LAW FOR ALL

Thursday, September 6, 2012

admission to the MBBS course in the medical colleges under Delhi University for the academic session 2011-2012.- In the result, we: i) hold that the Bulletin insofar as it reserves 30 seats in the MBBS course in LHMC for NGOI is not ultra vires the Constitution and in so far it exempts candidates to be admitted to these 30 seats from taking the DUMET is not ultra vires the MCI Regulations. ii) hold that the provisions of Regulation 5 of the MCI Regulations for selection for admission to the MBBS course solely on the basis of merit have to be followed by the beneficiary States/Union Territories/Ministries /Agencies while selecting the students who apply for the seats reserved or allocated for the concerned State/Union Territory/ Ministry/Agency. iii) hold that even if merit of the applicants may not have been determined strictly in accordance with Regulation 5 of the MCI Regulations by the beneficiary States/Union Territories/Ministries/Agencies while selecting some of the students for the seats reserved for NGOI for the academic session 2011-2012, we are not inclined to disturb their admissions in exercise of our powers under Article 142 of the Constitution. iv) direct that with effect from the academic year 2012-2013, no admission will be made to any of the seats reserved for NGOI in LHMC, MAMC and UCMS of any student who has failed in the DUMET. v) direct that for the academic year 2013-2014 onwards, the candidate applying for seats reserved for NGOI have to obtain the minimum marks in the All India National Eligibility-cum- Entrance Test for admission to the MBBS course as provided in the amended MCI Regulations and the admissions will be made on merit after calling for applicants through advertisement in the newspapers having wide circulation. vi) direct that the Central Government will make a review of the government and private medical colleges which have been established in the meanwhile in the States/Union Territories to which seats are being allocated under the quota for NGOI and if they find that additional intake capacity for the MBBS course has been created in these States/Union Territories, the Central Government will take a fresh decision on the number of seats in the MBBS course to be reserved for NGOI for these States with effect from the academic year 2013-2014. vii) direct that if there are vacant seats in the quota for NGOI in the LHMC and MAMC for the academic year 2011-2012, the petitioners will be given admission to these vacant seats on the basis of their merit in DUMET 2011-2012 during the academic year 2012-2013. 19. With the aforesaid directions, the appeals are disposed of. There shall be no order as to costs.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 6304-6305 OF 2012
(Arising out of SLP (C) Nos. 8408-8409 of 2012)

Bhawna Garg & Anr. … Appellants

Versus

University of Delhi & Ors. … Respondents

AND

CIVIL APPEAL No. 6306 OF 2012
(Arising out of SLP (C) No. 13194 of 2012)

Kopal Rohtagi …
Appellant
Versus

University of Delhi & Ors. … Respondents

J U D G M E N T

A. K. PATNAIK, J.

Leave granted.

2. These are appeals against the common judgment and order dated
23.12.2011 of the Division Bench of the High Court of Delhi in Writ
Petition (C) No.7103 of 2011 and Writ Petition (C) No.4299 of 2011
declining to grant relief to the appellants in the matter of admission
to the MBBS course in the medical colleges under Delhi University for
the academic session 2011-2012.

3. The facts very briefly are that the Delhi University issued a Bulletin
of Information for admissions to the Under-Graduate Degree Courses for
the academic session 2011-2012 (for short ‘the Bulletin’). Para 2 of
the Bulletin dealt with admissions to MBBS course. Para 2.1.1 of the
Bulletin stated that the university conducts the MBBS course in three
Medical Colleges, namely, Lady Hardinge Medical College (LHMC),
Maulana Azad Medical College (MAMC) and University College of Medical
Sciences (UCMS). Para 2.1.1 of the Bulletin further stated that only
female candidates were to be admitted in LHMC. Para 2.1.2 of the
Bulletin stated that candidates for 15% seats were to be selected
directly by the Directorate General of Health Sciences (DGHS) based on
the result of the examination conducted by the CBSE, New Delhi, as per
the directions of this Court. Para 2.1.3 of the Bulletin deals with
admissions to seats by Nominees of Government of India (NGOI) and it
states that candidates who wish to be considered for admission to this
category of seats need not appear in the Delhi University Medical and
Dental Entrance Test (DUMET) and they will correspond directly with
the authorities listed in Appendix-II to the Bulletin. Para 2.1.6 of
the Bulletin furnishes the statement of total number of seats in Under-
Graduate Courses for the session 2011-2012. The statement is
extracted hereunder:

|Name of |Seats to be filled in on |Seats to be |Seats to be |Total|
|the |the basis of DUMET |filled in by|filled in by |Seats|
|Medical | |DGHS |the Government| |
|College | | |of India | |
| | | |Nominees | |
|MBBS Course |
| |General |SC |ST |OBC |15% Quota |NGOI | |
|LHMC |55 |19 |10 |14 |22 |30 |150 |
|MAMC |113 |25 |12 |14 |30 |6 |200 |
|UCMS |66 |19 |9 |34 |22 |Nil |150 |
|Total |234 |63 |31 |62 |74 |36 |500 |

The aforesaid statement shows that 30 out of 150 seats in LHMC and 6 out of
200 seats in MAMC in the MBBS course are reserved for NGOI. The aforesaid
statement further shows that out of a total of 500 MBBS seats in the three
government colleges of the university, 36 seats are reserved for NGOI. The
Bulletin further provides that besides the 15% seats directly filled up by
the DGHS based on the examination conducted by the CBSE, New Delhi, and the
NGOI, all other candidates have to appear in the DUMET and will be admitted
to the MBBS course on the basis of their merit in the category in which
they have applied.

4. The appellants applied as female general category candidates and also
took and cleared the DUMET. However, on account of their lower rank
in the merit list of candidates who cleared the DUMET, the appellants
could not be admitted to any of the seats in the three government
medical colleges under the university. Aggrieved, the appellants
filed Writ Petition (C) No.7103 of 2011 and Writ Petition (C) No.4299
of 2011 before the High Court of Delhi praying for a direction to
quash the Bulletin insofar as it provides for filling up of 30 seats
out of the 150 seats in the MBBS course in LHMC by NGOI and praying
for a direction to the authorities to fill up these 30 MBBS seats
earmarked for the NGOI for the academic session 2011-2012 from the
general category candidates and the appellants be considered for such
admission to the 30 seats as general category candidates. Before the
High Court, the appellants contended that the reservation of as many
as 30 seats in the MBBS course in LHMC was violative of Article 14 of
the Constitution and that the procedure adopted by the Government of
India in nominating the candidates for the 30 seats without holding a
common entrance test for determination of their merit was contrary to
the Medical Council of India Regulations on Graduate Medical
Education, 1997 (for short ‘the MCI Regulations’).

5. In the impugned judgment and order, the High Court held that in Kumari
Chitra Ghosh & Anr. v. Union of India & Ors. [1969 (2) SCC 228] a
Constitution Bench of this Court has considered the challenge to
reservation of seats for certain categories of students on the ground
that it is violative of Article 14 of the Constitution and has held
the reservation to be constitutionally valid. The High Court further
held that even though a sea-change may have taken place since the
judgment was delivered by this Court in Kumari Chitra Ghosh (supra),
it is only for this Court to hold that the ratio of Kumari Chitra
Ghosh (supra) has become irrelevant. The High Court has also held
that as the nominations have already been made by the Government of
India to the 30 seats in LHMC in the MBBS course and the nominated
students have taken admission and are undergoing the course, it may
not be appropriate to disturb their admission. The High Court also
found that the appellant had filed the writ petitions in June, 2011
and writ petitions could not be decided by 30th September, 2011 which
was the last date within which admissions were to be made to the MBBS
course for the academic session 2011-2012 as per the directions of
this Court in Mridul Dhar (Minor) & Anr. v. Union of India & Ors.
[(2005) 2 SCC 65] and hence no relief could be granted to the
appellants after the 30th September, 2011.
6. Ms. Indu Malhotra, learned senior counsel for the appellants,
submitted that the Constitution Bench judgment of this Court in Kumari
Chitra Ghosh (supra) has lost its relevance inasmuch as the entire
procedure for medical admissions has undergone a sea-change during the
past four decades after the aforesaid judgment was rendered in 1969.
She submitted that the MCI Regulations and in particular Regulation 5
thereof mandates that the selection of students to medical colleges
shall be based solely on merit of the candidate and for determination
of merit the criteria laid down in Regulation 5 of the MCI Regulations
has to be adopted uniformly throughout the country. She submitted
that Regulation 5(2) of the MCI Regulations provides that in States
having more than one University/Board/Examining Body conducting the
qualifying examination, a competitive entrance examination should be
held so as to achieve a uniform evaluation and Regulation 5(4) of the
MCI Regulations provides that a competitive entrance examination is
absolutely necessary in the cases of institutions of all-India
character. She vehemently argued that there are no exceptions
provided in Regulation 5 to holding of a competitive entrance
examination and even candidates belonging to the reserved categories
including the physically handicapped with 70% disability are required
to appear in the competitive entrance examination to secure admission
to the medical courses. She argued that the Bulletin, therefore,
could not have exempted the NGOI candidates from appearing in the
DUMET and in fact the Bulletin by so exempting the NGOI candidates
from appearing in the DUMET has clearly violated Regulation 5 of the
MCI Regulations and on this ground, Para 2.1.3 of the Bulletin
providing that candidates who wish to be considered for admission in
the category of NGOI need not appear in the DUMET is ultra vires
Regulation 5 of the MCI Regulations. She submitted that after the
Constitution Bench judgment of this Court in Kumari Chitra Ghosh
(supra), the Constitution Bench of this Court in T.M.A. Pai Foundation
& Ors. v. State of Karnataka & Ors. [(2002) 8 SCC 481] has also
emphasized the need for admissions to professional courses solely on
the basis of merit even in private unaided colleges that enjoy maximum
autonomy in choosing their candidates for admissions under their
fundamental right guaranteed by Article 19(1)(g) of the Constitution.
She submitted that in T.M.A. Pai Foundation (supra), this Court has
also held that the merit of the candidates seeking admission may be
determined either through a common entrance test conducted by the
University or the Government, followed by counselling. She submitted
that LHMC is not a private medical college but a government college
and enjoyed much lesser autonomy in matters of admission and
admissions to all the 150 seats in LHMC including the 30 seats
reserved for NGOI should have only been made on the basis of merit as
determined in a competitive entrance examination or a common entrance
test. She submitted that contrary to this law which now holds the
field, the admission to the seats reserved for the NGOI has been given
during the academic session 2011-2012 to four candidates who have even
failed in the DUMET examination. She cited a recent judgment of this
Court in Asha vs. Pt. B.D. Sharma University of Health Sciences & Ors.
(Civil Appeal No.5055 of 2012) to the effect that the criteria for
selection for admission into MBBS course has to be on merit alone.

