MANGALAJI SURAJI v. GOVINDLAL SAMALDAS SONI — 1974 DIGILAW 76 (GUJ)

J. B. MEHTA, T. U. MEHTA, J. ( 1 ) THE appellants of this appeal were proceeded against by the respondent before the Motor Accidents Claims Tribunal Ahmeda- bad for obtaining an award of Rs. 20 0 as compensation for the inju- ries received by him during the course of an accident which occurred on 25 July 1970 at about 6. 00 p. m. near Gandhi Bridge traffic circle on the Wadaj side road. The learned Judge of the Tribunal having awarded the amount of Rs. 15 100 as total compensation against the present appellants this appeal is preferred by them. The respondent has however preferred cross-objections claiming the full amount of Rs. 20,000. 00- ( 2 ) SHORT facts of the case are that the respondent is a clerk of advo- cates working in High Court. on 25th July 1970 after the court hours at about 6. 00 p. m. he was returning home and going to his house on his scooter towards the Wadaj side. At that time he came from the Gandhi Bridge side took a turn towards the Wadaj road near the Income-tax office and then entered the Wadaj road. After he went a little ahead in the middle of the road on his scooter a motor-truck bearing no. G. T. D. 3499 which was driven by the first appellant was found coming from the opposite side. At that time the traffic police had closed the clearance of the side from which the motor-truck was coming and therefore there was some traffic jam near the traffic point on the side from which the motor- truck was coming. However soon after the respondent entered the Wadaj road and as he was passing by the middle line of the road the traffic clearance was given with the result that the vehicles which were standing stationary on the road on the right hand side of the respondent started moving. The case of the respondent is that by this time the appellant No. 1 who was driving the above referred truck tried to overtake some rickshaws which were ahead of that truck. In the process the right hand side of the truck is said to have collided against the scooter which was driven by the respondent. The case of the respondent is that by this time the appellant No. 1 who was driving the above referred truck tried to overtake some rickshaws which were ahead of that truck. In the process the right hand side of the truck is said to have collided against the scooter which was driven by the respondent. The respondent says that on account of this inpact he lost control over the scooter The head of the respondent is said to have dashed against the motor truck and thereafter he was thrown away on the ground. His scooter also was found lying a few feet away from the motor truck. Immediately after this accident the traffic police came there and chalked out the limits within which the two vehicles were found. The vehicles were thereafter allowed to 80 and the panchnama of the place of the incident was completed at 8. 00 p. m. on that very day. ( 3 ) AFTER the accident the respondent was taken to V. S. Hospital where he was treated by Dr. Bharatkumar Jethalal Damani whose deposition appears at ex. 31. The doctor found that there was a depressed fracture of the skull of the respondent. The respondent was therefore operated upon on 20th July 1970 During the course of the operation it was found that one of the pieces of the skull bone was depressed and required to be removed. There were signs of some damage to the brain of the respondent. Ultimately the respondent was discharged from the hospital on 11. 8. 70. The doctor says in his deposition that the respondent is left with some defect in the bone of his skull and therefore there are some future chances of the respondent developing epilepsy. He has further deposed that the respondent is not in a position to take any further risk of brain injury. Evidence shows that even after the respondent was discharged as an indoor patient of the hospital he was required to be treated as an outdoor patient for some time. ( 4 ) THUS the case of the respondent is that the accident occurred on account of the fact that the appellant no. 1 who was driving the trucks tried to overtake the rickshaws which were standing in the front of his truck at the time when the traffic clearance was given. ( 4 ) THUS the case of the respondent is that the accident occurred on account of the fact that the appellant no. 1 who was driving the trucks tried to overtake the rickshaws which were standing in the front of his truck at the time when the traffic clearance was given. ( 5 ) AS against this the case of the appellant is that the truck driver was on the correct side of the road and that he had not made any attempt to overtake the rickshaws. According to the appellants the respondent was passing over the other side of the road on his scooter with a good deal of spaced and in an attempt to overtake certain cyclists who were passing on his side of the road he could not take proper care of his driving and dashed against the truck driven by the appellant no 1. Accor- ding to the appellants the impact took place on the right rear wheel of the truck for which the driver of the truck was in no manner responsible. ( 6 ) THE learned Judge of the Tribunal has held that the accident was a result of the rash and negligent act of the appellant no. 1. inasmuch as he tried to overtake rickshaws which were ahead of the truck. The learned Judge has therefore computed the amount of compensation by awarding Rs. 1 0 for loss of income during the medical treatment received by the respondent Rs. 300. 