IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.189 of 2005 Date of Decision : November 24, 2011 Naresh Kumar @ Narayan …Appellant. Versus: M.D., H.R.T.C. & others. …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Trilok Chauhan with Mr. Vijay Chaudhary, Advocate. For respondents 1&2 : Mr. Naresh Gupta, Advocate. SANJAY KAROL, JUDGE (Oral). The appellant herein has assailed the impugned award dated 2nd November 2004, passed by learned Motor Accidents Claims Tribunal, Mandi, in Claim Petition No. 86 of 2002, titled as Naresh Kumar @ Narayan versus Managing Director, H.R.T.C. & others. 2. The claimant (appellant herein) is aggrieved of the award passed by the learned Tribunal for the reasons that no compensation for damage caused to the claimant’s property i.e. scooter and pain & suffering stands awarded by the Tribunal. 3. The challenge to the award is limited, hence, facts necessary are being reproduced herein. 4. On 27th June, 2002, Scooter bearing No. HP-34-1723 being driven by the claimant met with an accident with bus bearing No. HP-12- 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2108 near Ner Chowk, District Mandi, in which not only he sustained injuries but his scooter also got damaged. There was also a pillion rider sitting with him at that time. Resultantly, he filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter called as “Act”). The petition was opposed by the respondent-HRTC, owner of the bus, inter alia, on the ground that there was no negligence on part of its driver, namely Shiv Kumar, respondent No.3 herein (now represented by his legal heirs) but in fact it was the petitioner who was negligent in driving the vehicle which was the cause of the accident. 5. Based on the pleadings of the parties, Tribunal framed the following issues:- i) Whether the petitioner suffered injuries as a result of rash or negligent driving of respondent no. 3? …….OPP ii) If issue No.1 is proved, to what amount the petitioner is entitled and from which of the respondent.? …… OPP iii) Relief. 6. Opportunity to lead evidence was afforded to the parties. 7. The Tribunal below has held it to be a case of contributory negligence as both the claimant and driver, respondent No.3 were found to be equally negligent. On the question of quantum of compensation, Tribunal awarded only a sum of Rs.30,000/- towards the following heads:- i) Rs. 2759/- towards purchase of medicines. ii) Rs. 20,000/- for having remained admitted in the hospital for 9 days. 3 8. However since petitioner himself was found to have contributed in equal measure to the accident, hence only a sum of Rs.15,000/- alongwith interest at the rate of 6% per annum from the date of filing of the petition was eventually awarded as compensation to him. 9. I have heard learned counsel for the parties and also perused the record. 10. In R. D. Hattangadi vs. Pest Control (India) Pvt. Ltd. and others, 1995 ACJ 366, the Apex Court has laid down the following principles for awarding compensation in motor vehicle accidents:- “Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far 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 may not be able 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; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.” 11. No doubt, Claimant has been able to prove medical bills (Ex. A-1 to A-7) amounting to only a sum of Rs.2759/-. But however, in my considered view Tribunal has not correctly appreciated the evidence of the 4 claimant who while deposing as PW-4, has clearly stated that he had lost some of the bills of his treatment and in fact had spent Rs.50,000/- towards the same. It also stands proved by him that as a result of the said accident he sustained injuries and as per the statement of Dr. Harish Behl (PW-2), Medical Officer, Mandav Hospital, Mandi, claimant was examined by him on 29th June, 2002. The claimant suffered a fracture, clavicle right side, for which he was treated in the hospital as an indoor patient where he remained admitted for 9 days. Claimant has also deposed that due to the accident, he suffered injuries on his head, shoulder and other parts of his body. Though it is also come on record, through his testimony, that prior to the accident, he used to earn about Rs.5000-6000/- per month by running a tea stall and selling vegetables. However due to head injury he is now unable to do any work. But however there is no proof thereof. 12. Petitioner, undoubtedly, is 31 years of age and has sustained injuries which are likely to aggravate his pain and suffering with the passage of time. 13. Keeping in view the entire attending circumstances, in my considered view, petitioner is entitled to a further sum of at least Rs.15,000/- towards all heads including pain and agony. 14. With regard to the loss caused to the scooter, I am of the considered view that Tribunal has rightly appreciated the material on record while arriving at its conclusion. On this count, Mr. Trilok Chauhan, could not support his contentions. To this effect, there is no error in the impugned award. Evidence has been considered in its entirety and appreciated correctly. 