7. Ms. Malhotra next submitted that the appellants are not claiming
admissions under the quota reserved for NGOI but they are claiming
admission to seats in general pool of candidates on the basis of their
merit in the competitive examination. In this context, she submitted
that the quota reserved for NGOI has been taken out from the seats
earmarked for the common pool of seats and if admissions to the NGOI
quota are held to be illegal then these seats have to be filled up on
the basis of their merit amongst the general category candidates. She
further submitted that the quota for NGOI is not a reservation under
Article 15 of the Constitution and yet as many as 30 out of 150 seats
in LHMC have been reserved for the NGOI and this quota is as high as
20% of the total seats. According to her, such reservation when
considered along with the reservation of seats in favour of SC/ST/OBC
candidates exceeds the ceiling of 50% for all reserved category fixed
by the Constitution Bench of this Court in Indira Sawhney v. Union of
India [(1992) Suppl.3 SCC 217] and is unconstitutional. She also
relied on the decisions of this Court in Post Graduate Institute of
Medical Education and Research v. Faculty Association [(1998) 4 SCC
1], Union of India v. Ramesh Ram & Ors. [(2010) 7 SCC 234] and Indian
Medical Association vs. Union of India [(2011) 7 SCC 179].

8. In reply, Mr. Siddharth Luthra, Additional Solicitor General appearing
for Union of India, submitted that the Government of India, Ministry
of Health and Family Welfare, has issued guidelines for selection of
candidates to be nominated for the quota of seats reserved for NGOI
and the guidelines would show that the selection is to be based on
academic merit of the candidates. These guidelines are contained in
the letter dated 09.12.1986 of the Joint Secretary, Ministry of Health
and Family Welfare, Government of India, to all the States/Union
Territories. He further submitted relying on paragraph 4 of the
affidavit of the Union of India filed on 16.07.2012 that the purpose
of allotting the seats under the Central Pool Scheme for NGOI is that
students from States and Union Territories where there are no adequate
medical colleges need support for medical education and wards of
Defence/Paramilitary Forces who have sacrificed their lives or have
been permanently disabled in war/terrorism also need similar support
for medical education. He further submitted that the Central Pool
Scheme is run on the basis of voluntary contributions from the
States/Union Territories/Ministries/ Agencies for the students
nominated by them. He submitted that these seats are only allocated
to the beneficiary States/Union Territories/Ministries/Agencies and
the allocation letters sent to the States/Union
Territories/Ministries/Agencies like the Defence Ministry, MHA, MEA
and HRD Ministries contain the guidelines indicating the eligibility
and the method of selection to be followed at the time of selection of
candidates against the Central Pool Schemes. He explained that the
beneficiary States/Union Territories/Ministries/Agencies prepare a
list of eligible candidates on the basis of either the State Level
Entrance Test or on the basis of academic merit and conduct
counselling sessions for the available seats of the Central Pool and
after the list of candidates is finalized, the States/Union
Territories/Ministries/Agencies inform the successful candidates to
report to the medical college in question for admission. He submitted
that the Central Government, therefore, has actually no role in
preparation of merit list of eligible candidates and its role is
confined to only allocating the seats to the States/Union
Territories/Ministries/Agencies.

9. Mr. Luthra submitted that the issues raised by the appellants have
been considered by the Constitution Bench of this Court in Kumari
Chitra Ghosh (supra) but decided in favour of the Central Government.
He submitted that the Medical Council of India has amended the MCI
Regulations by the Regulation on Graduate Medical Education (Amendment
2012) and these amended Regulations will be applicable from the
academic year commencing from 2013-2014. He submitted that a reading
of these amendments to Regulation 5 of the MCI Regulations would show
that in order to be eligible for admission in MBBS course for a
particular year, it shall be necessary for a candidate to obtain
minimum marks in the National Eligibility-cum-Entrance Test to MBBS
course held for that academic year and such minimum marks would be 50%
for general candidates and 40% for SC/ST/OBC.

10. We have considered the submissions of the learned counsel for the
parties and we find that in Kumari Chitra Ghosh (supra) the facts were
that in LHMC 23 seats were reserved by the Central Government for
students of the following categories:

“(a) Residents of Delhi ……..

(b) (i) Sons/Daughters of Central
Government servants posted in Delhi at the time of
admission.

ii) Candidate whose father is dead and is wholly
dependent on brother/sister who is a Central
Government servant posted in Delhi at the time of
admission.

(c) Sons/Daughters of residents of Union Territories specified
below including displaced persons registered therein and sponsored
by their respective Administration of Territory:

(i)Himachal Pradesh; (ii) Tripura; (iii) Manipur; (iv) Naga
Hills; (v) N.E.F.A; (vi) Andaman.

(d) Sons/Daughters of Central Government servants posted in Indian
Missions abroad.

(e) Cultural Scholars.

(f) Colombo Plan Scholars.

(g) Thailand Scholars.

(h) Jammu and Kashmir State Scholars.”

A candidate seeking admission in any of the reserved seats must have
obtained a minimum of 55 per cent aggregate marks in the compulsory
subjects. This reservation of 23 seats was challenged before the High
Court of Delhi as inter-alia violative of Article 14 of the Constitution
and the nomination of the candidates to the reserved seats was also
challenged as contrary to the rules. The Delhi High Court rejected the
challenge and Kumari Chitra Ghosh carried the appeal to this Court. A
Constitution Bench of this Court held that the reservation of 23 seats by
the Central Government in favour of specific categories of candidates was
constitutionally valid. Paragraph 9 of the judgment of the Constitution
Bench of this Court in Kumari Chitra Ghosh (supra) is quoted herein below:

“9. It is the Central Government which bears the financial burden
of running the medical college. It is for it to lay down the
criteria for eligibility. From the very nature of things it is not
possible to throw the admission open to students from all over the
country. The Government cannot be denied the right to decide from
what sources the admission will be made. That essentially is a
question of policy and depends inter-alia on an overall assessment
and survey of the requirements of residents of particular
territories and other categories of persons for whom it is
necessary to provide facilities for medical education. If the
sources are properly classified whether on territorial,
geographical or other reasonable basis it is not for the courts to
interfere with the manner and method of making the classification.”

Thus, this Court has held in Kumari Chitra Ghosh (supra) that it is for the
Central Government which bears the financial burden of running the medical
college to take a policy decision on the basis of over all assessment and
survey of requirements of residents of particular territories and other
categories of persons and the sources from which admissions are to be made
in the medical college and so long as the sources are properly classified
whether on territorial, geographical or other reasonable basis, the Court
will not strike down the policy decision of the Central Government on the
ground that it is violative of Article 14 of the Constitution.