00 for the medical expenditure incurred by the respondent and a further amount of Rs. 300. 00 for the damage done to the scooter driven by the respondent. Thus the total amount of Rs. 1600. 00 is awarded by the learned Judge as special damages. He has further awarded the amount of Rs. 9 0 for loss of earning capacity and the amount of Rs. 4500. 00 for pain suffering permanent disability and disfiguration. Thus the learned Judge has awarded the total amount. of Rs. 15 100 instead of Rs. 20 0 claimed by the respondent. ( 7 ) DURING the course of the hearing of this appeal Shri Christie who appeared on behalf of the appellants has made a grievance of the fact that the appellants nos. 2 and 4 were joined as parties to the proceedings before the Tribunal at a very late stage. 20 0 claimed by the respondent. ( 7 ) DURING the course of the hearing of this appeal Shri Christie who appeared on behalf of the appellants has made a grievance of the fact that the appellants nos. 2 and 4 were joined as parties to the proceedings before the Tribunal at a very late stage. The record of the case shows that these appellants were brought on the record as parties on 15. 7. 71 while the petition was filed on 3rd November 1970 According to Mr. Christie therefore so far as these appellants are concerned the petition would be time barred. We do not find any substance in this contention of the appellants because so far as the appellant no. 2 is concerned it is the name of the Transport Company to which the truck belonged. Now appellant no. 3 who is partner of the company was already joined as party to the original proceedings at the initial stage. Subsequently when the respondent found that appellant no. 3 was the partner in Khedbrahma Goods Transport Service he moved the court to allow him to implead the said Khedbrahma Goods Transport Service in its own name and to add to the name of the appellant no. 3 a description describing him as a partner of the said Transport Company. These facts show that the appellant no. 3 was already a party to the proceedings and what was done subsequently was only to add some description to his name. The appel- lant no. 2 was added as a party to the proceedings at a subsequent stage because that name was revealed to the respondent at a late stage: But the interest of the respondent no. 2 was already represented by the appe- llant no. 3 who was impleaded as a party to the proceedings from the very beginning. Under these circumstances the joinder of the appellant no. 2 as a party to the proceedings was merely formal. So far as appe- llant no. 4 is concerned it is the Insurance Company and as such it was not a necessary party to the proceedings. The respondent has joined this Company after giving a due notice so that this Insurance Company could take statutory defences during the course of the proceedings. In our view therefore no question of limitation would arise on account of the late joinder of the appellants nos. The respondent has joined this Company after giving a due notice so that this Insurance Company could take statutory defences during the course of the proceedings. In our view therefore no question of limitation would arise on account of the late joinder of the appellants nos. 2 and 4 as parties to the original proceedings. ( 8 ) ANOTHER grievance which was made by Shri Christie was that though originally the appellant had made the claim of only Rs. 9 800 he subsequently amended his claim and raised it to the amount of Rs. 20 0 According to Shri Christie the learned Judge of the Tribunal should not have allowed the appellant to make this amendment. We do not find any substance even in this contention because if the respondent subsequently realised the gravity of the real nature of the injury suffered by him it was open to him to obtain the necessary amendment even by raising his claim. ( 9 ) THE next and the most important contention which is raised on behalf of the appellants by Shri Christie was that the learned Judge of the Tribunal has erred in coming to the conclusion that the accident in question was the result of any rashness or negligence on the part of the appellant no. 1 who was driving the above referred truck. We have already noted above the respective contentions of the parties on this question. The admitted facts are that when the respondent was given clearance at the traffic point he came from Gandhi Bridge side