G. M. LODHA, J. -
(1.)AMPUTATION of leg to the pathetic extent of making common passage for urine & passing of stools, is the climax of this trafic accident which is worst than a Fatal Accident. The worst irony of fate is that it happened with a young boy of six years of age, who could not physically die because he survived, but mentally is destined to face death every moment in this in human, pathetic, tragic life.
(2.)THIS litigation has also now become 14 years old and the boy of 6 now 20, due to delay in disposal of claim cases, must have remained under legal suspense and litigation coma, adding insult to injury. The pity is that even then this is only half way of litigation so far, and future is all uncertain.
This unfortunate boy of six years of age met an accident on 31/10/1970 while crossing the Jaipur-Malpura road at the bus stand at village Renwal by truck No. RRL 4667, which has alleged to be coming with a fast speed from Jaipur side and was going towards Malpura. The boy was crushed and his left leg was injured. On account of the injuries, he sustained the injury of fracture of the left neck femur bone and also on the pelvis, which later on resulted in complete amputation of the left leg and complete disability.
Inderlal, the non-petitioner, is the proprietor and owner of the truck which was driven by non-petitioner-Ramchandra at that time and was insured with the Oriental Fire and General Insurance Company Ltd. , MI Road, Jaipur. A case against non-petitioners Nos. 1 and 2 was registered by the police and the same resulted in conviction of Ramchandra driver.
Narendra Kumar, the respondent, has claimed Rs. 450/- as expenses incurred by him for medicines and treatment upto 17-2-71. He has claimed Rs. 500/- as expenses incurred for milk and fruits etc. Rs. 3,000/- for future expenses incurred by him and Rs. 50,000/- as general damages on account of amputation of leg resulting in disablement, which is a permanent infirmity and also on account of pain and mental agony.
The case of the appellant-Inderlal and Ramchandra respondent was that the vehicle was not driven rashly and negligently by Ramchandra. It was contended by them that the mother of the respondent-Narendra Kumar failed to take due and proper precaution before crossing the road, and it was because of her negligence that the unfortunate occurrence took place. It was also contended that Narendra Kumar is not entitled to any compensation claimed by him. The Insurance Company has taken the same line as that of the appellant-Inderlal and Ramchandra-respondent and further contended that the liability of the insurance company is only limited to Rs. 20,000/ -.
(3.)ON the basis of the pleadings, the parties joined issue on the following points : 1. Whether the accident on 31-10-1970 took place by rash and negligent driving of the vehicle No. RRL 4667 by Shri Ramchandra non-applicant No. 2, which caused injuries to the petitioner Narendra Kumar ? 2. Whether the petitioner is entitled to claim Rs. 53,950/- from the opposite parties and from whom ? 3. Relief ?
The Tribunal has allowed only claim of Rs. 31,675/ -. Para 18 of the Award relevant in the case reads as under : "it may be stated that the injured has not only been invalidated by the loss of the leg but is in a very pitiable condition of having the common passage for the stools and urine. He will not be able to do any thing even to the extent of working while sitting and earning even Rs. 1/- or 2/- a day. 1 do not agree with the learned counsel for the non-petitioner that the boy will be able to earn Rs. 1/- or 2/- a day. It is of course correct that an allowance is to be given for uncertainties of life and a reduction of 25% has been generally approved by the Claims Tribunals and confirmed by the High Courts. A reduction of 25% is therefore, allowed which comes to Rs. 40, 500/- (Rs. 54,000 less 13500 ). From this a deduction of Rs. 10,125/-at the rate of l/4th from the above amount is to be made, because the injured instead of getting Rs. 5/-a day would get the whole amount in one lump sum, which he can even invest in securities and get its return. This amount includes the compensation for pain and suffering as well. The petitioner is, therefore, entitled to receive this sum from the non-petitioners, of course to the extent of Rs. 20,000/- only from non-petitioner No. 3, the Insurance Company. The issue is decided accordingly. "
Shri Dalip Singh, the learned counsel for the respondent No. l-petitioner has pointed out that the recent trend in judgments of the various High Courts has not allowed such deduction. Shri Singh referred to the decision of Delhi High Court in Satya Wati Pathak Vs. Hari Ram (1) wherein it has been held that the deduction on account of lump sum amount, insurance amount and family pension, as decreed by the Tribunal, was not justifiable because on account of the rising prices, the benefits of lump sum payment become negligible. Shri Singh further relied upon the judgment of this Court in Sundarshan Puri vs. RSRTC (2), wherein it was observed as under : "15. In Manjushri Raha and others Vs. B. L. Gupta and others (1977 ACJ 134 (SC), their Lordships of the Supreme Court took into consideration the chances of increased earnings until the deceased would have attained the age of superannuation and also the chance of his earning the pensionary benefits, at least for a period of 10 years after his retirement. Thus, the capitalised value of the dependency may be considered as Rs. 76,800/- to which a further sum of Rs. 8,200/- may be added on account of pensionary benefits which the deceased might have earned if he would have lived after superannuation, In any view of the matter, therefore, the claimants are entitled to a sum of Rs. 85,000/ - by way of compensation. This figure need not be discounted on account of lump sum payment, looking to the prospects of promotion and considerably increased future earnings referred to above and the general depreciation in the purchasing power of money. " (para 31)