11. We may now examine the policy decision of the Central Government in
reserving the seats in favour of the NGOI. In the affidavit filed on
behalf of the Union of India dated 16.07.2012, it is stated that there are
a number of States or the Union Territories which do not have
medical/dental colleges of their own and the majority of such States are in
the North-Eastern Region and in order to meet the requirements of these
States/Union Territories and for some Central Government
Ministries/Agencies and to fulfill some national and international
obligations, a Central pool of MBBS/BDS seats is being maintained by the
Ministry of Health and Family Welfare. Along with the affidavit, a list of
beneficiary States/Union Territories/Ministries/Agencies and the
distribution of seats of the Central Pool for the academic year 2011-2012
to the beneficiary Sates/Union Territories/Ministries/Agencies has also
been furnished, which is extracted hereinbelow:

|S.No. |Beneficiary States/UT/Agency |2011-12 |
| | |MBBS |BDS |
|1. |Tripura |7 |2 |
|2. |Manipur |24 |2 |
|3. |Mizoram |27 |2 |
|4. |Meghalaya |22 |2 |
|5. |Sikkim |8 |2 |
|6. |Arunachal Pradesh |26 |2 |
|7. |Nagaland |24 |2 |
|8. |Lakshadweep |13 |2 |
|9. |A & N Islands |18 |2 |
|10. |Daman & Diu |7 |2 |
|11. |Dadra & Nagar Haveli |8 |2 |
|12. |J& K |4 |- |
|13. |Ministry of Defence |25 |2 |
|14. |Cabinet Secretariat (For SSF, |5 |1 |
| |RAW, ARC Dte.) | | |
|15. |Ministry of Home Affairs (for |7 |2 |
| |BSF, CRPF, ITBP, CISF, Assam | | |
| |Rifles, SSB Etc.) | | |
|16. |Ministry of External Affairs |4 | |
| |For Indian Mission Staff posted| |1 |
| |abroad. |26 | |
| |For Self financing foreign | | |
| |students | | |
|17. |Ministry of HRD (for Tibetan |1 |- |
| |Refugees) | | |
|18. |Indian Council for Child |2 |- |
| |Welfare (for National Bravery | | |
| |Award Winners) | | |
|19. |Ministry of Home Affairs (Civil|2 |- |
| |Terrorist Victims) | | |
| |Total: |260 |28 |

”

The Central Government has, therefore, reserved 260 seats in the MBBS
course for the Central Pool and has classified the sources from which
admissions were to be made to these 260 seats on geographical and other
basis. It has not been shown by the appellants that the classification of
the sources from which admissions are to be made has no rational nexus with
the objects sought to be achieved by the policy of the Central Government.
Hence, the validity and constitutionality of the policy of the Central
Government to reserve some seats on geographical and some other rational
basis cannot be questioned. However, reservation of as many as 260 seats
may not be justifiable in the changed circumstances discussed hereinafter
in this judgment.

12. In fact, the main contention of the appellants is that the policy of
the Central Government to reserve seats in favour of the NGOI is in breach
of the principle of selection solely on the basis of merit as laid down by
the Constitution Bench of this Court in T.M.A. Pai Foundation (supra) and
as provided in Regulation 5 of the MCI Regulations. It has, however, been
held by the Constitution Bench of this Court in Kumari Chitra Ghosh (supra)
that where some seats are reserved to be filled up only from properly
classified sources, the selection on the basis of merit has to be confined
to the sources from which the seats are to be filled up. Relevant extract
from Paragraph 10 of the judgment of this Court in Kumari Chitra Ghosh
(supra) is quoted hereunder:

“As noticed before the sources from which students have to be drawn
are primarily- determined by the authorities who maintain and run
the institution, e.g, the Central Government in the present case.
In Minor P. Rajendran v. State of Madras [AIR (1968) SC 1012] it
has been stated that the object of selection for admission is to
secure the best possible material. This can surely be achieved by
making proper rules in the matter of selection but there can be no
doubt that such selection has to be confined to the sources that
are intended to supply the material.”
[Emphasis supplied]

Accordingly, the seats which are reserved for a particular source, i.e.,
the beneficiary State/Union Territory/Ministry/Agency are to be filled up
by selection on the basis of merit of candidates who have applied as
candidates of that particular source, i.e., that beneficiary State/Union
Territory/Ministry/Agency. Thus, these candidates who constitute separate
sources from which admissions are to be made to the seats allocated to the
sources are not required to take the DUMET. They must go through the
selection on the basis of merit as laid down in T.M.A. Pai Foundation
(supra) and as provided in Regulation 5 of the MCI Regulations but such
selection has to be confined to the candidates of the respective sources.

13. In Annexure – R/3 to the affidavit filed on behalf of the Union of
India filed on 16.07.2012, the particulars of the candidates who have
been nominated to the seats allocated to the beneficiary States/Union
Territories/Ministries/Agencies have been given. It has been stated in
Annexure – R/3 that for the 26 seats allocated to the State of Arunachal
Pradesh, the candidates were nominated on the basis of Joint Entrance
Examination held by the State Government; to the 24 seats allocated to
the State of Nagaland, the candidates have been nominated on the basis
of Joint Entrance Examination conducted by the State Government; to the
27 seats allocated to the State of Mizoram, the candidates have been
nominated on the basis of the State Technical Entrance Examination
conducted by the State Government; to the 22 seats allocated to the
State of Meghalaya, the candidates have been nominated on the basis of
academic merit in 10+2; to the 8 seats allocated to the State of
Sikkim, the candidates have been nominated on the basis of common
entrance examination conducted by the State Government; to the 7 seats
allocated to the State of Tripura, the candidates have been nominated on
the basis of Common Entrance Examination conducted by the State
Government; to the 24 seats allocated to the State of Manipur, the
candidates have been nominated on the basis of the Common Entrance
Examination conducted by the State Government; to the 13 seats
allocated to the Union Territory of Lakshadweep, the candidates have
been nominated on the basis of Medical Entrance Examination conducted by
the Union Territory Government; to the 18 seats allocated to the Union
Territory of Andaman and Nicobar Islands, the candidates have been
nominated on the basis of marks obtained in 10th (20% weightage) and
12th (80% weightage): to the 8 seats allocated to the Union Territory of
Dadar and Nagar Haveli, the candidates have been nominated on the basis
of percentage of marks obtained in 10+2; to the 7 seats allocated to
the Union Territory of Daman & Diu, candidates have been nominated on
the basis of the percentage of marks obtained in 10+2; to the 4 seats
allocated to the State of J & K, the candidates have been nominated on
the basis of Professional Entrance Examination conducted by the State
Government; to the 25 seats allocated to the Ministry of Defence, the
candidates have been nominated on the basis of marks obtained in the
10th (20% weightage) and 12th (80% weightage); to the 5 seats allocated
to the Cabinet Secretariat, candidates have been nominated on the basis
of marks obtained in 10th (20% weightage) and 12th (80% weightage); to
the 7 seats allocated to the Ministry of Home Affairs, candidates have
been nominated on the basis of marks obtained in 10th (20% weightage)
and 12th (80% weightage); to the 4 seats allocated to the Ministry of
External Affairs (Mission Staff), candidates have been nominated on the
basis of marks obtained in 10+2; to the 26 seats allocated to the
Ministry of External Affairs (Foreigners), candidates have been
nominated on the basis of marks obtained in 10+2; to the one seat
allocated to the Central Tibetan Administration, candidates have been
nominated on the basis of marks obtained in 10+2; to the two seats
allocated to the Indian Council for Child Welfare, candidates have been
nominated on the basis of marks obtained in 10+2 and to the two seats
allocated to the Ministry of Home Affairs, candidates have been
nominated on the basis of marks obtained in 10+2.

14. The selection of candidates for the seats reserved for NGOI thus has
been done either on the basis of marks in the Joint Entrance Examination or
marks in the 10+2 examinations. Regulation 5 of the MCI Regulations
provides for determining the merit on the basis of marks obtained in
Physics, Chemistry, Biology and English in the qualifying examination where
one University/Board/Examining Body conducts the qualifying examination or
on the basis of a competitive entrance examination where more than one
University/Board/ Examining Body conducts the qualifying examination.
Unless a candidate who had applied to any of the allocated seats and who
had not been selected for nomination comes to Court and places materials
before the Court to show that the selection has not been made in accordance
with Regulation 5 of the MCI Regulations or that his merit has been by-
passed while making the selection, the Court cannot disturb the selection.
In this case, the candidates who had applied for the seats allocated to the
beneficiary States/Union Territories/Ministries/Agencies have not
approached the Court with their grievance that their merit has been
bypassed or that the selection has not been made in accordance with
Regulation 5 of the MCI Regulations. Instead the appellants who had not
applied for the 30 seats reserved in LHMC for the NGOI have come before
this Court with their grievance that they ought to have been selected and
admitted to some of those 30 seats. The appellants, who have not applied
for the 30 seats reserved for the NGOI, could not challenge the selection
of the candidates to the 30 seats reserved for the NGOI on the ground that
merit as provided in Regulation 5 of the MCI Regulations or as laid down in
T.M.A. Pai Foundation has not been considered while making selection for
nomination of these reserved seats. In taking this view, we are supported
by the judgment of the Constitution Bench of this Court in Kumari Chitra
Ghosh (supra), wherein it has been observed:

“…….It seems to us that the appellants do not have any right to
challenge the nominations made by the Central Government. They do
not compete for the reserved seats and have no locus standi in the
matter of nomination to such seats. …”

Hence, even if some of the students may have been selected for admission to
the seats reserved for NGOI not on merit as determined strictly in
accordance with Regulation 5 of the MCI Regulations, we are not inclined to
disturb their admissions in exercise of our power under Article 142 of the
Constitution. However, if there are vacant seats in the two government
medical colleges, namely, LHMC or MAMC, for the academic year 2011-2012 out
of the quota for NGOI, then the petitioners should be given admission to
these vacant seats on the basis of their merit in the DUMET 2011-2012
during the academic year 2012-2013.

