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Rajasthan High Court · body

2000 DIGILAW 647 (RAJ)

Executive Engineer v. Surendra Singh

2000-05-19

A.K.SINGH

body2000
Judgment Amaresh Ku. Singh, J.- In Claim No. MAC Case 73/94 filed by Surendra Singh, who is respondent in this appeal, the Judge, Motor Accident Claims Tribunal, Jalore, by Judgment dated 12.1996 awarded compensation of Rs. 64,846/-with interest at the rate of 12% per annum from the date of filing of the claim petition. Being aggrieved by the award, the present appeal has been filed by the appellants. (2). The facts of the case may be summarised as below: (3). According to the averments made in the claim petition, on 20.4.1993, at about 8.15 p.m., the claimant Surendra Singh and his brother Virendra Singh were going on the right side of the road on the ‘kutcha’ path towards the house of their uncle Bhanwar Singh. When both of them, reached near the house of Bhanwar Singh, one jeep No. RJ 14/1846 was coming from the front side. The jeep was driven at an excessive speed. The jeep hit Surendra Singh and, as a result, Surendra Singh received simple and grievous injuries and became unconscious. After the incident, Virendra Singh took Surendra Singh to Aahore Hospital but the case was referred to the General Hospital, Jalore. The statement of Virendra Singh was recorded and, on the basis of his statement, a criminal case was registered at the Police Station, Nausara and, after investigation, charge-sheet under Section 173 of the Criminal Procedure Code was filed against Kishan Lal, the driver of the jeep, under Sections 279, 337 and 338 of the Indian Penal Code. The jeep which was involved in the accident belonged to the Public Works Department of the State of Rajasthan. A sum of Rs. 1,90,000/-was claimed in the claim petition. Surendra Singh was a minor on the date of the accident and was a student of class III. It was alleged that he was earning Rs. 10/-per day, by distributing cow-milk at the hotels. It was also stated in the claim petition that for about 10 days, Surendra Singh suffered from loss of memory on account of the injuries received on his head and he suffered much pain on account of the injuries and he was also given treatment at Jodhpur at Kamala Nehru Hospital and a house had been taken on rent for three months. Following sums were claimed as compensation: 1. Loss of earning at the rate of Rs. 10/-per day 3,000/- 2. Following sums were claimed as compensation: 1. Loss of earning at the rate of Rs. 10/-per day 3,000/- 2. Pain and suffering 10,000/- 3. Amount spent on travelling 3,000/- 4. Rent of house which had been taken on rent at Jodhpur 3,000/- 5. Wages paid to the persons who were employed to look after the cows 1,000/- 6. Amount spent on treatment 20,000/- 7. Loss occasioned by absence in school 50,000/- 8. Furture losses 50,000/- 9. Mental agony 50,000/- Total 1,90,000/-(4). In reply filed by Kishan Lal, Driver, it was stated that on 20.4.1993 at about 8.15 p.m., when he was driving the jeep of the Public Works Department, a boy collided with the jeep no. RJ 14/1816. The jeep was being driven slowly and the boy, collided with the jeep emerging from the darkness all of a sudden. It was further stated in the reply filed by Kishan Lal that the boy was not earning anything and he did not spend any money on treatment nor he suffered any pain. (5). In the written statement filed on behalf of the State Government and the Public Works Department, the allegations made in the claim petition were denied and it was alleged that the accident took place due to the fault of the boy and the driver was not at fault. (6). Three issues were framed. The first issue was regarding the question whether the jeep was being driven rashly and negligently. The second issue was regarding the quantum of compensation and the third issue was about relief Bheru Singh (A.W. 1), Surendra Singh (A.W. 2) and Virendra Singh (A.W. 3) were examined on behalf of the claimant. As many as -12 documents were produced in evidence on behalf of the claimant. Kishan Lal (N.A.W. 1) and Banshi Lal Gandhi (N.A.W. 2) were examined on behalf of the non-petitioners. No documentary evidence was produced by the non-petitioners. (7). The learned Judge, Motor Accidents Claims Tribunal, after considering the evidence of both the parties, decided issue no. 1 in favour of the claimant and held that the jeep was being driven in rash and negligent manner. Issue no.2 was also decided in favour of the claimant and it was held that the claimant was entitled to get a compensation to the tune of Rs. 1 in favour of the claimant and held that the jeep was being driven in rash and negligent manner. Issue no.2 was also decided in favour of the claimant and it was held that the claimant was entitled to get a compensation to the tune of Rs. 64,846/-and interest at the rate of 12% per annum with effect from the date of filing of the claim petition. In view of the findings on issues no. 1 and 2, impugned award