PREM CHAND BASSI v. MANGAL SINGH — 1997 DIGILAW 138 (HP)

JUDGMENT R.L. Khurana, J. :- The above noted appeal and cross objections having arisen out of the award dated 28.8.1987 of the learned Motor Accident Claims Tribunal(II), Una, are being disposed of by this single judgment. 2. Briefly stated, the facts of the present case are these. On 22.10.1985, at about 10.10 a.m. at village Khaned about 4 Kms away from Thana Kalan, within the local limits of jurisdiction of Police Station, Bangana, District Una, an accident took place between car No. PAF-3525 and truck No. HPG-4279. Appellant, Prem Chand, hereinafter referred to as the claimant, sustained multiple grievous injuries during the course of such accident. The injuries so sustained included fracture of right femur. 3. Respondents 1 to 3, in the appeal, are the driver, owner and insurer, respectively, of the truck HPG-4279. They are being referred to accordingly hereinafter. 4. The claimant approached the learned Tribunal, by way of a petition under Section 110-A of the Motor Vehicles Act, 1939, claiming compensation to the tune of Rs. 10, 00,000/- for the bodily injuries sustained by him in the accident by averring that the accident took place on account of the rash and negligent driving on the part of the driver of the truck. 5. The driver, owner and insurer of the truck, while resisting the petition, denied the rash and negligent driving on the part of the driver of the truck. It was contended that the accident was as a result of rash and negligent driving by the claimant himself, who was driving the car at the relevant time. It was pleaded that the claimant due to excessive speed lost control over his car due to which it struck against the right-side of the truck, while coming from the opposite direction. 6. The learned Tribunal, after coming to the conclusion that the accident had taken place on account of the rash and negligent driving of the driver of the truck, awarded a sum of Rs. 1,13,000/-, as compensation to the claimant, under the following heads (a) Medical expenses - Rs. 63,000/- (b) Loss of future earnings - Rs. 40,000/-and amenities etc. (c) Pain and sufferings - Rs. 10,000/- The driver, owner and insurer were held liable jointly and severally. 1,13,000/-, as compensation to the claimant, under the following heads (a) Medical expenses - Rs. 63,000/- (b) Loss of future earnings - Rs. 40,000/-and amenities etc. (c) Pain and sufferings - Rs. 10,000/- The driver, owner and insurer were held liable jointly and severally. They were directed to pay/deposit the amount of compensation within 60 days from the date of award, failing which the claimant was held entitled to interest at the rate of 9% per annum from the date of the petition, that is, 19.4.1986 till the date of payment/deposit of the amount 7. Both the parties felt aggrieved by the award of the learned Tribunal. The claimant has come up before this court by way of an appeal assailing the correctness of the quantum of compensation awarded in his favour. It is contended that just and equitable compensation has not been awarded. The learned Tribunal has error in disallowing the medical expenses incurred by the , claimant in connection with his treatment at Bombay Hospital. The award of compensation under the heads pain and sufferings has been made on conjectures and surmises, without following any recognized criteria. The claimant has suffered permanent physical disability in the form of shortening of leg. Such disability has not been taken int6 account by the learned Tribunal. 8. The owner and insurer of the truck have assailed the impugned award by way of cross-objection, both on the issue of negligence and the quantum of compensation awarded. It is pleaded that the driver of the truck was neither rash nor negligent. The accident was due to the rash and negligent driving on the part of the claimant himself. It is further pleaded that the compensation awarded is even otherwise excessive. 9. It is the admitted case of the parties that the two vehicles, namely, the car and the truck were proceeding in the opposite directions at the relevant time. While the claimant was proceeding towards Hamirpur from una in his car, the truck was coming towards Una. It is also admitted case of the parties against each other. The driver of the truck, while appearing as RW1, has admitted that at the place of accident, the metalled road was about 13 feet wide with two feet wide Kucha portion on one side of the road and 4 feet wide Kucha portion on the other side of the road. The driver of the truck, while appearing as RW1, has admitted that at the place of accident, the metalled road was about 13 feet wide with two feet wide Kucha portion on one side of the road and 4 feet wide Kucha portion on the other side of the road. In other words, the total width of the road inclusive of Kucha portion was about 19 feet. According to the claimant, the truck was being driven in a rash manner in the middle 6f the road and while being so driven its right front wheel struck against the right front side of the car and due to such impact the car was turned towards right side. 10. It is in the statement of the driver of the truck as RW 1 that at the relevant time, besides the conductor Jaswant, one Rartana was travelling in the said truck. Neither Jaswant nor Rattana has been examined by the driver, owner and insurer of the truck. They being eye-witnesses to the accident were material witnesses. Therefore, on the failure of the driver, owner and insurer to examine them, an adverse inference will have to be drawn by presuming that had they been examined, they would not have supported the case of the driver, owner and the insurer of the truck. 11. On the facts and in the circumstances of the case, the learned Tribunal has rightly held that the accident was as a result of rash and negligent driving on the part of the driver of the truck. 