15. The appellants, however, have contended that 4 candidates, who have
been given admission in the seats reserved for NGOI in LHMC and MAMC during
the academic year 2011-2012, have even failed in the DUMET and to grant
admission to such failed candidates is making a mockery of the entire
system of medical admissions. As we have already held, the candidates who
have applied for the quota for the seats reserved for NGOI constitute
separate sources from which admissions are to be made and the selection on
the basis of merit is to be confined to each separate source from which the
admissions are to be made and they are not required to take the DUMET.
Hence, even if they have failed in DUMET, they are still entitled to be
admitted to the seats reserved for NGOI, if they are selected on the basis
of merit from amongst all the candidates who have applied from the
aforesaid separate sources for admission. Nonetheless, if the candidates
who have failed in the DUMET are admitted through a separate source of
admission, as in the present case, this may result in lot of heart burn
amongst the students who have cleared the DUMET but have not got the
admission to a seat in the MBBS course on account of their lower rank in
the merit list. Hence, in future the Delhi University must stipulate in
the Bulletin and the Government of India must issue instructions that
candidates who opt to take the DUMET but do not qualify will not be
eligible for admission to the quota reserved for NGOI. This anomaly,
however, has been addressed by the MCI by making amendments to the MCI
Regulations and by providing therein that from the academic year 2013-2014
every candidate seeking admission to the MBBS course must obtain a minimum
marks of 50% in the National Eligibility-cum-Entrance Test in the MBBS
course if he is a general category candidate and must secure a minimum
marks of 40% in the National Eligibility-cum-Entrance Test if he is a
candidate belonging to Scheduled Castes, Scheduled Tribes or Other Backward
Classes. From the academic year 2013-2014, therefore, NGOI applying for
the reserved seats will have to secure the aforesaid minimum marks in the
National Eligibility-cum-Entrance Test for MBBS course.

16. We may now deal with the contention of the appellants that the
reservations of seats for NGOI in LHMC is excessive and when taken
together with the quota of seats for SC, ST, OBC and 15% of all-India
even exceeds the 50% ceiling of reservation fixed by this Court. We
have perused the decisions in Indira Sawhney v. Union of India, Post
Graduate Institute of Medical Education and Research v. Faculty
Association and Union of India v. Ramesh Ram & Ors. (supra) cited by
Ms. Malhotra and we find that the aforesaid decisions do not relate to
reservations of seats for admission in medical colleges or other
educational institutions, but they relate to reservations of posts in
favour of SC, ST and Other Backward Classes in public services. We have
also perused the decision of this Court in Indian Medical Association
vs. Union of India (supra) cited by Ms. Malhotra and we find that the
aforesaid decision holds that in the case of non-minority private
unaided professional institutions when the candidates are to be selected
from the source of general pool, selection has to be based on inter se
rank of students, who have qualified and applied or opted to choose to
be admitted to such non-minority private unaided professional
institutions, whereas in the case of minority educational institutions
the source can be delimited to the particular minority the institution
belongs to. The aforesaid decision in the case of Indian Medical
Association vs. Union of India (supra), therefore, has no application to
the facts of this case as LHMC is not a private unaided medical college.
Instead, it is a college of the Central Government. In any case, the
total number of seats in MBBS course in the LHMC is 150 out of which 55
seats are filled up from general candidates on the basis of their inter
se merit in DUMET and 22 more seats are filled up by candidates on the
basis of their inter se rank in the merit list pursuant to an all-India
examination conducted by the CBSE. Moreover, in para 13 of the
affidavit filed on behalf of the Union of India on 16.07.2010, it is
stated that LHMC had earlier an overall intake of 150 students which has
been increased to 200 students from the academic year 2011-2012 and
despite the increase of 50 seats, the number of seats for NGOI for the
academic year 2011-2012 was fixed at 30. It is further stated in para
13 of the aforesaid affidavit that the seats reserved for NGOI in LHMC
has been reduced to 20 during the academic year 2012-2013, to 17 during
the academic year 2013-2014 and to 15 for the academic year 2014-2015,
as it will be clear from the letter dated 25.04.2012 of the Union of
India to LHMC. It is also stated in para 13 of the aforesaid affidavit
that while LHMC is a Central Government institution, UCMS and MAMC are
institutions controlled by the Government of NCT Delhi and the
Government of India cannot demand surrender of seats towards Central
Pool and further LHMC is the only college which specializes in medical
education for the girl students and the Government wants to propagate
medical education among the girls, particularly in the North-Eastern
region. Considering the aforesaid steps taken by the Government of
India to reduce the number of seats in phases from 30 to 15 for NGOI in
LHMC, we think that the grievance that there has been excessive
reservation for NGOI in LHMC, if any, has been taken care of. That
apart, for students of Delhi, UCMS and MAMC are also other institutions
where MBBS course can be pursued by the general candidates including
general female candidates and the total number of seats in these
institutions are 200 and 150 respectively out of which only 6 are
reserved for NGOI.

17. We, however, find that in para 31 of the impugned judgment, the High
Court has held that even if there was a justification as offered by the
Government of India that many States/Union Territories did not have
medical institutions of their own, particularly in North-Easter States,
there has been an overall economic development in the country and a
number of State-funded and private medical and other institutions have
been established in the meanwhile in the country and, therefore, a re-
look by the Government of India at the extent of the seats reserved for
the NGOI was necessary. We agree with this view of the High Court in
the impugned judgment and we are of the considered opinion that the
Central Government should review and find out the number of seats in
MBBS course available in the State-funded and the private medical
colleges in the States/Union Territories for which seats are being
allocated from the quota for NGOI and decide afresh as to how many seats
should be allocated to these States/Union Territories.

18. In the result, we:

i) hold that the Bulletin insofar as it reserves 30 seats in the
MBBS course in LHMC for NGOI is not ultra vires the
Constitution and in so far it exempts candidates to be admitted
to these 30 seats from taking the DUMET is not ultra vires the
MCI Regulations.

ii) hold that the provisions of Regulation 5 of the MCI Regulations
for selection for admission to the MBBS course solely on the
basis of merit have to be followed by the beneficiary
States/Union Territories/Ministries /Agencies while selecting
the students who apply for the seats reserved or allocated for
the concerned State/Union Territory/ Ministry/Agency.

iii) hold that even if merit of the applicants may not have been
determined strictly in accordance with Regulation 5 of the MCI
Regulations by the beneficiary States/Union
Territories/Ministries/Agencies while selecting some of the
students for the seats reserved for NGOI for the academic
session 2011-2012, we are not inclined to disturb their
admissions in exercise of our powers under Article 142 of the
Constitution.

iv) direct that with effect from the academic year 2012-2013, no
admission will be made to any of the seats reserved for NGOI in
LHMC, MAMC and UCMS of any student who has failed in the DUMET.

v) direct that for the academic year 2013-2014 onwards, the
candidate applying for seats reserved for NGOI have to obtain
the minimum marks in the All India National Eligibility-cum-
Entrance Test for admission to the MBBS course as provided in
the amended MCI Regulations and the admissions will be made on
merit after calling for applicants through advertisement in the
newspapers having wide circulation.

vi) direct that the Central Government will make a review of the
government and private medical colleges which have been
established in the meanwhile in the States/Union Territories to
which seats are being allocated under the quota for NGOI and if
they find that additional intake capacity for the MBBS course
has been created in these States/Union Territories, the Central
Government will take a fresh decision on the number of seats in
the MBBS course to be reserved for NGOI for these States with
effect from the academic year 2013-2014.

vii) direct that if there are vacant seats in the quota for NGOI
in the LHMC and MAMC for the academic year 2011-2012, the
petitioners will be given admission to these vacant seats on
the basis of their merit in DUMET 2011-2012 during the academic
year 2012-2013.

19. With the aforesaid directions, the appeals are disposed of. There
shall be no order as to costs.

.……………………….J.
(A. K.
Patnaik)

………………………..J.
New Delhi, (Swatanter Kumar)
September 05, 2012.
-----------------------
33

It is the duty of the driver of the public buses to take all steps, which a person of ordinary prudence would take, to ensure the safety of the passengers. The driver of the bus in question cannot be said to be unaware of the fact that the passengers were in the habit of putting their hands outside the bus. He could thus foresee that while overtaking a moving cart if he would not leave sufficient space between the cart and the bus, there was a likelihood of the passengers’ arms being injured. The respondent had elbow on the window while sitting in the bus. This cannot be said to be negligent way of sitting. On the other hand it may be called a slightly more comfortable way of sitting. The driver having noted the protruding wooden logs should have ensured a sufficient space between the bus and the cart while overtaking it. In the result, MAC APP.264/2005 filed by the Appellant Corporation is dismissed and the cross objections filed by the First Respondent are allowed in above terms. No costs.

