MINATI DAS v. LAXMIDHAR MOHANTY — 1976 DIGILAW 24 (ORI)

JUDGMENT S. Acharya, J.—The Appellant filed a petition u/s 110-A of the Motor Vehicles Act (hereinafter referred to as the 'Act') claiming compensation on account of the injury sustained by her in a motor accident which caused her abortion after 7 days thereof. 2. According to the Appellant, she on 19.2.73 was traveling in the "bus ORP 2763 from Satasankha towards Pipli on the Puri- Cuttack road. Another bus ORU 5556 was going ahead of the bus in which the Appellant was traveling. The bus ORU 5556 stopped near village Badhi without leaving any space for the second bus (ORP 2763) to go on its own way passing the first bus. It is also alleged that the second bus ORP 2763 was being driven in a rash and negligent manner and it was not maintaining a safe distance from the first bus and so the second bus collided against the first on its back side as soon as it stopped suddenly on the road at the above mentioned place. The claimant, at the time, was carrying for about 6 to 7 months, and because of the impact due to the aforesaid collision the claimant was thrown out of her seat and she dashed against the seat in front of her and became unconscious at the spot. She was thereafter taken to the Mangalpur Primary Health Centre nearby, and after two days' stay in the said Health Centre she was taken to her village where she was treated by doctors available at near about places. As her condition, instead of improving, deteriorated, she was taken to the Puri Government Hospital on 25.2.73 where she was admitted on that day as an indoor patient. While she was in that Hospital, she on 26.2.73 aborted and gave birth to a dead child. After her abortion she was kept in the Hospital till 1.3.73. 3. Opposite party No. 1, Respondent No. 1 herein is the owner of the bus ORP 2763. Opposite party No. 2, Respondent No. 2 herein, is the owner of the bus ORU 5556. Opposite party No. 3, Respondent No. 3 herein, was impleaded as the insurer of bus ORP 2763, and opposite party No. 4, Respondent no, 4 herein, admittedly is the insurer of the bus ORU 5556. 4. Opposite party No. 2, Respondent No. 2 herein, is the owner of the bus ORU 5556. Opposite party No. 3, Respondent No. 3 herein, was impleaded as the insurer of bus ORP 2763, and opposite party No. 4, Respondent no, 4 herein, admittedly is the insurer of the bus ORU 5556. 4. The opposite parties admitted that there was some such accident between the two buses, but they contested the claim put forward by the claimant stating inter alia that the buses were not being driven in any rash and negligent manner ; the drivers of the buses did not commit any rash and negligent act ; and the claimant did not sustain any injury of any kind due to the said accident. Opposite party No. 3 in its written statement, apart from contesting the claims on other grounds, further alleged that the bus ORP 2763 had not been insured by this Insurance Company at the relevant time and called upon the owner of the said bus, opposite party No. 1, to produce the policy. 5. The court below finds that the accident in question happened due to the rash and negligent driving of the bus ORP 2763, and that there was no negligence on the part of the driver of the other bus ORU 5556. Thereafter, on its own appreciation of the evidence on record it has arrived at the finding that claimant has not been able to establish satisfactorily that she was traveling in the rear bus ORP 2763 when the accident took place, and so the question of her sustaining any injury in the said accident does not arise and accordingly she is not entitled to any compensation in this case. It also finds that the bus ORP 2763 had not been insured with Respondent No. 3 at the relevant time. The Tribunal however has stated that compensation of Rs. 5,000/- could have been awarded to the claimant for her abortion had she proved that the said abortion was caused to her due to the said accident. The claimant has preferred this appeal against the aforesaid findings of the court below. 6. Mr. The Tribunal however has stated that compensation of Rs. 5,000/- could have been awarded to the claimant for her abortion had she proved that the said abortion was caused to her due to the said accident. The claimant has preferred this appeal against the aforesaid findings of the court below. 6. Mr. R.C. Patnaik, the learned Counsel for the Appellant, at the outset urged that the finding of the court below that the claimant was not traveling in the bus ORP 2763 on 19.2.73 at the relevant time is incorrect and contrary to the evidence on record. On a perusal of the evidence on record and on hearing the counsel appearing for all the parties in this appeal, I find that the above comment made by Mr. Patnaik is correct and justified. P. W. 1 is the claimant herself. She has. in detail stated as to how the accident took place. She has stated that she was traveling in the bus ORP 2763 alongwith her husband (P. W. 3) and she was sitting in the third row behind the driver's seat. That bus was being driven at a high speed and it wanted to overtake another bus, ORU 5556, going ahead of it. The first bus (ORU 5556) suddenly stopped almost in the middle of the road near village Badhi and there was no space left for the second bus to cross the first bus. As the second bus was moving very