Case: R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd

The appellant met with an accident while travelling in an Ambassador car (Registration No. MEQ 4583) on 20-5-1980 at about 8.30 a.m. near Village Sirur on Karwar-Mangalore Road (National Highway No. 17) within the State of Karnataka. There was a head-on collision between the car in which the appellant was travelling and the motor lorry (Registration No. MYS 7218). Because of the said collision, the driver of the car in which the appellant was travelling was thrown out and died on the spot, whereas the appellant was trapped between the dashboard and the seat. Mr Nagarkatti who was also travelling with the appellant in the car was thrown on the road. The impact was so severe that the front left side of the door of the car was jammed and could not be opened. Seeing the accident, the villagers gathered and broke open the left side of the car with the help of crowbar and the appellant was taken out. The appellant w as removed to the Kasturba Hospital where he was treated as indoor patient from 20-5-1980 to 27-5-1980. When the relations of the appellant reached the hospital, a decision was taken to remove the appellant to Bombay and accordingly on 27-5-19 80 he was brought to Bombay and was admitted in the Sion Hospital. The appellant remained in the said hospital as indoor patient from 27-5-1980 to 2-8- 1980. Because of the accident, the appellant suffered serious injuries resulting into 100% disability and a paraplegia below the waist.  2. The car was owned by M/s Pest Control (India) Pvt. Ltd., Respondent 1 and was insured with New India Assurance Company Limited, Respondent 2. The motor lorry was owned by one Madhav Bolar - Respondent 3 and was insured by Oriental Fire and General Insurance Company Limited, Respondent 4. According to the appellant, the driver of the car in which the appellant was sitting as well as the driver of the lorry which was coming from the opposite side, both were driving in a rash and negligent manner which resulted in a head-on collision. On 11-10-1980 the appellant gave notice to the Insurance Company and other parties who were liable to pay compensation and called upon them to pay compensation of Rs4, 00, 000. Since there was no response, on 13-11-1980 the appellant filed the claim petition under Section 110 -A of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). Initially, the appellant made a claim for compensation amounting to Rs4, 00, 000 but on 16-4-1984 he claimed Rs 35, 00, 000 as the compensation from the respondents and claim petition was amended. The age of the appellant at the time of accident was 52 years.  3.The appellant was a practising advocate before the accident. He was also a Judge of the City Civil Court for sometime until he resigned in the year 1964. The appellant used to appear in the various courts including the High Court and the Supreme Court of India. Because of tile accident, the appellant became disabled and he was unable to resume his practice.  4.The claim made on behalf of the appellant was resisted by the respondents to the said petition on different grounds. The owner of the lorry resisted his liability to pay any amount of compensation on the ground that although he was the owner of the said lorry but since it was insured with Respondent 4, the insurance company was liable to pay compensation, if any, to the appellant. M/s Pest Control (India) Pvt. Ltd. who were the owners of the car resisted the claim made on behalf of the appellant asserting that the driver of the said car was driving the car very cautiously and carefully and the accident took place entirely due to the negligence on the part of the driver of the motor lorry.  In any case, according to the said respondent, the compensation claimed on behalf of the appellant was excessive, imaginary and speculative in nature, which according to the said respondent was an attempt to make a fortune out of misfortune. Respondent 2, New India Assurance Co. Ltd, , with whom the car in question was insured took a plea that their liability was limited to the requirements as per law and terms and conditions of the insurance policy issued by them in favour of Respondent 1. The Oriental Fire and General Insurance Co. Ltd., who had insured the motor lorry of Respondent 3, their stand was also the same that they were bound by the terms and conditions of the insurance policy.  5.The Accidents Claim Tribunal on consideration of the materials on record and the evidence adduced on behalf of the parties passed on Award directing Respondents 1 and 2 to pay jointly and severally to the appellant compensation of Rs 26, 25, 992 to-ether with interest at the rate of 12% per annum from the rate of the application i.e. 13-11- 1980 till payment and costs of the said application within three months. The Tribunal was also of the view that Respondent 4 the insurer of the motor lorry belonging to Respondent 3 was liable to pay the compensation to the extent of Rs 50, 000 and interest there on and proportionate costs. In the award a direction was given to Respondent 2, the insurer of the car to pay all the compensation along with interest and costs on behalf of Respondent 1.  6.Against the Award aforesaid, two appeals were filed before the High Court, one on behalf of the appellant for enhancement of the compensation awarded by the Tribunal and the other on behalf of M/s Pest Control (India) Pvt. Ltd., Respondent 1 and New India Assurance Co. Ltd., Respondent 2 questioning the validity and correctness of the award in question. The High Court by the impugned judgment modified the award of the Tribunal and reduced the compensation from Rs 26, 25, 992 to Rs 8, 57, 352. The High Court has also reduced the rate of interest from 12% per annum to the rate of 6% per annum. The award against the insurer of the lorry Respondent 4 was affirmed and direction was given to make payment with interest at the rate of 6% and the proportionate costs. It was further directed that if the respondents failed and neglected to pay the amount in full or part, such defaulted amount shall carry 12% interest per annum from the date of default t ill its realisation. On the aforesaid finding the appeal filed on behalf of the appellant was dismissed, whereas the appeal filed on behalf of Respondents 1 and 2 was allowed by the High Court in part.

Reasoning:
7.During the last few decades question of payment of compensation for accidents has assumed great importance, which is correlated with the accidents which have touched a new height not only in India but in different parts of the world. Initially, the theory of payment of compensation was primarily linked with tort compensation- only if the injury or damage was caused by someones fault. Of late the injury or damage being caused by someones fault is being read as because of someones negligence or carelessness. That is why any damage caused by negligent conduct is generally actionable irrespective of the kind of activity out of which the damage arose. Even in an action based on the tort, the applicant has to show that the defendant was negligent i.e. there was a failure on his part to take that degree of care which was reasonable in the circumstances of the case. There has never been any doubt that those using the highways are under a duty to be careful and the legal position today is quite plain that any person using the road as a motorist will be liable, if by his action he negligently causes physical injuries to anybody elseTribunal as well as the High Court has examined the evidence adduced on behalf of the parties and have recorded clear findings that at the relevant time the car and the lorry were being driven in a rash and negligent manner. Reference has be en made to the evidence adduced on that question. The fact that the front left side of the car was entangled with the front middle of the lorry speaks about the rashness on the part of the drivers of the two vehiclesfrom the materials on record that the motor car had gone to the wrong side of the road at the time of the accident. The High Court after referring to the order of the Tribunal said that after going through the evidence of the witnesses and the circumstances placed, it was of the opinion that the Tribunal was right in holding that there was composite negligence on the part of the drivers of both the vehicles and because of such negligence the appellant had sustained suchinjuries. The High Court also said that in view of composite negligence, the appellant was entitled for damages from the owners of both the vehicles and consequently the insurers of the two vehicles shall also be liablethe terms and conditions of the insurance policies. The Tribunal as well as the High Court were satisfied that because of the accident aforesaid, the appellant had become paraplegic and it was not easy to assess the exact compensation which is payable to him9.Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim ha s 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 up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental an d 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 life10.It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame15. We are informed that during the pendency of the appeal before the High Court on basis of interim directions- Rs 3 lakhs and Rs 9 lakhs, in total Rs 12 lakhs have been directed to be deposited. However, in the final decision, the High Court was of the opinion that the appellant was entitled to Rs 8, 57, 352 only as the compensation.