5 15. With regard to the findings of contributory negligence, I am afraid findings returned by the Tribunal are presumptuous and without any foundation of facts or law. Relevant portions thereof are reproduced as under: “10. Two different types of versions have been given by the petitioner and the respondents but the actual position at the spot can be ascertained from the photograph Ext.RA which was proved in the cross examination of P.W. 4 by Naresh Kumar. In Ex. RA the scooter can be found lying below the driver seat of the bus. Admittedly the scooter was coming from left side of the bus and could not have reached the side of the driver seat had the bus been coming with very fast speed. It appears that the bus was stopped at the spot of accident and had it been in motion the petitioner and his companion would have been run over by the bus. There is lot of space in front of the bus and the petitioner could have avoided the happening of the accident had he taken his scooter to the vacant side of the road. 11. On the other hand the evidence of the respondents can also not be relied because according to R.W.4, the petitioner appeared to be under intoxication and he was driving the scooter at the relevant time in a zig zag manner. Had the petitioner consumed liquor, the same should have been mentioned in the MLC but no effort was made by the respondent to prove the MLC of the petitioner though the same should have been attached by the police in the police challan because the respondent No.3 has admitted that with respect to this accident he is facing trial in a criminal court. 12. The analysis of the evidence suggests that this was a case of contributory negligence and both the petitioner and respondent No.3 could have avoided the accident had they taken proper care and caution while driving their vehicles. I therefore, hold that the petitioner suffered injuries as a result of his own rash and negligent driving and as a result of rash and 6 negligent driving of respondent No.3. The issue is decided accordingly.” (Emphasis supplied) 16. The Apex Court in Pramodkumar Rasikbhai Jhaveri vs. Karmasey Kunvargi Tak & Ors., 2002 ACJ 1720 has held that we do not think that these two reasons given by the High Court fully justify the accepted principles of contributory negligence. The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence.' Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong." Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff's contributory negligence as in the case of defendant's negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley Vs. Austrust Ltd. (1999) 73 ALJR 403 is worthy of quoting: "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. 7 What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiff's share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling Vs. Cooper [1931] A.C. 1 at page 9, Lord Hailsham said: "Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence: the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances." (Emphasis supplied) 8 17. Significantly in support of his claim, petitioner has examined six witnesses and respondents have examined two witnesses. In my considered view, conjoint reading of the statements of all the witnesses would only show that petitioner was not negligent in driving the scooter at the time of occurrence of the accident. The principle laid down by the Apex Court is clearly not applicable to the instant facts. 18. It is true that the photograph does not show that there is extensive damage caused to the scooter but however this fact by itself would not be sufficient to presume that petitioner was also negligent in causing the accident. Exact attending circumstances which resulted into the accident on the spot, cannot be depicted in the photograph, particularly when Photographer was not a spot witness. Presumption drawn by the Tribunal is not based on any evidence led by the parties. Dr. Harish Behal (PW-2) appeared in the witness box. It was not suggested to him that petitioner was in a state of intoxication at the time of occurrence of the accident. Sh. Deep Singh (RW-2) has simply stated that “petitioner was driving the scooter in a zig zag manner” and “appeared to be under intoxication”. Tribunal itself arrived at the conclusion that there is nothing to prove that petitioner was under influence of liquor. There is no medico legal record to support this fact. 19. Hence the findings of the Tribunal on this count are reversed. It cannot be said that petitioner was negligent or in any manner had contributed towards the occurrence of the accident. 20. For the reasons explained above, impugned award dated 2nd November, 2004, passed by learned Motor Accidents Claims Tribunal, Mandi, in Claim Petition No. 86/2002, titled as Naresh Kumar @ Narayan 9 versus Managing Director, H.R.T.C. & others, stands modified. It is held that petitioner shall be entitled to whole of the amount awarded by the Tribunal. Petitioner shall also be entitled to further enhanced amount of Rs.15,000/- along with interest at the rate of 6% per annum from the date of filing of the petition. Original respondent Sh. Shiv Kumar, driver of the bus owned by HRTC was driving the bus in his official capacity and, as such, respondent No.1 being vicariously liable is liable to pay the entire compensation. 21. With these observations, present appeal is disposed of. ( Sanjay Karol ), Judge. November 24, 2011. (rana)