was given. (8). The learned Counsel for the appellants has submitted that the learned Judge, Motor Accident Claims Tribunal has committed a serious mistake in deciding issues no. 1 and 2 in favour of the claimant and, therefore, the award deserves to be set aside. It is further submitted by the learned Counsel for the appellant’s that there is no evidence to prove that the driver was driving the jeep in rash and negligent manner; that the jeep had been slowed near the speed-braker and as soon as the speed-braker was crossed by the jeep, the claimant suddenly tried to cross the road and he collided with the jeep and this version has been given by the driver Kishan Lal as well as Banshi Lal who was sitting in the jeep at the time of the alleged accident. It is further submitted by him that the driver was not at fault and he promptly applied the brakes and since the child had emerged from the darkness all of a sudden, the responsibility of the accident was that of the child and not by the driver. Regarding quantum of compensation, the learned Counsel for the appellants has submitted that the simple and grievous injuries received by the claimant, were fully cured and no certificate to show permanent disability was produced and the award of Rs. 50,000/-on account of pain and suffering, is not justified. (9). The learned Counsel for the respondent has supported the award given by the learned Judge, Motor Accident Claims Tribunal and has prayed for the dismissal of this appeal. (10). I have carefully considered the arguments advanced by the learned Counsels for both the parties and the impugned Judgment of the learned Judge, Motor Accident Claims Tribunal, Jalore. (11). So far as finding on issue no. 1 is concerned, it is not disputed that the claimant had collided with the jeep belonging to the appellant. (10). I have carefully considered the arguments advanced by the learned Counsels for both the parties and the impugned Judgment of the learned Judge, Motor Accident Claims Tribunal, Jalore. (11). So far as finding on issue no. 1 is concerned, it is not disputed that the claimant had collided with the jeep belonging to the appellant. It is also not disputed that Kishan Lal was driving the jeep at the time of the alleged accident. Surendra Singh (A.W. 2), is the injured, He has stated on oath that on 20.4.1993, at about 7 to 8 p.m., he was going towards the house of his uncle. He was travelling on the ‘kutcha’ path and, at that time, the accident occurred. The jeep which collided with him was coming from the side of Jodhpur towards Jalore and was being driven at fast speed. In the cross-examination, he has admitted that at the time of accident, darkness has sat in but he categorically denied that the accident took place on the metalled-road. He further stated that soon after the incident, the driver ran away and the Executive Engineer and his wife were travelling in the jeep but the Executive Engineer did not take him to Aahore. It is further stated by Surendra Singh (A.W. 2) that the jeep had no lights. He denied the suggestions that the incident took place when he was trying to cross the road. I have carefully considered the evidence of Surendra Singh (A.W.2). His statement could not be shaken in the cross-examination. The suggestions made to him were denied by him. His statement clearly shows that when he was hit by the jeep, he was not travelling on the metalled-road but was travelling on the ‘kutcha’ portion of the road and the darkness has sat in but the lights of the jeep were not on. (12). Virendra Singh (A.W. 3) is another eye-witness of the accident. He supported the statement of Surendra Singh (A.W. 2) by stating that he was accompanying Surendra Singh at the time of accident and at the time the jeep hits Surendra Singh the number of the jeep was RJ 14/1846 and the jeep was going towards Jalore from Jodhpur and was being driven by Kishan Lal. It is further stated by him that the accident took place after he had crossed the road. It is further stated by him that the accident took place after he had crossed the road. It is also stated by him that he took his brother to Aahore and from Aahore to Jalore and, on the basis of his statement, a case was registered. He has proved Ex. P. 35. Regarding the speed of the jeep, he has stated that the jeep was moving at a fast speed. In cross-examination, Virendra Singh (A.W.3) has admitted that he had seen the lights of the jeep, when he was near the speed-braker but he categorically denied that the accident took place on account of the negligence of his brother Surendra Singh. (13). Though there is a contradiction between the statement of Surendra Singh (A.W. 2) and Virendra Singh (A.W. 3) inas much as Surendra Singh (A.W. 2) says that the lights of the jeep were not on but the statement of Virendra Singh (A.W. 3) was that lights of the jeep were on, there does not appear to be any other inconsistency between the statements of Surendra Singh (A.W. 2) and Virendra Singh (A.W. 3). Their