MAC APP 264/2005 Page 1 of 30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16
th
November, 2011
Pronounced on: 3
rd
January, 2012
+ MAC.APP. 264/2005
UTTARANCHAL TRANSPORT CORPORATION
..... Appellant
Through: Mr. R.K. Kapoor Advocate with
Ms. Reetu Sharma Advocate.
versus
NAVNEET JERATH .... Respondent
Through: Mr. Rajat Aneja Advocate with
Ms. Shweta Singh Advocate,
Mr. Vaibhav Jairaj Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T
G. P. MITTAL, J.
1. This Appeal is directed against the judgment dated 17.05.2004
passed by the Motor Accident Claims Tribunal (the Tribunal)
whereby a compensation of ` 11,71,000/- was awarded in
favour of the First Respondent for having suffered amputation
of right hand above elbow and other injuries in an accident
which took place on 20.05.1995. He suffered permanent
disability in respect of his right upper limb to the extent of 85%.
2. The grounds of challenge are that the accident took place on
account of rash and negligent driving of the truck driver who
came from the opposite direction and struck against bus number MAC APP 264/2005 Page 2 of 30
UP-02B-6972 driven by the Appellant’s (Corporation) driver.
The First Respondent also contributed to the accident as he held
his arm outside the window. It is averred that the compensation
awarded is exorbitant and excessive.
3. The First Respondent filed cross objections on the ground that
the compensation awarded is too low and meager and cannot be
said to be just and proper as envisaged under Section 168 of the
Motor Vehicles Act, 1988 (the M.V. Act).
NEGLIGENCE
4. The accident took place on 20.05.1995 when First Respondent
(Navneet Jerath) was travelling in bus number UP-02B-6972
from Nainital to Delhi. First Respondent entered the witness
box as PW-10 and deposed that at about 1:30/1:45 A.M. (in the
night) the bus reached near Gajrola U.P. His son aged about 4½
years was sleeping in his lap. He was sitting on the window
side on the right side of the bus. The witness deposed that the
bus was being driven at a high speed. He noticed a huge impact
and something came scratching from the right side of the bus.
He found his right arm missing and felt tremendous pain. The
bus stopped after a distance of 400-500 meters. A few people
went to the spot in search of his missing arm but it could not be
traced.
5. PW-9 Vinay Kumar corroborated PW-10’s testimony. He
deposed that at about 1;00/1:30 A.M. he was occupying a seat MAC APP 264/2005 Page 3 of 30
in the rear side of the bus. The bus was being driven at a fast
speed when the collision took place. Even after the accident, the
bus stopped at a distance of about half a km. He deposed that
the claimant pointed out that his right arm was missing. The
bus was reversed to the place of the accident. With the help of
some torches the Claimant’s right arm was tried to be traced but
the same was not found.
6. The Tribunal by the impugned judgment held that the driver of
the offending bus was not produced. There was no reason to
disbelieve PW-8 and PW-10’s testimonies. The Tribunal
applied the principle of res ipsa loquitor and held that the
accident took place on account of rash and negligent driving by
the bus driver. It is urged by the learned counsel for the
Appellant that the accident occurred on account of rash and
negligent driving of the truck coming from the opposite
direction. The driver and the owner of the truck have not been
impleaded in the petition. In any case, the driver and owner of
the truck were equally responsible and without them being
impleaded, compensation could not have been awarded against
the Appellant.
7. The second limb of argument on negligence is that since the
First Respondent kept his arm outside the window, he was
equally at fault and the compensation awarded to be reduced on
account of First Respondent’s contributory negligence. I see no
reason to disagree with the conclusion reached by the Tribunal MAC APP 264/2005 Page 4 of 30
with regard to the negligence of the driver of bus number UP-
02B-6972 for more than one reason.
8. Firstly, there was no negligence on First Respondent’s part in
placing his elbow/arm on window sill which I would deal in
detail a little later. The driver of the bus was not produced by
the Appellant Corporation to prove the manner of the accident.
Thus, it could not be said that there was no negligence on the
part of the bus driver or that the truck driver was at fault.
Assuming that the driver of the bus number UP-02B-6972 and
the truck driver were equally responsible, this would be a case
of composite negligence. In such cases, it is for the victim to
elect as to against which of the two tortfeasors he would
proceed to claim the compensation. In this connection, I am
supported by a judgment of the Supreme Court in T.O. Anthony
v. Karvarnan & Ors., (2008) 3 SCC 748, it was held as under :-
“6. 'Composite negligence' refers to the
negligence on the part of two or more persons.
Where a person is injured as a result of negligence
on the part of two or more wrongdoers, it is said
that the person was injured on account of the
composite negligence of those wrongdoers. In such
a case, each wrongdoer is jointly and severally
liable to the injured for payment of the entire
damages and the injured person has the choice of
proceeding against all or any of them. In such a
case, the injured need not establish the extent of
responsibility of each wrongdoer separately, nor is
it necessary for the court to determine the extent of
liability of each wrongdoer separately. On the MAC APP 264/2005 Page 5 of 30
other hand where a person suffers injury, partly
due to the negligence on the part of another person
or persons, and partly as a result of his own
negligence, then the negligence of the part of the
injured which contributed to the accident is
referred to as his contributory negligence. Where
the injured is guilty of some negligence, his claim
for damages is not defeated merely by reason of
the negligence on his part but the damages
recoverable by him in respect of the injuries stands
reduced in proportion to his contributory
negligence.”
9. As far as the First Respondent’s plea of placing his arm / elbow
on window sill is concerned, it is important to note that the
Appellant Corporation’s bus was running on night service. It is
no where the Appellant’s case that First Respondent had flung
his arm outside the window. Most of the passengers do sleep
while travelling in a bus running in the dead of night. It was
Appellant’s duty to ensure that the passengers are carried to
their destination with adequate care and safety. It was expected
of the Appellant’s driver to have taken care that his bus would
not come too close to any vehicle coming from the opposite
direction in order to avoid any danger to the safety of the
passengers in which the Appellant’s driver utterly failed.
10. In Delhi Transport Undertaking v. Krishnawanti, 1972 ACJ
423, an accident took place while a passenger was travelling in
a bus resting her elbow on the window. The driver suddenly
overtook a cart carrying logs of wood which were protruding. A
passenger’s elbow struck against a log and she was injured. MAC APP 264/2005 Page 6 of 30
This Court held that there was no contributory negligence on
the part of the passenger and the accident took place because of
the negligent driving of the bus driver. Para 10 of the report is
extracted hereunder:-
“10. It is the duty of the driver of the public buses
to take all steps, which a person of ordinary
prudence would take, to ensure the safety of the
passengers. The driver of the bus in question
cannot be said to be unaware of the fact that the
passengers were in the habit of putting their hands
outside the bus. He could thus foresee that while
overtaking a moving cart if he would not leave
sufficient space between the cart and the bus, there
was a likelihood of the passengers’ arms being
injured. The respondent had elbow on the window
while sitting in the bus. This cannot be said to be
negligent way of sitting. On the other hand it may
be called a slightly more comfortable way of
sitting. The driver having noted the protruding
wooden logs should have ensured a sufficient
space between the bus and the cart while
overtaking it. In case, he found that the oncoming
traffic did not permit him of that much space, it
was his duty not to risk overtaking the cart. The
driver thus was rightly held negligent in
overtaking the cart which resulted in injuries to the
respondent.”
11. The Delhi High Court in Krishnawanti (supra) relied on a
judgment of Punjab High Court in The State of Punjab & Anr.
v. Guranwanti, 1960 PLR 571, where it was held as under:-
"It is well known that often passengers travel with
their elbows resting on the window of the car.
There is no prohibition against it. The plaintiff at MAC APP 264/2005 Page 7 of 30
that time of the morning considering the state of
traffic cannot be said to have failed to use
reasonable care for her safety by resting her below
on the window."
12. In Ramesh Kumar Awasthi v. The Collector, Saharanpur &
Ors., AIR 1982 Allahabad 425, a similar question came before
the Division Bench of Allahabad High Court. The Division
Bench relied on Krishnawanti (supra) and held as under:-
“6. On the perusal of the evidence we are satisfied
that the appellant had kept his elbow on the
window sill when the accident occurred. It was the
duty of both the drivers to ensure safety of the
passengers and for that purpose they should have
taken care to leave sufficient space between the
two vehicles at the time of crossing each other. The
story introduced by Satvir Singh (DW2) that the
accident occurred as the driver of the bus coming
from the opposite direction wanted to save a cow
is a cock and bull story. No evidence has been
produced to prove that story. The driver's evidence
would have been the best evidence to prove the
circumstances which led to the accident but he was
not produced. The drivers of the two buses were
employees of the Corporation and they were best
persons to state the truth about the accident but
they were not produced for the reasons best known
to the Corporation. The two drivers had special
knowledge of the manner in which the accident
took place and the reason for the two buses
crossing each other with such closeness as to
cause the accident. The Corporation did not
produce them. Consequently, the irresistible
conclusion is that if they had been produced their
testimony would have gone against the case set up
by the Corporation. It is well settled that if a MAC APP 264/2005 Page 8 of 30
witness having special knowledge of the facts is
withheld it is legitimate to draw an adverse
inference against that party. In our opinion, the
two drivers were best persons to explain the
circumstances which led to the accident and since
the Corporation did not produce them we have to
proceed on the assumption that the accident
occurred on account of their negligence.
