IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH F.A.O. No. 179 of 1990 Date of decision: April 20, 2010 D.S. Jaspal and others .. Appellants Vs. State of Punjab and another .. Respondents F.A.O. No.222 of 1990 State of Punjab and another .. Appellants Vs. Kanwar Sandhu and another .. Respondents. F.A.O. No.223 of 1990 State of Punjab .. Appellant Vs. D.S. Jaspal and others .. Respondents. F.A.O. No.224 of 1990 State of Punjab .. Appellant Vs. Shiv Lal and another .. Respondents. F.A.O. No.225 of 1990 State of Punjab and another .. Appellants Vs. Harvinder Singh and another .. Respondents. F.A. O. No. 179 of 1990 and others connected matters -2- *** F.A.O. No.226 of 1990 State of Punjab and another .. Appellants Vs. Bittu Sandhu and another .. Respondents. F.A.O. No.276 of 1990 Kanwar Sandhu .. Appellant Vs. State of Punjab and others .. Respondents F.A.O. No.277 of 1990 Bittu Sandhu .. Appellant Vs. State of Punjab and others .. Respondents F.A.O. No.278 of 1990 Harvinder Singh .. Appellant Vs. State of Punjab and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. A.S. Chahal, Advocate for the appellant. Mr. C.S. Brar, DAG, Punjab for the respondent. A.N. Jindal, J This judgment of mine shall dispose of four connected appeals No.179 of 1990 and 276 to 278 of 1990 preferred by the claimants and five F.A. O. No. 179 of 1990 and others connected matters -3- *** appeals No.222 to 226 of 1990, preferred by the State, against the award dated 3.10.1989 passed by the Motor Accident Claims Tribunal, Chandigarh, awarding compensation to the claimants as under :- Name Nature of claim Amount awarded Kanwar Sandhu For the injuries Rs.1,20,000/- Bittu Sandhu For the injuries Rs.1,15,000/- Harvinder Singh For the injuries Rs.25,000/- D.S. Jaspal On account of death of his wife Rs.1,00,000/- Shiv Lal For damage to the car Rs.35,000/- There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise and the splendor of the stars, beyond the reach of monetary tape- measure. The determination of the damages for loss of human life is an extremely difficult task. Different formulas are carved and calculations are made, but no amount of compensation could restore the human life. Similarly, the man is like a bubble on flowing water on the heavy trafficking roads. A little negligence some times results into vanishing of the same as a whole, rendering their as helpless orphans and leave dependents to collect his remains and also to look forward to the owners, drivers and insurer to compensate them for such deaths gently living in castles come on the roads and cry for help. That apart, if a scratch is made on the bubble then this human frame stand disturbed having gone crippled for the rest of his life. No amount of compensation could restore the physical frame of such a person having a sufferer from an accident, that is why it has been said by the Courts that whenever any amount is determined as compensation payable for an injury suffered during accident, the object is to compensate such injury so far as the money can compensate because it is impossible to equate the money with the human sufferings and personal deprivations. Money cannot renew a broken and shattered physical frame. Similar observations were made in case R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd. and others 1995 ACJ 366. The present case relates to a tragic accident in which a staff correspondent Kanwar Sandhu, his wife Bittu Sandhu, their driver F.A. O. No. 179 of 1990 and others connected matters -4- *** Harvinder Singh had suffered injuries. However, Mrs. Harvinder Jaspal, the wife of an IAS officer namely D.S. Jaspal, had expired and their car was damaged. As an after math of the aforesaid accident, all the four sufferers filed claim petitions. The factual matrix of the case is that on 14.4.1987, the aforesaid occupants while travelling in car bearing registration No.PUV 1413 driven by Harvinder Singh were coming from Gurudwara Nadha Sahib to Chandigarh. When they reached the barrier put near the over-bridge and the road coming from Chandigarh Railway Station, on Chandigarh- Panchkula high way, the driver stopped the car for checking at the barrier. A bus was already parked ahead of the car of the claimants. The respondent-driver Tarlochan Singh (herein referred as 'the respondent No.3') while driving the bus bearing registration No.PJG1323 came from the side of Mani Majra and banged into the stationery car occupied by the claimants. Resultantly, the car of the claimants was pushed ahead and having become sandwich between the two buses was completely damaged. Consequently, all the occupants except a child of Kanwar Sandhu suffered injuries. However, Mrs. Harvinder Jaspal succumbed to the injuries later on. Besides, criminal case against respondent No.3, claimants preferred five claim petitions. In M.A.C.T. Case No.30 of 1987, Kanwar Sandhu being 32 years of age being a staff correspondent in “The Tribune” sought compensation to the tune of Rs.5 lacs on account of the injuries and disability to the extent of 20% on his body. In M.A.C.T. Case No.31 of 1987, Mrs. Bitu Sandhu sought compensation to the tune of Rs.3 lacs on account of the fracture of pelvis, fracture of shaft, right femur, abdominal and other injuries. In M.A.C.T. Case No.32 of 1987, Harvinder Singh, claiming himself