took a turn round the traffic circle and entered the Wadaj road on his scooter. After entering the Wadaj road he was near the middle line on road which is demarcated by a white strip of line. When the respondent passed by the traffic point the opposite side from the Wadaj road on which the appellants truck was passing was closed by the traffic police with the result that that side was jammed by the traffic near the traffic point. The accident has occurred only after the traffic clearance was given to this side of the Wadaj road. The appellant no. The accident has occurred only after the traffic clearance was given to this side of the Wadaj road. The appellant no. 1 Mangalaji Suraji who was driving the appellants truck admits in his deposition that as soon as he approached the jammed traffic near the traffic point the road clearance was given by the traffic police with the result that he was not required to stop his truck. He further admits the there were about 2 rickshaws ahead of him but he does not admit the respondents allega- tion that he tried to overtake these rickshaws. According to this appellant the respondent suddenly dashed against his truck on the right rear wheel thereof and after the impact he was thrown out of his scooter. On consideration of the evidence which is recorded in the case we are of the opinion that the learned Judge of the Tribunal has rightly concluded that the scooter of the respondent did not collide with the right rear wheel of the truck. It is found that after the collision the respondent himself was thrown out of the scooter and the scooter also went ahead by few feet. The learned Judge of the Tribunal is therefore right in his observation that had the scooter collided against the right rear wheel of the truck it would have been found far away on the northern side of the truck but the panchnama shows that the scooter was found at a distance of 6 2 on the western side of the truck. The appellant no. I who was driving the truck does not claim to have any personal knowledge as to whether the respondents scooter collided against the truck on its front or on its rear. Since the tyre of the right rear wheel of the truck was found to be having some scratch the appellant no 1 has presumed that the scooter muse have collided against that wheel. Such a presum- ption is erroneous because such scratches are likely to be all over the body of the truck which is a goods carrying vehicle. In this connection it should be noted that the case of the respondent is that when the truck tried to overtake the rickshaws which were standing in front of it it collided against this scooter on its front side. In this connection it should be noted that the case of the respondent is that when the truck tried to overtake the rickshaws which were standing in front of it it collided against this scooter on its front side. It is also suggested by the respondent that on the mud guard of the front of the truck there was an iron rod which struck against his head and caused him serious head injuries. On account of this plea of the respondent the parties have taken some pains during the course of the proceedings before the Tribunal to determine whether the had injuries received by the respondent could have been caused by the said iron rod. According to the appellants this iron rod was on the front bumper and had a rubber ball on the top and therefore head injury which the respondent received was not possible to be caused by this rod. We find that the learned Judge of the Tribunal has rightly observed that it is not relevant to consider whether the bead injury was caused to the respondent by this iron rod or by any other part of the truck. The real question is whether this injury was caused to the respondent on account of the fact that true first appellant made an attempt to overtake the rickshaws which were standing in front of the truck. The pertinent facts relating to this question are that the appellant was not required to stop his vehicle because no sooner he approached the jammed traffic near the traffic point the traffic clearance was given. The learned Judge has considered the probability that since the first appellant was in motion and since there were two or three rickshaws ahead of his vehicle it is very likely that he tried to overtake these rickshaws which would have necessarily taken some time in starting. This particular probability gives sufficient corroboration to the respondents deposition wherein he has clearly stated that the truck driven by this appellant no. 1 collided against his scooter only because the appellant tried to overtake the rickshaws which were standing in front of his vehicle. The evidence recorded in the case consists of the word of the respondent as against the word of the first appellant who was driving the truck. 