Moreover, the fact that the two buses plying on a
wide road, crossed each other so closely without
there being any justification for the same itself
proves the negligence of the two drivers.
9. It is a matter of common knowledge that
passengers sitting near the window rest their hand
on the window sill specially when on a long
journey in the country-side. The driver of a bus
carrying passengers on long journeys is expected
to have knowledge of this fact. The drivers of the
two buses were bound to take precaution against
the possibility that while grazing each other some
person might be placing his hand or elbow on the
window sill. Since the two vehicles came too close
to each other resulting into accident without there
being justification for the same it has to be
presumed that the drivers had failed to take
reasonable care for the safety of passengers and
therefore they were negligent. In Jamnagar Motor
Transport Union v. Gokaldas Pitambar's L.Rs.
(1966 ACJ 42) the Supreme Court in a similar
situation where the two buses grazed while
crossing each other held that both the drivers were
negligent. The view that we are taking has been
taken by various High Courts in a number of
cases. Reference may be made to State of Punjab
v. Smt. Guranwanti (AIR 1960 Punj.490), Sushma
Mitra v. M.P.S.R.T.C. (1974 ACJ 87), Delhi
Transport Undertaking v. Krishnawanti (1972 ACJ MAC APP 264/2005 Page 9 of 30
423) and General Manager State Road Transport
Corpn. v. Krishnan (1981 ACJ 273).
10. We are then faced with the question as to
whether the appellant was guilty of contributory
negligence as his right hand elbow was protruding
out of the bus and for that reason he was not
entitled to any compensation. On the evidence on
record it is well established that the appellant was
resting his right elbow on the window sill at the
time when the accident occurred. Bool Chand,
Conductor of the bus has stated that a portion of 2
1/2" of the appellant's right elbow was protruding
outside the bus. His statement thus makes it amply
clear that the appellant had not taken his arm out
of the window, in-stead while resting his hand on
the window sill a small portion of his hand 2 1/2"
was protruding out of the bus. This is a normal for
a passenger who sits on the seat near the window
to rest his hand on the window sill. There is no law
prohibiting resting of hand on the window sill or
protruding small part of the body outside the bus.
There is further no evidence on record to show
that any signboard was placed in the bus warning
the passengers from placing their elbows or hands
on the window sill. The conductor also did not
state that on seeing the bus coming from the
opposite direction he had warned the appellant to
keep his elbow inside the bus. In Sushma Mitra v.
M. P. State Road Transport Corporation (1974
ACJ 87) it was held that the appellant was not
guilty of contributory negligence in keeping his
elbow on the window sill because it is common
practice for the passengers who sit near the
window to rest their arm on the window and there
was no evidence that the passengers were
cautioned not to do so. The Court held that the
passenger was not guilty of any contributory
negligence. We would like to emphasize that the MAC APP 264/2005 Page 10 of 30
evidence on record shows that the place where the
accident occurred was outside the town and the
traffic was not heavy and there was ample space
for the two vehicles to pass each other without
coming close. If the drivers had taken adequate
care for the safety of the passengers the accident
could not have occurred in the manner it has
happened in the present case. There is also no
evidence that the bus coming from the opposite
direction blew its horn or that the appellant was
cautioned by the conductor or the driver on seeing
the bus coming from the opposite direction to
remove his hand from the window sill. The
appellant was going on a long journey from
Meerut to Rishikesh and in that" process it was
quite natural for him to rest his hand on the
window sill. It appears that two vehicles were
being driven with excessive speed as merely by the
impact the appellant's fore-arm was slit and
severed instantaneously leaving no time for the
appellant to withdraw his hand. These
circumstances show that the appellant was not
guilty of negligence by placing his elbow on the
window sill.”
13. Simply because the First Respondent was resting the elbow on
window sill and even if his elbow was protruding by a few
inches, it was the duty of Appellant’s driver to drive the bus in
such a manner that there is safe distance between the two
vehicles. That having not been done, it has to be held that the
accident took place on account of rash and negligent driving of
driver of bus number UP-02B-6972 owned by the Appellant. MAC APP 264/2005 Page 11 of 30
QUANTUM OF COMPENSATION
14. The First Respondent was aged about 35 years on the date of
the accident and was a successful Chartered Accountant (CA)
paying income tax on the date of the accident and even much
before that. Because of the injuries suffered by him, the First
Respondent remained admitted in Sir Ganga Ram Hospital from
21.05.1995 to 27.05.1995 for traumatic amputation of right arm.
He was operated upon for debridement and closure of stump.
The First Respondent was then admitted in Vohra Nursing
Home, Rajouri Garden where he remained admitted till
02.06.1995. The Tribunal awarded the compensation under
various heads which can be extracted from Para 30 of the
judgment in a tabulated form:-
1. Reimbursement of medical expenses ` 30,000/-
2. Permanent disability/loss of future
earning
` 5,76,000/-
3. Pain, sufferings and loss of enjoyment of
amenities of life
` 2,00,000/-
4. Provision of artificial limb ` 3,15,000/-
5. Special diet/conveyance/other assistant ` 50,000/-
TOTAL COMEPNSATION ` 11,71,000/-
15. In the Claim Petition filed before the Tribunal a compensation
of ` 75 lacs was claimed. It was averred that the First
Respondent would have to visit UK or USA to get artificial MAC APP 264/2005 Page 12 of 30
limb and would have to arrange a sum of ` 6 to 7 lacs for the
same. Considering his visits for replacement of the artificial
limbs 7-8 times, the expenses under that head were assessed to
be ` 42 to 45 lacs. It was stated that the First Respondent had
already spent a sum of ` 75,000/- on his treatment, special diet
and conveyance.
16. The First Respondent averred (in the Claim Petition) that he
possessed a handsome personality, quick movement, sharpness
and was of jovial nature. He had to attend various offices i.e.
Income Tax, Sales Tax, Registrar of Companies on behalf of his
clients and loss of the right arm would always be a handicap to
him. He was a Treasurer of Lion’s Club Delhi. As a CA he had
a very bright future and his earning capacity was affected to the
extent of 85%.
17. In the written submissions filed before the Tribunal on
04.04.2004 and in this Appeal more details were filed and a
compensation of ` 89,23,000/- was claimed which is extracted
as under:-
Particulars Average
span of
Active
Professional
Practice
upto
Amount
(in ` )
(i) Cost of Artificial limb every 7/8
years (Average life of Artificial
Limb). The Petitioner could not
35 years 15,00,000/-MAC APP 264/2005 Page 13 of 30
opt for it because of paucity of
funds, since cost is ` 4 to 5 lacs
the average is taken for
computation. As per Endolite
(PW11, Ex.PW11/A &
Ex.PW11/B), it will require a
change after every 7 years.
(ii) Cost for automatic designed car `
6,25,000/- meant for disabled
persons as the Petitioner has lost
his right arm (3 cars in 20 years
would be required during this
remaining spend of life).
35 years 18,75,000/-
(iii) Salary to Attendant for minimum
20 years @ ` 4,000/- x 12 months
x 20 years on an average, though,
in future the salary of the
Attendant would also increase.
35 years 9,60,000/-
(iv) Salary to Driver ` 3,500 x 12
months x 20 years on an average,
though, in future the salary of the
Driver would also increase.
35 years 8,40,000/-
(v) Cost of medicines, special diabetic
diet etc. ` 1,500 per month x 12
months x 20 years
35 years 3,60,000/-
(vi) Physiotherapy present cost ` 1,200
x 12 months x 20 years and
conveyance, which will increase in
future.
35 years 2,88,000/-
(vii) For pain, agony and suffering and
loss amenities of life, loss of
society, social status, marital life
etc. etc., which will also increase
in future. With 85% disability all
around social status will fact not
only his future prospects but also
--- 1,00,000/-MAC APP 264/2005 Page 14 of 30
his life span and that of his wife,
who has already grown in
appearance and for prospects of
education and marriage of
children.
(viii) Disfigurement deformity at 85% --- 15,00,000/-
(ix) To loss of income from
21.05.1995:
(a) One year total disablement;
(b)Loss of earnings; and
(c) Future prospects of loss of
income with the increased
income.
35 years 15,00,000/-
TOTAL AMOUNT 89,23,000/-
18. The principle governing grant of compensation in injury and
death cases is to place the claimant in almost the same financial
position as they were in before the accident. In Concord of
India Insurance Co. Ltd. v. Smt. Nirmala Devi & Ors., 1979 (4)
SCC 365, the Supreme Court observed that the determination of
compensation must be liberal, not niggardly since the law
values life and limb in a free country in generous scales.
19. In General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Mrs. Susamma Thomas & Ors.,
1994 ACJ 1, the Supreme Court held as under:-
“5……The determination of the quantum must
answer what contemporary society "would deem to MAC APP 264/2005 Page 15 of 30
be a fair sum such as would allow the wrongdoer
to hold up his head among his neighbours and say
with their approval that he has done the fair
thing". The amount awarded must not be niggardly
since the law values life and limb in a free society
in generous scales'. All this means that the sum
awarded must be fair and reasonable by accepted
legal standards.”
20. In Oriental Insurance Co. Ltd. v. Ram Prasad Varma & Ors.,
2009 (2) SCC 712, the Supreme Court held that the expression
‘just’ must be given its logical meaning. Though, the
compensation awarded cannot be a bonanza or a source of profit
but in considering as to what would be just and equitable, all
facts and circumstances must be taken into consideration.
21. As per the disability certiciate Ex.PW-1/A, the First Respondent
suffered amputation of right arm above elbow. He suffered
85% permanent physical impairment in relation to his right
upper limb. The question of grant of compensation in respect of
permanent disability, particularly, with reference to loss on
earning capacity came up for consideration before the Supreme
Court in Raj Kumar V. Ajay Kumar & Anr., 2011 (1) SCC 343,
the Supreme Court held as under:-
“5. The provision of the Motor Vehicles Act, 1988
('the Act' for short) makes it clear that the award