fast and very close to the first bus it could not stop its motion and it dashed against the back side of the first bus. Due to the jolting caused by the above impact the claimant was thrown out of her seat and she dashed against the seat in front of her, as a result of which she became senseless, and so she was taken therefrom to the Mangalpur Primary Health Centre nearby. Her evidence to the above effect has not been successfully assailed in cross-examination, though some effort in that direction was made by all the advocates appearing for opposite parties 1,2, and 3. P.W. 2 is an independent witness without having any connection with the parties to the proceeding. He was traveling in the first bus ORU 5556. Her evidence to the above effect has not been successfully assailed in cross-examination, though some effort in that direction was made by all the advocates appearing for opposite parties 1,2, and 3. P.W. 2 is an independent witness without having any connection with the parties to the proceeding. He was traveling in the first bus ORU 5556. He states that the first bus stopped near village Badhi, and when some passengers in that bus were getting down from it and some others were getting into it, the second bus ORP 2763 came from behind and dashed against the first bus. Due to the said impact there was some jolting, and he (P.W. 2) soon thereafter found that the claimant in the second bus fainted, and she was taken out of the bus. The testimony of P.W. 2 that the claimant was traveling in the second bus and that after the accident she became unconscious and was taken out of the bus has not at all been challenged in cross-examination. Nothing has been asked to him to assail that evidence and no suggestion even was made to him in cross-examination to the effect that he was not stating the truth. Nothing has been asked to him as to why he would come depose falsely in order to support the claimant's case if the same was absolutely false. There is nothing on record to show that he was in any way interested in the claimant or her husband in any manner whatsoever. There is even no suggestion to that effect or to the effect that he was not stating the truth. The court below was not justified in discarding his evidence merely because of his admission that he did not possess the bus ticket issued to him for the said journey and he did not assist the Petitioner at the spot when she became senseless. The said ticket was issued in February, 1973 and he was not expected to preserve the same till his deposition in February, 1974. Moreover, an unconnected male passenger of another bus may shirk to render any effective assistance to a lady passenger in the other bus specially when her husband was traveling with her and the passenger was to proceed ahead with his journey on his own work. P.W. 3 is the husband of the claimant. Moreover, an unconnected male passenger of another bus may shirk to render any effective assistance to a lady passenger in the other bus specially when her husband was traveling with her and the passenger was to proceed ahead with his journey on his own work. P.W. 3 is the husband of the claimant. He has corroborated the testimony of P.W. 1 in a satisfactory manner in all material particulars. His testimony that he and his wife were traveling by the said bus has also not been challenged in cross-examination. He has been separately cross-examined by the counsel appearing for opposite parties 1,2 and 4, buts his evidence that due to the said account his wife became senseless in the aforesaid manner could not be successfully assailed by the opposite parties. On the above evidence on record and especially that P.W. 2 which, as stated above, satisfactorily corroborates the evidence of P. Ws. 1 and 3 to the above effect. I am satisfied that the claimant has been able to establish satisfactorily that she was traveling in the bus ORP 2763 on the date of occurrence when the accident took place. The court below was not justified in disbelieving her case to this effect on account of the fact that she could not produce the ticket which she purchased for traveling in the said bus, and other unconvincing and flimsy grounds. 7. The court below has arrived at the finding that the bus ORP 2763 was being driven in a rash and negligent manner, the driver of the bus ORU 5556 was not guilty of any negligence and so only the driver of the bus ORP 2763 was responsible for the said accident and the driver of the other bus was not responsible for the same. On a perusal of the evidence on record I am satisfied that the said findings are correct. P.W. 3 has stated that the bus ORP 2763 was trying to over take the first bus. P.W. 1 has stated that the driver of the bus in which she was traveling, i.e. ORP 2763, did not try to stop that vehicle when he found that the other vehicle stopped in front of the said bus. P.W. 3 has stated that the bus ORP 2763 was trying to over take the first bus. P.W. 1 has stated that the driver of the bus in which she was traveling, i.e. ORP 2763, did not try to stop that vehicle when he found that the other vehicle stopped in front of the said bus. She further stated that the second bus could not have gone by passing the first bus because there was no space for that purpose and there were heaps of stones on the right side of the road at that place. P.W. 2 in his cross-examination has stated that the second bus coming from the back dashed against the first bus at a time when some passengers were getting down from and getting into the first bus. On the above evidence which has not been assailed and other features from the evidence on record noted by the court below, I am satisfied with the finding of the court below, that the driver of the second bus (ORP 2763) was driving the same in a rash and negligent manner, and due to that the accident took place, is correct and justified. 