12. The claimant has led evidence to show that a sum of Rs. 1, 04,000/-was spent by him towards his medical expenses, a sum of Rs. 41,000/- was spent for treatment of the claimant at Beach Candy Hospital, Bombay. The remaining amount of Rs. 63,000/- was spent for the treatment obtained by the claimant at New Delhi, the learned Tribunal allowed reimbrsement of medical expenses only to the extent of Rs. 63,000/-, that is, the amount shown to have been spent by the claimant for his medical treatment at New Delhi., The medical expenses incurred for the treatment at Bombay was dis- allowed. 63,000/- was spent for the treatment obtained by the claimant at New Delhi, the learned Tribunal allowed reimbrsement of medical expenses only to the extent of Rs. 63,000/-, that is, the amount shown to have been spent by the claimant for his medical treatment at New Delhi., The medical expenses incurred for the treatment at Bombay was dis- allowed. While disallowing such medical expenses, the learned Tribunal has observed:- .".......as regards the expenditure which is stated to have been incurred at Beach Candy hospital, Bombay, I am of the view mat for two reason it would not be just and reasonable to allow the said expenditure. The first reason is that New Delhi being the capital of India fame and repute and one of these institutions is All India Institute of Medical Sciences. This being so, it can reasonably be inferred that the petitioner could have consulted these institutions for further treatment before flying to Bombay. Evidently, the evidence on record does not show that the pettioner had obtained opinion from All India Institute of Medical Sciences. New Delhi to the effect that his treatment in respect of the injury, in question, was not possible in New Delhi. In the absence of such opinion, it is difficult to allow the expenditure in question, to the petitioner, the second reason is that no doctor from Beach Candy Hospital has been examined by the petitioner in order to prove that he had actually been under treatment in that hospital and had spent the amount in question. Therefore the amount of Rs. 41,000/- is disallowed......" 13. Both the reasons advanced by the learned Tribunal in dis-allowing the medical expenses incurred at Bombay cannot be upheld. There is no requirement under the law that the claimant before flying to Bombay for medical treatment was required to consult the medical institutions located in New Delhi. Even though all India fame medical institutions are located in New Delhi, the claimant was at liberty to obtain the medical treatment at any place and from a doctor of his choice since it is a question of faith in a particular institution and /or in a particular doctor. 14. The claimant, while appearing as PW 2 categorically stated that he remained under treatment at Beach Candy Hospital, Bombay. He has also given the details of the expenses incurred by him towards the medical treatment etc. at Bombay. 14. The claimant, while appearing as PW 2 categorically stated that he remained under treatment at Beach Candy Hospital, Bombay. He has also given the details of the expenses incurred by him towards the medical treatment etc. at Bombay. The claimant was never cross-examined on this aspect of the case by the driver, owner and the insurer of the truck. Therefore, under the law, it can be safely presumed that the driver, owner and insurer have admitted; that the claimant remained under treatment at Beach Candy Hospital, Bon bay. The learned Tribunal, therefore, has erred in dis- allowing such expenditure on the ground that no doctor from the said Hospital was examined by the claimant to prove that he infect remained under treatment there. 15. Yet another error committed by the learned Tribunal is with regard to the allowance of compensation of Rs. 40,000/- on account of loss of future earnings and amenities etc. In awarding such amount, the learned Trirbunal appears to have been influenced by the fact that the claimant has suffered disability due to shortening of right leg. 16. It may be stated at the very outset that there is nothing on the record \ to show that the claimant has suffered any permanent disability. PW 6. Dr. P.S. Maini, Orthopedic Surgeon, who treated the claimant at Sir Ganga ram Hospital, New Delhi, has deposed on 18.3.1987, in the following terms: "At present his disability is about 40%. At present the right lower Lab is short by 1/2 inch." 17. There is nothing in the statement of PW 6 that the disability would remain throughout the life of the claimant and if so, to what extent. Neither, there is anything to show that there would be no improvement in the sheltering of the right lower limb. Admittedly, the claimant after having obtained treatment from PW 6, remained under treatment at Bombay. Nothing has come on the record to show the result of such treatment. In the absence of any evidence to the contrary, it can be safely presumed that the disability was only of a temporary nature, which has disappeared with the passage of time due to treatment. Therefore, it cannot be said that there could have been loss of future income and amenities for which the claimant was required to be compensated. 18. In the absence of any evidence to the contrary, it can be safely presumed that the disability was only of a temporary nature, which has disappeared with the passage of time due to treatment. Therefore, it cannot be said that there could have been loss of future income and amenities for which the claimant was required to be compensated. 18. Insofar as compensation for pain and sufferings is concerned, we are satisfied that just and equitable compensation therefor stands allowed in favour of die claimant. 19. Though, the learned Tribunal has erred in awarding the compensation under the heads medical expenses and loss of future earnings and amenities etc. the disallowance of a part of medical expenses stands neutralised by the wrong allowance of compensation under the head loss of future earnings and amenities etc. In other words, the amount of compensation awarded in its totality is just and reasonable and no interference is called for in the total quantum of compensation awarded. 20. Resultantly, both the appeal as well as the cross-objections are dismissed, leaving the parties to bear their own costs.