must be just, which means that compensation
should, to the extent possible, fully and adequately
restore the claimant to the position prior to the
accident. The object of awarding damages is to
make good the loss suffered as a result of wrong MAC APP 264/2005 Page 16 of 30
done as far as money can do so, in a fair,
reasonable and equitable manner. The court or
tribunal shall have to assess the damages
objectively and exclude from consideration any
speculation or fancy, though some conjecture with
reference to the nature of disability and its
consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also
for the loss which he suffered as a result of such
injury. This means that he is to be compensated for
his inability to lead a full life, his inability to enjoy
those normal amenities which he would have
enjoyed but for the injuries, and his inability to
earn as much as he used to earn or could have
earned. [See C.K. Subramonia Iyer v. T.
Kunhikuttan Nair, AIR 1970 SC 376, R.D.
Hattangadi v. Pest Control (India) (P) Ltd., 1995
(1) SCC 551 and Baker v. Willoughby, 1970 AC
467.
6. The heads under which compensation is
awarded in personal injury cases are the
following:
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been injured,
comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.MAC APP 264/2005 Page 17 of 30
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of
normal longevity).
In routine personal injury cases, compensation
will be awarded only under heads (i), (ii)(a) and
(iv). It is only in serious cases of injury, where
there is specific medical evidence corroborating
the evidence of the claimant, that compensation
will be granted under any of the heads (ii)(b), (iii),
(v) and (vi) relating to loss of future earnings on
account of permanent disability, future medical
expenses, loss of amenities (and/or loss of
prospects of marriage) and loss of expectation of
life.
7. Assessment of pecuniary damages under
item (i) and under item (ii)(a) do not pose much
difficulty as they involve reimbursement of actuals
and are easily ascertainable from the evidence.
Award under the head of future medical expenses -
item (iii) - depends upon specific medical evidence
regarding need for further treatment and cost
thereof. Assessment of non-pecuniary damages -
items (iv), (v) and (vi) -involves determination of
lump sum amounts with reference to circumstances
such as age, nature of injury/deprivation/disability
suffered by the claimant and the effect thereof on
the future life of the claimant. Decision of this
Court and High Courts contain necessary
guidelines for award under these heads, if
necessary. What usually poses some difficulty is
the assessment of the loss of future earnings on MAC APP 264/2005 Page 18 of 30
account of permanent disability - item (ii)(a). We
are concerned with that assessment in this case.
Assessment of future loss of earnings due to
permanent disability
8. Disability refers to any restriction or lack of
ability to perform an activity in the manner
considered normal for a human-being. Permanent
disability refers to the residuary incapacity or loss
of use of some part of the body, found existing at
the end of the period of treatment and
recuperation, after achieving the maximum bodily
improvement or recovery which is likely to remain
for the remainder life of the injured. Temporary
disability refers to the incapacity or loss of use of
some part of the body on account of the injury,
which will cease to exist at the end of the period of
treatment and recuperation. Permanent disability
can be either partial or total. Partial permanent
disability refers to a person's inability to perform
all the duties and bodily functions that he could
perform before the accident, though he is able to
perform some of them and is still able to engage in
some gainful activity. Total permanent disability
refers to a person's inability to perform any
avocation or employment related activities as a
result of the accident. The permanent disabilities
that may arise from motor accidents injuries, are
of a much wider range when compared to the
physical disabilities which are enumerated in the
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act,
1995 ('the Disabilities Act' for short). But if any of
the disabilities enumerated in Section 2(i) of the
Disabilities Act are the result of injuries sustained
in a motor accident, they can be permanent
disabilities for the purpose of claiming
compensation.MAC APP 264/2005 Page 19 of 30
9. The percentage of permanent disability is
expressed by the Doctors with reference to the
whole body, or more often than not, with reference
to a particular limb. When a disability certificate
states that the injured has suffered permanent
disability to an extent of 45% of the left lower
limb, it is not the same as 45% permanent
disability with reference to the whole body. The
extent of disability of a limb (or part of the body)
expressed in terms of a percentage of the total
functions of that limb, obviously cannot be
assumed to be the extent of disability of the whole
body. If there is 60% permanent disability of the
right hand and 80% permanent disability of left
leg, it does not mean that the extent of permanent
disability with reference to the whole body is 140%
(that is 80% plus 60%). If different parts of the
body have suffered different percentages of
disabilities, the sum total thereof expressed in
terms of the permanent disability with reference to
the whole body, cannot obviously exceed 100%.
10. Where the claimant suffers a permanent
disability as a result of injuries, the assessment of
compensation under the head of loss of future
earnings, would depend upon the effect and impact
of such permanent disability on his earning
capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as the
percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of
economic loss, that is, percentage of loss of
earning capacity, arising from a permanent
disability will be different from the percentage of
permanent disability. Some Tribunals wrongly
assume that in all cases, a particular extent
(percentage) of permanent disability would result
in a corresponding loss of earning capacity, and
consequently, if the evidence produced show 45% MAC APP 264/2005 Page 20 of 30
as the permanent disability, will hold that there is
45% loss of future earning capacity. In most of the
cases, equating the extent (percentage) of loss of
earning capacity to the extent (percentage) of
permanent disability will result in award of either
too low or too high a compensation.
11. What requires to be assessed by the
Tribunal is the effect of the permanently disability
on the earning capacity of the injured; and after
assessing the loss of earning capacity in terms of a
percentage of the income, it has to be quantified in
terns of money, to arrive at the future loss of
earnings (by applying the standard multiplier
method used to determine loss of dependency). We
may however note that in some cases, on
appreciation of evidence and assessment, the
Tribunal may find that percentage of loss of
earning capacity as a result of the permanent
disability, is approximately the same as the
percentage of permanent disability in which case,
of course, the Tribunal will adopt the said
percentage for determination of compensation (see
for example, the decisions of this Court in Arvind
Kumar Mishra v. New India Assurance Co. Ltd.
2010 (10) SCC 254 and Yadava Kumar v. D.M.,
National Insurance Co. Ltd. 2010 (10) SCC 341.
12. Therefore, the Tribunal has to first decide
whether there is any permanent disability and if so
the extent of such permanent disability. This means
that the tribunal should consider and decide with
reference to the evidence:
(i) whether the disablement is
permanent or temporary;
(ii) if the disablement is permanent,
whether it is permanent total MAC APP 264/2005 Page 21 of 30
disablement or permanent partial
disablement,
(iii) if the disablement percentage is
expressed with reference to any
specific limb, then the effect of such
disablement of the limb on the
functioning of the entire body, that is
the permanent disability suffered by
the person.
If the Tribunal concludes that there is no
permanent disability then there is no question of
proceeding further and determining the loss of
future earning capacity. But if the Tribunal
concludes that there is permanent disability then it
will proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical
evidence, it has to determine whether such
permanent disability has affected or will affect his
earning capacity.
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves
three steps. The Tribunal has to first ascertain
what activities the claimant could carry on in spite
of the permanent disability and what he could not
do as a result of the permanent ability (this is also
relevant for awarding compensation under the
head of loss of amenities of life). The second step
is to ascertain his avocation, profession and nature
of work before the accident, as also his age. The
third step is to find out whether (i) the claimant is
totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry
on the activities and functions, which he was
earlier carrying on, or (iii) whether he was
prevented or restricted from discharging his MAC APP 264/2005 Page 22 of 30
previous activities and functions, but could carry
on some other or lesser scale of activities and
functions so that he continues to earn or can
continue to earn his livelihood.
14. For example, if the left hand of a claimant is
amputated, the permanent physical or functional
disablement may be assessed around 60%. If the
claimant was a driver or a carpenter, the actual
loss of earning capacity may virtually be hundred
percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a
clerk in government service, the loss of his left
hand may not result in loss of employment and he
may still be continued as a clerk as he could
perform his clerical functions; and in that event
the loss of earning capacity will not be 100% as in
the case of a driver or carpenter, nor 60% which is
the actual physical disability, but far less. In fact,
there may not be any need to award any
compensation under the head of 'loss of future
earnings', if the claimant continues in government
service, though he may be awarded compensation
under the head of loss of amenities as a
consequence of losing his hand. Sometimes the
injured claimant may be continued in service, but
may not found suitable for discharging the duties
attached to the post or job which he was earlier
holding, on account of his disability, and may
therefore be shifted to some other suitable but
lesser post with lesser emoluments, in which case
there should be a limited award under the head of
loss of future earning capacity, taking note of the
reduced earning capacity.”
22. The Appellant’s grievance is that the amount of compensation