8. It is urged by Mr. Patnaik that the finding of the court below that the bus ORP 2763 had not been insured with opposite party No. 3 at the relevant time is incorrect and against the weight of the evidence on record. It has been admitted in the written statement filed on behalf of the Insurance Company, opposite party No. 3, that the bus ORP 2763 was insured with this Company for the year 18.12.71 17.12.72. Ext. A, the Insurance Policy, shows that the particular vehicle was insured for the year 18.12.73-18.12.74. In this Policy, while giving an estimation of the amount of premium which was paid for insuring the said bus for the period 1973-74, discount on account of "No claim bonus" was given as is evident from the said policy. The above fact presupposes that the vehicle had been insured with some Company for the previous year, i.e. 18.12.72 to 17.12.73 which is the relevant period for the purpose of this case. Moreover, the owner, Respondent No. 1, produced in the court below a receipt dated 18.12.72 showing payment of Rs. 338. 95 on account of the insurance premium for the bus ORP 2763. Moreover, the owner, Respondent No. 1, produced in the court below a receipt dated 18.12.72 showing payment of Rs. 338. 95 on account of the insurance premium for the bus ORP 2763. This is a printed receipt bearing No. 19206 and Agent of the Company appears to have signed this receipt, and the name of the Agent appears in this receipt. Opposite party No. 3 was represented by two Advocates in the court below, and this receipt was exhibited and marked as Ext. B without any objection on behalf of the Insurance Company, opposite party No. 3. Mr. Roy appearing for the opposite party No. 3 was granted time to state on instruction from his client, opposite party No. 3, if this receipt was not granted by the Insurance Company, and whether in view of the above documents on record the Insurance Company is able to assert that said that vehicle ORP 2763 had not been insured by them for the period 18.12.72 to 17.12.73. In view of the said receipt Mr. Roy could not question the genuineness of Ext. B nor could he assertively state that the said bus was not insured by the Insurance Company for the aforesaid period. That being so and on the above evidence on record it is satisfactorily established that the bus ORP 2763 had been insured with the Insurance Company, Respondent No. 3 in this appeal, for the relevant period. 9. The court below has assessed the compensation at Rs. 5,000/- only due to the loss of the child on account of the said accident. The evidence of P.W. 1 that due to the jolt in the said accident the claimant was thrown out of her seat in the bus and she dashed against the seat in front of her and became senseless, this fact is satisfactorily corroborated by the evidence of P. Ws. 2 and 3. As stated above, the evidence of P.W. 1 to the above effect, could not be assailed and the evidence of P. Ws. 2 and 3 to his effect was not challenged at all. P.W. 1 further stated that from the place of accident she was taken by her husband to the Mangalpur Primary Health Centre where she remained under the treatment of the doctor in that Centre for two days. 2 and 3 to his effect was not challenged at all. P.W. 1 further stated that from the place of accident she was taken by her husband to the Mangalpur Primary Health Centre where she remained under the treatment of the doctor in that Centre for two days. Thereafter she went to her village where she was being treated by the doctors of Mangalpur and Sakhigopal. P.W. 3 has also corroborated her evidence to the above effect. True it is that excepting the oral testimony of P. Ws. 1 and 3 to this effect there is no other evidence to corroborate the same. But their evidence on this aspect of the matter has not been seriously challenged or successfully assailed. There is ample evidence on record to show that the claimant was hospitalised in the Puri Government Hospital on 25.2.73 and on the very next day she aborted and gave birth to a dead child. The evidence of P.W. 1 to that effect is corroborated by the evidence of P.W. 4, a lady doctor of the status of the Additional District Medical Officer posted at the Puri Headquarters Hospital at the relevant time, and the bed-head ticket (Ext. 1) of the Puri Headquarters Hospital. P.W. 4 has testified to the fact that on 25.2.73, when she was in charge of the Gynic Ward of the said Hospital, the claimant was admitted into the hospital with leaking membranes and watery discharge for about 5 1/2 months. She has further stated that on the following day, i.e. on the 26th, the claimant aborted and gave birth to a dead child, and she was discharged from the hospital on 1.3.73. She has further stated that at the time of the claimant's admission in the hospital she gave the history of her