1 collided against his scooter only because the appellant tried to overtake the rickshaws which were standing in front of his vehicle. The evidence recorded in the case consists of the word of the respondent as against the word of the first appellant who was driving the truck. The learned Judge of the Tribunal has preferred to rely upon the word of the respondent after considering the probabilities of the case and even we after going through the whole evidence find ourselves in agreement with this particular finding of the learned Judge. We therefore hold that the first appellant had made an attempt to overtake the rickshaws which were standing in front of his vehicle and on account of that he swerved his vehicle towards his right hand side. This swerving has resulted in the collision of the right hand side of the truck with the scooter driven by the respondent. ( 10 ) IN this connection it should be noted that the position of the vehicle shown in the panchnama ex. 85 does not represent the correct position of this vehicle exactly at the time of the accident because the facts of the case show that after the collision between the two vehicles the first appellant swerved his vehicle towards his left hand side and moved a little further. Therefore the original position of the truck as well as the scooter which must have been at the time of the actual collis- ion cannot be ascertained from this panchnama. ( 11 ) HOWEVER the facts recorded in the panchnama show that soon after the accident occurred the scooter driven by the respondent was lying at a distance of 62 from the right rear side of the truck. The total width of the asphalt portion of the road at the place of the acci- dent was 32 8. The middle line of the road would therefore run somewhere at 16 from both of the sides. The evidence reveals that this middle line was demarcated by a white strip of line on the road. The place where the scooter was lying shows that it was lying quite adjacent to this middle line on the western half of the road. This position of the scooter therefore suggests that the whole of it was lying on the correct side of the road. The place where the scooter was lying shows that it was lying quite adjacent to this middle line on the western half of the road. This position of the scooter therefore suggests that the whole of it was lying on the correct side of the road. In other words the respondent was driving his scooter on the correct side and is not found to have crossed the middle line at the time of the accident. This is therefore one more factor which should be taken into account at the time of considering whether the truck driven by the first appellant had crossed the middle line or not. In our opinion the fact that the scooter was on its correct side gives further credence to the story given out by the respondent on this point. ( 12 ) THIS however does not conclude the matter because on consider- ation of the facts of this case we find that even the respondent has contributed a little to this accident. Reference to the deposition given by the respondent shows that while he was taking the turn towards the Wadaj road near the traffic circle he crossed and overtook two cycl- ists. Thereafter he entered the Wadaj road. Now after entering the Wadaj road he is not found to have kept his vehicle to his further left side as required by Traffic Regulation No. 1 of 10th Schedule of the Motor Vehicles Act 1939 According to this regulation the driver of a vehicle is required to drive his vehicle as close to the left hand side of the road as may be expedient and to allow all traffic which is proceeding in the opposite direction to pass him on his right hand side. It is this regu- lation which is not found to have been scrupulously observed because the facts of the case eloquently show that after entering the Wadaj road he was driving his scooter dangerously near the middle line of the road. As already stated above since the traffic on the opposite side was closed and since it was a peak hour of the day there were obviously many vehicles on the opposite side of the road. As already stated above since the traffic on the opposite side was closed and since it was a peak hour of the day there were obviously many vehicles on the opposite side of the road. It is common knowledge that when there is a traffic jam on account of the closure of a particular side the side traffic generally rushes to pass through the traffic point after the traffic police gives the clearance. Under the circumstances it would be dangerous for any vehicle to come very near to the middle line of the road from where the other traffic would be rushing to go through the traffic point after the road clearance is given. Under these circumstances the respondent ought to have taken care to keep his vehicle as close as possible to his left hand side. It appears that after overtaking certain cyclists near the traffic point he continued to remain dangerously near the middle line which was clearly demarcated on the road. We find that though there is no evidence to show that the respondent had crossed the middle line of