awarded is exorbitant and excessive whereas the First
Respondent’s contention is that although he could never be MAC APP 264/2005 Page 23 of 30
placed in the position in which he was before he lost his right
arm but he has to be awarded compensation to be placed in the
same financial position. On behalf of the First Respondent, it is
contended that he wanted to have the latest artificial limb
manufactured by Endolite and cost of one such limb would be `
11 to 13 lacs.
23. It is urged that the compensation awarded towards loss of
earning capacity was on the lower side. The First Respondent
being a CA would use his right hand in his day to day activities;
the Tribunal fell into error in reducing 85% disability in respect
of the right upper limb to be 50% with respect to the whole
body. It is argued that no compensation has been awarded for
future medical expenditure / physiotherapy; for arrangement of
a driver; for arrangement of an attendant and for purchase of a
automatic vehicle.
24. On the other hand, it is urged on Appellant’s behalf that the
First Respondent had not purchased any artificial limb (as per
his own showing) till the arguments in the Appeal were heard
which would show that the First Respondent really did not need
the artificial prosthesis. It is averred that the Tribunal was
benevolent in granting 50% of future income towards the loss of
earning capacity when the disability of 85% was only with
respect to the right upper limb. MAC APP 264/2005 Page 24 of 30
LOSS OF FUTURE EARNING CAPACITY
25. First Respondent’s income tax returns were placed on record
since Assessment Year (AY) 1994-95 when the Respondent
returned the income of ` 32,300/-. In the next year, the First
Respondent had taxable income of ` 62,200/-; in the next AY
1996-97, although, the gross receipts had increased but the
taxable income was almost at the same level i.e. ` 62,200/-. The
Tribunal, therefore, took the First Respondent’s monthly
income to be ` 6,000/- per month, estimated the loss of earning
capacity to be 50% and applied the multiplier of 16 to compute
the loss of future earning capacity as ` 5,76,000/-.
26. Considering the First Respondent’s job who was to carry out the
writing work would also use the Desktop and Laptop in the
present day, the Tribunal was right in assessing the loss of
earning capacity in view of Raj Kumar (supra) as 50%. The
three income tax returns placed on record including the two
previous Assessment Year would show that the First
Respondent’s income gradually increased from AY-1994-95 to
AY-1996-97. The First Respondent was entitled to be given an
addition of 50% of the income towards future prospects. The
compensation for loss of earning capacity at the rate of ` 6,000/-
would come to ` 7,72,800/- (` 6,000/- x 12 – 7600/- (income
tax) + 50% x 16 x 50%). MAC APP 264/2005 Page 25 of 30
FUTURE MEDICAL EXPENSES/IMPLANTATION OF
ARTITIFICIAL LIMB.
27. The First Respondent as PW-1 deposed that he would feel pain
in his right limb and had to go for physiotherapy periodically.
He deposed that he would spent ` 1200/- to ` 1500/- for taking
medicines for diabetes and other health problems like high
Cholesterol level. First Respondent did not lead any evidence
to prove that he suffered diabetes and high level of Cholesterol
because of the accident. The Tribunal rightly declined to grant
any compensation for the same. At the same time, considering
the nature of injuries suffered, it can be inferred that the First
Respondent would require physiotherapy from time to time. I
award lump sum compensation of ` 15,000/- towards future
medical expenses/physiotherapy.
28. The bone of contention between the parties is with regard to the
purchase of artificial prosthesis. During inquiry before the
Tribunal, the First Respondent himself proved the quotation
Ex.PW-11/A and PW-11/B to show the price of the prosthesis
as ` 2,98,100/-. PW-11 Rajender Kumar examined by the First
Respondent deposed that artificial limb had been provided to
about 900 patients with 100% success rate. The maintenance
cost for a period of five years was given by him to be `15,000/-.
At the time of the Appeal, quotation of another version of that
very company was placed on record whose costs is quoted as `
11,13,000/-. It is urged by the learned counsel for the First MAC APP 264/2005 Page 26 of 30
Respondent that since he (the First Respondent) was a
professional CA he was expected to have meetings with his
high ranking clients and attend various conferences and
therefore, needed the latest prosthesis as was mentioned in the
quotation dated 04.04.2011. It is submitted that one prosthesis
may last from 7-8 years and therefore, the First Respondent
would need five prosthesis considering his life expectancy to be
75 years.
29. On the other hand, it is submitted by the learned counsel for the
Appellant that the fact that the First Respondent did not go for
purchase of any prosthesis till hearing of the appeal would
speak volume that he really did not need any artificial limb or
he might have purchased a cheaper version.
30. It was the First Respondent himself who wanted an artificial
limb from Endolite and proved its quotation through PW-11 for
` 2,98,000/-. It is contended on First Respondent’s behalf that
the artificial limb could not be purchased because of non-release
of the compensation. I would not agree. The compensation was
released to the First Respondent as and when he applied for the
same during pendency of the appeal. Considering that the First
Respondent was a professional CA and would need an artificial
limb to carry out day to day activities to the extent possible, I
would grant the cost of two artificial limbs and the
compensation of ` 3,15,000/- is increased to ` 6,30,000/-
including the cost of maintenance as ` 30,000/-. MAC APP 264/2005 Page 27 of 30
PROVISION OF AN ATTENDANT/DRIVER
31. First Respondent examined PW-9 Rohit Kumar who deposed
that he was working as Assistant with First Respondent since
1995. He was initially getting a salary of ` 1200/- per month
which was subsequently raised to ` 2500/- per month. In crossexamination the witness deposed that in the year 1995 when he
joined the services of the First Respondent six employees were
working with him. Even in those days, he (First Respondent)
would take some officials with him during his visits to the ITO.
Once the First Respondent was granted compensation towards
loss of earning capacity, he was not entitled to any
compensation for engaging office assistance. At the same time,
considering First Respondent’s status he would need help of a
driver in driving his motor car who can also double up as his
personal attendant.
32. The Tribunal granted a sum of ` 50,000/- as lump sum
compensation towards special diet, conveyance and attendant.
The minimum wages of a skilled worker on the date of the
accident were ` 1919/- per month. If a young driver between
the age of 25-35 was employed by him, he would help in
ferrying the First Respondent from one place to another place
and would also help him in carrying his day to day activities. I
would apply the multiplier of 16 to the salary of a driver and
would award him a compensation of ` 2,000/- x 12 x 16 = `
3,84,000/-. In view of provision made for a driver, the First MAC APP 264/2005 Page 28 of 30
Respondent would not be entitled to any compensation for
purchase of an automatic motor car.
33. I would further award him a sum of ` 10,000/- towards special
diet and ` 5,000/- for conveyance for attending to the doctor.
PAIN AND SUFFERING / LOSS OF AMENITIES /
DISFIGUREMENT
34. A compensation of ` 2,00,000/- was granted to the First
Respondent for pain and suffering, loss of amenities of life and
loss of expectancy. In the case of Raj Kumar (supra) it was
held that where compensation of more than 50% of loss of
earning capacity is granted, the compensation for loss of
amenities in life should be nominal.
35. In this case, I have granted a compensation of 50% towards the
loss of earning capacity. There are a catena of judgments where
compensation of ` 3,00,000/-was awarded towards loss of one
limb above elbow or above knee. In S.Achuthan v. M. Gopal, 3
(2003) ACC 765 (DB), a compensation of ` 3,00,000/- was
granted towards pain and suffering in the case of fracture
Tibia/Fibula left leg and neurological injuries. In the case of
Oriental Insurance Company Limited v. Vijay Kumar Mittal &
Ors. 2008 ACJ 1300 after referring to a number of decision, this
Court awarded a sum of ` 2.5 lacs towards non pecuniary
damages for the loss of right leg below knee i.e. 60% permanent
disability.MAC APP 264/2005 Page 29 of 30
36. In the circumstances, I would award a sum of ` 1,00,000/- each
towards pain and suffering, towards loss of amenities in life and
towards disfigurement.
REIMBURSEMENT OF MEDICAL EXPENSES
37. The First Respondent placed on record bills for purchase of
medicines for ` 8,000/- and paid ` 20,945/- towards treatment
in Sir Ganga Ram Hospital. Grant of compensation of `
30,000/- under this head cannot be faulted.
38. The overall compensation granted by the Tribunal and by this
Court is extracted in the tabulated form as under:-
Head of Compensation Granted by
the Tribunal
Granted by
High Court
1. Reimbursement of medical
expenses
` 30,000/- ` 30,000/-
2. Permanent disability/loss of
future earning
` 5,76,000/- ` 7,72,800/-
3. Pain, sufferings and loss of
enjoyment of amenities of life
` 2,00,000/- ` 3,00,000/-
4. Provision of artificial limb ` 3,15,000/- ` 6,30,000/-
5. Special diet/conveyance/other
assistant
` 50,000/-
6. Future medical expenses/
Future Physiotherapy
-- ` 15,000/-
7. Provision of a driver-cumattendant
` 3,84,000/-
8. Special Diet and conveyance
for attending to the doctor
` 15,000/-MAC APP 264/2005 Page 30 of 30
TOTAL 11,71,000/- 21,46,800/-
39. The Tribunal awarded interest @ 6% per annum from the date
of filing of the petition till the date of payment. The interest
rates were quite low at the beginning of this century which
impelled the Tribunal to award interest at the rate of 6% per
annum. The accident took place in the year 1995. The interest
rates were very high at that time. Again there is rise in the
interest rate on account of inflation being in doubt digits. In the
circumstances, the First Respondent would be entitled to
interest @ 7.5 % per annum throughout.
40. 75% of the enhanced amount along with its interest shall be
held in FDR in UCO Bank, Delhi High Court Branch for a
period of seven years, on which First Respondent would be
entitled to payment of interest on quarterly basis. Rest of the
amount along with interest shall be released to the First
Respondent forthwith.
41. In the result, MAC APP.264/2005 filed by the Appellant
Corporation is dismissed and the cross objections filed by the
First Respondent are allowed in above terms. No costs.
42. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 03, 2012
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