to be aged about 21 years old, having suffered fracture of scaphold carpal bone,left wrist and multiple abrasions, sought compensation to the tune of Rs.60,000/-. In M.A.C.T. Case No. 36, D.S. Jaspal, being legal representative of Mrs. Harvinder Jaspal, sought compensation to the tune of F.A. O. No. 179 of 1990 and others connected matters -5- *** Rs.6 lacs on account of the death of his wife aged about 29 years performing house hold duties. In M.A.C.T. No. 61 of 1987, Shiv Lal has sought compensation to the tune of Rs.61,171, on account of the damage to his car. The claim made on behalf of the appellants was combated by the respondents on diverse grounds. While denying the allegations, it was alleged that driver of the offending bus was not rash and negligent at all. As a matter of fact, the said bus bearing registration No.PJG1323 was coming from Shimla and car was going ahead of it on the Railway bridge near Panchkula barrier. The driver of the car suddenly stopped it ahead of the bus without giving any signal near the barrier. The driver of the bus could not control the bus due to failure of brakes, as such, he could not be attributed with any negligence. As such the claimants are not entitled to any compensation. In all the five claim petitions, two issues each were framed. The two crucial questions to determine in all the petitions, as conveyed through issues No.1 and 2 are to determine the rashness and negligence of respondent No.3 and the quantum of compensation. The Tribunal on consideration of the material on record and the evidence adduced on behalf of the parties while deciding issue No.1 observed that the accident took place as a result of rash and negligent driving of the bus by the respondent No.3. Consequently, while deciding issue No.2, the claimants were awarded compensation as referred to above along with interest @ 12% per annum from the date of filing of the application till realization of the amount. In case of compensation payable to the husband and children of the deceased Harvinder Jaspal, it was ordered that D.S. Jaspal would be entitled to Rs.30,000/- and rest of the amount would be deposited in the fixed deposit in the name of the claimants No.2 and 3 i.e. children of the claimant Harvinder Jaspal, in some scheduled bank which the claimants would be entitled on attaining the age of maturity. Against the said award, Shiv Kumar has not come in appeal, whereas, the other four claimants have preferred the appeals for enhancement. However, the State has also filed separate five appeals F.A. O. No. 179 of 1990 and others connected matters -6- *** against all the impugned award for dismissal of the claim petitions. Arguments heard. Record perused. Before taking up the appeals filed by the claimants for enhancement, I lay my hands to decide the question of negligence as raised by the State. In order to establish the negligence of the respondent No.3, the claimant Kanwar Sandhu while appearing in the witness box as PW-1 has unfolded the sequence of events leading to the occurrence stating that after they reached near barrier of Railway Station on Panchkula Chandigarh metalled road, their driver stopped the car behind a bus which was already parked for traffic checking. In the meantime, the respondent No.3 while bringing his offending bus rashly and negligently struck from behind, resultantly, they suffered injuries, whereas, Harvinder Jaspal died. Mrs. Bitu Sandhu (PW3) and Harvinder Singh (PW4) have corroborated the version as given by Kanwar Sandhu in all material particulars besides explaining the injuries, treatment and the loss suffered by them due to the accident. To the contrary, Tarlochan Singh appeared as RW-1 and reiterated the version as given by him in the written statement. On critical analysis of the rival contentions and the evidence led on the file, the things are crystal clear and the circumstances and evidence speaks for itself that the accused was at fault. The accident has not been denied by the respondent No.3 but the only negligence has been denied and the specific case has been set up that due to failure of the brakes he could not control the bus. Admittedly, the bus was coming from Shimla, a hilly area, therefore, certainly, it must have started with a pre-check up of whole machinery including the brakes. The respondent No.3 has admitted that during the journey the brakes of the bus were in order. The mechanical report showing the failure of brakes has not been proved according to law. The driver must have applied the brakes on the earlier occasions even while crossing the railway track. It is not his case that the brakes were not working at that time. Thus, it does not appeal to the reasons that the brakes had failed only at the juncture where he was also to stop the bus for traffic checking on the barrier. From the consistent testimony of the injured witnesses as well as from the circumstances of the case, that an inescapable conclusion could be arrived that the respondent No.3 was driving the bus at F.A. O. No. 179 of 1990 and others connected matters -7- *** high speed, having failed to control the same, it dashed in the car causing one casualty, rendering three occupants as seriously injured. The photographs reveal that the car has been completely smashed, therefore, speed of bus could well be