the road with a view to overtake the cyclists going ahead of him as suggested by the appellants the respondent cannot get over the fact that he was not scrupulously observing the directions given by the above referred regulation no. 1 of the 10th schedule. Had he obse- rved these directions properly it is obvious that he would not have collided with the truck driven by the first appellant even if the latter made an attempt to overtake the rickshaws standing in front of his vehicle. Under these circumstances we find that even the respondent has contributed a little to this unfortunate accident. However his contribution was smaller compared to the contribution made by the appellant no 1 by his act of negligence and rashness in trying to overtake the rickshaws which were in front of his vehicle. In our opinion therefore the respon- dents contribution to the accident cannot be assessed by more than 15%. ( 13 ) THIS brings us to the question of compensation. ( 14 ) SO far as the actual expenditure which the respondent was requ- ired to incur for treatment of the injuries received by him we find no reason to interfere with the findings recorded by the learned Judges of the Tribunal. This expenditure amounts to Rs. 1600. ( 13 ) THIS brings us to the question of compensation. ( 14 ) SO far as the actual expenditure which the respondent was requ- ired to incur for treatment of the injuries received by him we find no reason to interfere with the findings recorded by the learned Judges of the Tribunal. This expenditure amounts to Rs. 1600. 00 and we confirm the same. ( 15 ) THE learned Judge has awarded the respondent the amount of Rs. 9 0 for loss of his earning capacity on the assessment of this loss at the rate of Rs. 50. 00 per month or 10% of his usual monthly income of Rs. 500. 00. It is clear from the medical evidence that the working capacity of the applicant is diminished as a result of this acc- ident. The learned Judge of the Tribunal has found that the respondent was at the relevant time making the earning of Rs. 500. 00 per month as he was working as a clerk to different advocates practising in the High Court. Looking to the permanent nature of this injury we find no reason to interfere with the finding of the learned Judge that the loss of earning capacity should be assessed at the rate of Rs. 50. 00 per month. At time of the accident the respondent was hardly 35 years of age. The Judge has therefore rightly taken 15 years multiple. Under the circumstances the assessment of the compensation of Rs. 9000. 00 for the loss of earning capacity is also found to be quite proper. ( 16 ) THE learned Judge has awarded the amount of Rs. 2500. 00 for pain shock and suffering Rs. 15 0 for permanent disability and loss of amenities of life and Rs. 500. 00 for disfiguration of face. This last item is awarded on account of some permanent scar on the head of the respondent. We find that the compensation given for these different items is very inadequate. The fact remains that the skull bone of the respo- ndent was fractured and he received brain injury. As already noted above the opinion of the doctor who has treated him is that there are chances of epilepsy in future and so far the future is concerned the respondent cannot afford to receive any further head injury. The fact remains that the skull bone of the respo- ndent was fractured and he received brain injury. As already noted above the opinion of the doctor who has treated him is that there are chances of epilepsy in future and so far the future is concerned the respondent cannot afford to receive any further head injury. It is therefore obvious that if by some misfortune the respondent receives any injury on his head in future all the prospects of his future life would be com- pletely destroyed. It need not be emphasised that every brain injury is serious in itself and therefore when a person suffers some life long difficulty with regard to his brain he always runs a grave risk in his life. Under these circumstances we find that the amount of com- pensation which could be awarded to the respondent for pain shock and suffering and permanent disability would not be less than Rs. 10 0 ( 17 ) THUS the total amount of compensation to which the appellant would be entitled comes to Rs. 20 600 However since we have found that the appellant has contributed to this accident to the extent of 15% we reduce this amount of compensation to Rs. 17 510 ( 18 ) THE result therefore is that the appeal fails and is dismissed while the cross-objections are partially allowed. An award of Rs. 17 510 instead of Rs. 15 100 as passed by the learned Judge of the Tribunal is ordered to be passed in favour of the respondent together with proportionate costs throughout and interest at the rate of 6% from the date of original petition to the date of realisation. For the claim of the appellant which is rejected it is ordered that each party shall bear its own costs. Order accordingly. .