ailment and ascribed the same to a motor accident; and P.W. 4 made an endorsement to the above effect in the bed-head ticket Ext. 1. She has opined that the motor accident might have caused the leaking of the membranes which might have led to the death of the fetus and abortion of the claimant. Her statement in cross-examination, that when the claimant was admitted into the hospital the heart sound of the fetus could not be heard, clearly shows that by that time there was no life in the fetus. The occurrence, as stated above, took place on 19.2.73. Her statement in cross-examination, that when the claimant was admitted into the hospital the heart sound of the fetus could not be heard, clearly shows that by that time there was no life in the fetus. The occurrence, as stated above, took place on 19.2.73. The claimant with leaking membranes and a dead fetus in her womb was admitted in the Puri Headquarters Hospital on 25.2.73. There was no external injury on the private parts of the claimant, as stated by the lady doctor. That indicates that no other external injury could possibly be the cause for the said abortion. On the evidence of the doctor and P. Ws. 1, 2 and 3 discussed above, one can reasonably arrive at the conclusion that the abortion of the claimant was caused due to the aforesaid accident. That being so, the claimant is entitled to get compensation not only for her abortion but also for her physical and mental sufferings and her expenses for treatment. 10. The court below has assessed Rs. 5,000/- as compensation for the loss of the claimant's child due to abortion, and it has not assessed any compensation on any other heads or items of claim stated in the claim petition. Besides compensation for the loss of the child, the claimant has claimed compensation for loss of income, expenses incurred on account of her treatment, and on some other heads as specifically mentioned in the claim petition. It is established on the evidence on record that the claimant became unconscious due to the said accident. After 7 days thereof she aborted and gave birth to a dead child. Due to all these she must have suffered physical pain and setback and mental anguish for quite some time. On this account, therefore, I would award her a compensation of Rs. 1,000/-. 11. The claimant was an actress in a professional theatre party. At the relevant time she also undergoing training to take up a job of school mistress. At the time when she deposed in the court below she was drawing a salary of Rs. 230/- per month. The doctor P.W. 4 states that the abortion in question would have affected the health and beauty of the claimant for a period of six months. Considering the facts and circumstances of the case and the nature of the claimant's job one can reasonably award a compensation of Rs. 230/- per month. The doctor P.W. 4 states that the abortion in question would have affected the health and beauty of the claimant for a period of six months. Considering the facts and circumstances of the case and the nature of the claimant's job one can reasonably award a compensation of Rs. 1,000/- on account of her loss of income due to the said accident. 12. The court below has not awarded any compensation for the expenses incurred for the treatment of the claimant. The claimant after the accident was taken to the Primary Health Centre. Thereafter for 2-3 days she was being treated in her own house by some local doctors of near about places and from the 25th February, 1973 till the 1st March, 1973 she was in the Puri Headquarters Hospital. Even after her discharge from the hospital she was undergoing treatment under P.W. 4. On these facts one can reasonably award a compensation of Rs. 500/- to the claimant towards her expenses for treatment. 13. There is no evidence or basis to award any compensation on the other items of claim out forward by the claimant. 14. Thus apart from the compensation of Rs. 5,000/- assessed by the court below for the loss of the child, the claimant is also entitled to Rs. 500/- on the other heads as stated above. The claimant, therefore is entitled to get compensation of Rs. 7,500/- with interest at the rate of 6 per cent per annum to be calculated from the date of the filing of the claim petition till the payment of the compensation amount to the claimant. The claimant is also entitled to get the costs of the proceeding in the court below and of this appeal, and on this account a total sum of Rs. 300/- be paid to the claimant. 15. Under the provisions of Section 95(2)(b) (ii) (4) read with Section 110-CC of the Motor Vehicles Act, the Insurance Company Respondent No. 3) in a case of this nature is liable to pay, with interest as stated above, Rs. 5000/- out of the aforesaid compensation amount. The balance compensation amount of Rs. 2,500/- shall be paid with interest at the same rate and for the same period by the Respondent No. 1, the owner of the bus ORP 2763. He shall also pay the total costs of Rs. 300/- as stated above. 5000/- out of the aforesaid compensation amount. The balance compensation amount of Rs. 2,500/- shall be paid with interest at the same rate and for the same period by the Respondent No. 1, the owner of the bus ORP 2763. He shall also pay the total costs of Rs. 300/- as stated above. The appeal, therefore, is allowed with costs as already assessed above.