assessed. As such, there is no merit in the plea that the bus was being driven at the speed of 5-6 kms per hour. Had it been so, as disclosed by the respondent No.3, then such contingency would not have occurred. Thus, the findings returned by the Tribunal on issue No.1 would have to be affirmed. During the last many decades, the Courts have centered around their concentration on determination of the criteria for awarding compensation to the injured persons having suffered injuries in the accident which has touched new height not only in India but in different parts of the world. There is no denying a fact that a normal human being having suffered fracture or different types of injuries is turned into shattered frame, unsafe for survival, ready for renovation and repairs any time. In this backdrop, it would not be unsafe to say that such an injured person who has suffered permanent incapacity or abnormality cannot be restored his amenities and normal human frame, but what courts could do to compensate him for his smooth running of life in future that is why it has been said by the Courts that whenever any amount is determined as compensation payable for any injury suffered during an accident, the object is to compensate such injury so as as the money can compensate because it is impossible to equate the money with human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. In case Ward vs. James (1965) 1 All ER 563 it was observed as under :- “Although you cannot give a man so gravely injured much for his 'lost years', you can, however, compensate him for his loss during his shortened span, that is, during his expected 'years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But, how can you compensate him for being rendered helpless invalid? He may, owing to the brain injury, be rendered unconscious for the rest of his days, or, owing to F.A. O. No. 179 of 1990 and others connected matters -8- *** the back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern and they keep it in line with the changes in the value of money.” As such, the determination of compensation certainly involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused but all these elements have to be viewed with objective standards. It was also observed in case C.K. Subramonia Iyer v. T. Kunhikuttan Nair, 1970 ACJ 110 (SC) as under :- “In assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.” The Apex Court while determining the compensation arrived at the conclusion that the compensation to be granted to the claimants for the injuries or death should be just and reasonable. They also defined the words “just” and “reasonable” in the judgment delivered in case State of Haryana and another vs. Jasbir Kaur and others, JT 2003 (Supp-1) SC 60 : (2003) 7 SCC 484 as under :- “7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense “damages” which in turn appears to it to be “just and reasonable”. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind F.A. O. No. 179 of 1990 and others connected matters -9- *** that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be “just” and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be “just” compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration. Though by use of the expression “ which appears to it to be just” a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression “just” denotes equitability, fairness and reasonableness, and non arbitrary, if it is not so it cannot be just.” This judgment was followed by the Apex Court in case New India Assurance Co. Ltd. v. Satender and others, JT 2006 (10) SC 234. The principle of determination of compensation was considered on the rule of restitution in integrum which means that the compensation is measured at the cost of repair or repairing the original position applies only when if and so far as the original position can be restored. If not possible, the Tribunal must endeavour to give fair equivalent in money. Bodily injury shall be treated as deprivation which entitled the claimant to damages. The compensation awarded should not be a token compensation but should be an adequate and reasonable to achieve the statutory goal. Way back in the year 1998, the Apex Court in R.D. Hattangadi's case (supra) classified the damages to be awarded to the F.A. O. No. 179 of 1990 and others connected matters -10- *** injured as pecuniary and non-pecuniary and observed that pecuniary damages are those which the victim had actually incurred which are capable of being measured in terms of money, whereas, non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. The Apex Court further appreciated these two concepts while describing pecuniary damages as under :- “Pecuniary damages may include expenses incurred by the claimant : i) medical attendance; ii) loss of earning of profit up to the date of trial; iii) other material loss. Non-pecuniary damages So far as non pecuniary damages are concerned, they may include : i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e. on account of injury the claimant us unable to walk, run or sit; iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; and iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. The Apex Court while defining the pain and sufferings and loss of amenities of life, observed that the special circumstances of the claimant