs. 40,000.00 (forty thousand only).”
15. In this case, the age of the injured was 49 years and he was holding the post of Executive Engineer. We are of the opinion that the above is the nearest case, which can provide some assistance and guidance in the decision of instant case.
16. In the instant case as mentioned above to enumerate the circumstances and facts to be considered are as under:
(1) He is a member of I.A.S;
(2) He was 32 years of age. He was working as Collector, Jaisalmer;
(3) The accident has resulted in permanent disability of right leg in as much as the length has been shortened by 1”.
(4) It has resulted in limping;
(5) He became unconscious and remained under severe physical and mental agony for 6 months;
(6) The result of this disability and deformity would be permanent, handicap in the otherwise bright career of claimant.
17. We have also discussed above the various implications of the above injuries and the permanent disability and also the serious suffering which the appellant had to undergo immediately after the accident and during the period of operation, treatment and his remaining indoor patient. These are the relevant considerations, which should be taken note of for the purpose of deciding the quantum of compensation of general damages but the Tribunal completely lost sight of them.
18. In view of what we have mentioned above, we are of the opinion that the general damages which are the only damages to be awarded in this case should be Rs. 40,000/-, which also would be in conformity with the standard of damages allowed in the above case of Jammu and Kashmir High Court, which was also almost identical one. Mr. Purohit, appearing for the appellant has also made a grievance that Tribunal failed to allow interest and cost in this case. This grievance appears to be well founded. Under section 110CC, the Tribunal was competent to consider and allow interest from the date of the filing of the claim. We do not find any reason for depriving the claimant from the above nor any such reason has been pointed out by the learned counsel appearing for the respondents.
19. The result is that this appeal succeeds. The claim of the appellant is allowed against all respondents. The amount of general damages cum compensation awarded by the Tribunal is increased from Rs. 10,000/- to Rs. 40,000/-. The liability of the insurance company would be statutory only as per the maximum provided in section 96(2) of the Motor Vehicles Act as it was in force, on the date of accident. The appellant would get interest @ 4% from the date of filing of the claim till the date of receipt of the amount from the respondents. The appellant would also get the cost both of the claim before the Tribunal and this appeal, from the respondents.