statement is to the effect that accident took place when they were travelling on ‘kutcha’ road and not on the metalled road. Copy of the site-plan prepared by the police is Ex.P.38. It shows that accident had taken place on the right side of the road which goes from Jalore to Jodhpur and blood as well as pieces of glass were found at the spot. There were also traces of the rubbing of tires against the road. The inspection note Ex.P.39 shows that there were traces of rubbing of the tires, for a distance of 15 ft. and the traces of tires were visible at the time of site inspection and the accident had taken place at the right side of the road (going from Jalore to Jodhpur). Copy of mechanical report of the inspection of jeep No. RJ 14/1846 is Ex.P.40, it shows that the stearing and brakes were in proper order. The lights of the right side of the jeep were damaged and there were signs of impact on the mud-guard of the right side. (14). Copy of mechanical report of the inspection of jeep No. RJ 14/1846 is Ex.P.40, it shows that the stearing and brakes were in proper order. The lights of the right side of the jeep were damaged and there were signs of impact on the mud-guard of the right side. (14). On careful consideration of the site plan Ex.P.38, site inspection note Ex.P.39 and mechanical inspection report Ex.P.40, and the statements of Surendra Singh (A.W. 2) and Virendra Singh (A.W.3) clearly show the following facts: .(1) In site plan Ex.P.38, at place shown by mark no.1 to mark no.2, there was a metalled road 24 ft. wide going from north to south, .(2) On each side of the road, there was vacant space of 50 ft. wide, .(3) The jeep was coming from the side of Jodhpur, .(4) There were traces of blood at the spot as well as broken pieces of glass at the spot which were on the western side of the road, .(5) There were traces of rubbing of the tires on the road at a distance of 15 ft. before the accident took place, and .(6) That Virendra Singh and Surendra Singh both tried to cross the road and when they had crossed the road, they were hit by the right side mud-guard of the jeep. (15). The crucial question is whether the accident look place on account of negligence of the driver Kishan Lal (N.A.W. 1). Kishan Lal (N.A.W. 1) has stated on oath that at about 8 to 8.15 p.m., he was driving the jeep and when he reached near the ‘dhani’ of Bhadrajoon and crossed a speed-braker, a child came from the front side and collided with the jeep and that he was not at fault as the jeep was being driven slowly. It is further, stated by him that the Executive Engineer Shri Banshi Lal was travelling in the jeep at the time of accident. In cross-examination he has stated that speed-braker was 20 ft. away from the place of the accident. It is admitted by him that after he applied the brakes, the jeep moved about 2 ft. to 3 ft. He has denied that the jeep had moved for 15 ft. It is also denied by him that lights of right side of the jeep were damaged. (16). Banshi Lal Gandhi (N.A.W. 2) was travelling in the jeep. It is admitted by him that after he applied the brakes, the jeep moved about 2 ft. to 3 ft. He has denied that the jeep had moved for 15 ft. It is also denied by him that lights of right side of the jeep were damaged. (16). Banshi Lal Gandhi (N.A.W. 2) was travelling in the jeep. He has stated that at the time of the accident, speed of the jeep was 20 to 25 kms. per hour and that the child, all of a sudden, came from the front side and that no body was at fault. In cross-examination he has stated that he did not lodge the report at the police station and the accident took place at the speed-braker. It is further stated by him in the cross-examination that just before the accident, the driver has blown the horn and the light of the right side was damaged. It is denied by him that the jeep was moving at a speed of 80 kms. per hour. (17). The statement of Kishan Lal (N.A.W. 1) and Banshi Lal Gandhi (N.A.W.2) have been carefully considered. There is inconsistency between the statements of Kishan Lal (N.A.W. 1) and Banshi Lal Gandhi (N.A.W.2), in as much as Kishan Lal admits that he could not blow the horn but Banshi Lal says that the driver was continuously blowing the horn of the jeep. Neither Kishan Lal (N.A.W. 1) nor Banshi Lal (N.A.W.2) lodged a First Information Report at the police station about the accident. Though, Banshi Lal (N.A.W. 2) says that he took the injured child to the hospital at Aahore. The traces of rubbing of the tires were found at the site for a distance of 15 ft. before the jeep reached the place of accident. It shows that the driver had applied the brakes in order to stop the vehicle but the vehicle did not stop and hit the child. Since the time of the accident was 8.15 p.m., there must have been some darkness. The lights of the jeep were on as admitted by Virendra Singh (A.W.3). It is common knowledge that if the lights of the vehicle are on, then the entire road becomes visible to the driver at a distance of 15 to 20 