have to be taken into account including the age, unusual deprivation he has suffered and affect thereof on his future. Now keeping in view the aforesaid parameters in mind and putting the same to the facts and circumstances of the case, I assess the compensation as under :- F.A. O. No. 179 of 1990 and others connected matters -11- *** FAO No.276 of 1990 (MACT Case No.30 of 1987) Claimant Kanwar Sandhu has stated that he remained admitted in P.G.I. for two months with an advice of a second operation for hip fracture of the left hip bone. He continued attending the hospital as an out door patient for two months after his discharge from the hospital. Due to the hip fracture, he could not lift his left leg nor could he drive four wheeler. He spent about Rs.6000/- on medicines and Rs.5000/- on special diet. He needed a sum of Rs.1,25,000/- for the operation of the hip fracture in Sweden. He remained away from the job for three months and suffered loss of Rs.9000/-. According to the doctor, there was dis-location of both hips of Kanwar Sandhu and he was operated upon on 14.4.1987. He further testified that he was advised physiotherapy till 18.7.1987 and on 10.11.1987, he determined his disability as 20% because he was having difficulty in lifting his left lower limb. He is unable to squat. He could not run and feels difficulty in climbing the stairs. He further testified that there was loose piece in the left hip and this hip bone could not be removed without any major operation in Sweden. Dr. Shivinder Singh Sandhu (PW5) gave his abnormality in the hip joint as 50%. The claimant proved medicine bills Ex.P1 to Ex.P40 to the tune of Rs.6193/- for the purchase of the medicines w.e.f. 14.4.1987 to 3.10.1987. The Tribunal while calculating the amount of medicines, loss of income for three months and considered loss of Rs.5000/- on account of special diet, pain and sufferings, loss of enjoyment of life, permanent and partial disability and loss of efficiency awarded a sum of Rs.1,20,000/-. The compensation awarded to Kanwar Sandhu at the face of it appears to be quite un-reasonable. The details of the amount so awarded were not given. Nothing was awarded for the attendant which he may have employed for three months and for the future help. Nothing was awarded on account of transport which he must have used to make visits to P.G.I. Chandigarh for his indoor treatment as well as follow up treatment. No amount was awarded for damages on account of loss of expectation from life, shortening of normal longevity of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. As such, I do not disturb the amount of compensation awarded for the F.A. O. No. 179 of 1990 and others connected matters -12- *** purchase of medicines, salary and special diet which are Rs.6000/-, Rs.9000/- and Rs.5000/- respectively, however, the compensation qua the remaining heads, for which the claimant is entitled, is as under :- Head Amount For the attendant in the hosspital and at home during his treatment for five months Rs.10,000/- Expenses on transport for his visits to the P.G.I. Chandigarh for treatment Rs.10,000/- Loss of amenities of life, shortening of longevity of life, inconvenience, hardship, discomfort, disappointment and frustration Rs.50,000/- Permanent partial disability to the extent of 50% of the hip and 20% of the whole body. Rs.50,000/- Expenses on the operations which he had undergone and which he must have undergone later for the hip fracture Rs.50,000/- Expenses for the future treatment on medicines Rs.10,000/- Thus, the claimant is entitled to compensation to the tune of Rs.2,00,000/-. Notwithstanding the fact that the claimant was a budding journalist and became a staff correspondence in a short span of life and had high hops in future, certainly, on account of the accident, he became incapacitated which must have created hurdle in his career. However, though it would not be possible to restore him his normal life, yet, the compensation being enhanced now by me may help him in his smooth running of the rest of his life. Though the compensation may be on the lower side but the same is awarded keeping in view that he would also be entitled to interest from the date of application till realization. FAO No.277 of 1990 (MACT No.31 of 1987) As regards the determination of the compensation to be awarded to Mrs. Bitu Sandhu, aged about 30 years, she was besides being a house wife was casual news reader at the Radio Station, Chandigarh. According to the medical evidence, she suffered permanent partial disability to the extent of 40%. As per Dr. Shivinder Singh Gill (PW2), she had suffered fracture of neck right femur with fracture pelvis. She was put on skin traction which was later on changed to skeletal traction by an F.A. O. No. 179 of 1990 and others connected matters -13- *** operation. She was kept on traction till her discharge from the hospital on 10.6.1987. She continued follow up treatment for six weeks. Her leg was shortened by 1- ½ inches. She has stated that she could not walk without the help of stick. She was unable to squat or sit cross legs. She could not go upstairs without help and she has constant pain in her lower abdomen. The Tribunal assessed the payment of medical bills Ex.P44 to Ex.P121 to the tune of Rs.9000/-. The Tribunal while assessing the income of