ft. The statement of Virendra Singh (A.W. 3) clearly shows that he had crossed the road when the accident took place. It is common knowledge that if the lights of the vehicle are on, then the entire road becomes visible to the driver at a distance of 15 to 20 ft. The statement of Virendra Singh (A.W. 3) clearly shows that he had crossed the road when the accident took place. In the circumstances of the case, it is proper to infer that when Virendra Singh and Surendra Singh, were crossing the road, Kishan Lal (N.A.W. 1) saw them and he applied brakes but the vehicle did not stop in spite of the application of brakes. The fact that the vehicle did not stop in spite of applying the brakes, in the facts and circumstances of this case, suggests that the jeep was being driven at fast speed because if the jeep was slow, there is no reason why the jeep should not have stopped on applying brakes. I, therefore, come to the conclusion that the jeep was driven at a fast speed just before the accident took place and, therefore, the jeep could not be stopped in time. This conclusion is further supported by the admission of Banshi Lal Gandhi (N.A.W. 2) that the driver was continuously blowing the horn which means that the jeep was being driven at fast speed and in order to warn person moving on the road, the driver was blowing the horn continuously. I, therefore, do not find any force in the submission that at the time of accident, the jeep was being driven slowly. (18). The fact that the lights of the jeep were on and the driver must have seen Surendra Singh and Virendra Singh crossing the road and that he was continuously blowing the horn and driving the jeep at fast speed and that the jeep did not stop even after application of the brakes, clearly leads to the conclusion that the accident took place on account of the fault of the jeep driver. The version of the driver that the jeep was being driven slowly and the injured Surendra Singh came from the front side of the jeep all of a sudden, cannot be believed. (19). For above reasons, I do not find any force in the submission that Kishan Lal (N.A.W.1) was not responsible for the accident. In my opinion, the learned Judge, Motor Accident Claims Tribunal, has committed no mistake by deciding issue no.1 in favour of the respondent-claimant. (19). For above reasons, I do not find any force in the submission that Kishan Lal (N.A.W.1) was not responsible for the accident. In my opinion, the learned Judge, Motor Accident Claims Tribunal, has committed no mistake by deciding issue no.1 in favour of the respondent-claimant. (20). So far as issue No. 2 is concerned, the learned Counsel for the appellants has submitted that award of Rs. 50,000/-for mental agony, is not proper. The learned Judge, Motor Accident Claims Tribunal, has observed in the impugned Judgment that Surendra Singh must have suffered pain on account of fracture in his leg and, therefore, award of Rs. 60,000/-for pain and injuries is justified. In the claim petition, a sum of Rs. 50,000/-was claimed for long life mental pain and suffering. At page 9 of the claim petition it is stated, that on account of the accident, the injured would be deprived of the opportunity of employment in Army, Police etc. and would also not be able to get a suitable bride and, therefore, he claims a sum of Rs. 50,000/-. Surendra Singh (A.W.2) stated on oath that on account of the accident in question, one of his tooth was broken and he received injuries on his face, head and leg. It is further stated by him that he cannot take part in games and on account of fracture on his leg, he suffers perpetual pains. His statement further shows that he cannot walk properly because a steel-rod has been placed inside his leg. The statement of Surendra Singh (A.W.2) has not been challenged in the cross-examination, as no question has been put to him regarding the pain and suffering which he is experiencing after the accident on account of the injuries received by him. Since the statement of Surendra Singh (A.W. 2) has not been challenged in the cross-examination nor it has been shown to be untrue, it is proper to infer that the statement of Surendra Singh (A.W.2) is correct. The disability which he is suffering after the accident, in the form of pain and lameness, stands proved by his oral statement made on oath. The x-ray report clearly shows that there was evidence of committed fracture of the femur left upper 1/3rd of shaft and fragments were displaced. The disability which he is suffering after the accident, in the form of pain and lameness, stands proved by his oral statement made on oath. The x-ray report clearly shows that there was evidence of committed fracture of the femur left upper 1/3rd of shaft and fragments were displaced. X-ray plates of hip and leg bone show that there was a fracture of the femur and steel-rod had been placed in side the bone. I, therefore, hold that the statement of Surendra Singh (A.W.2) shows that on account of the injury received by him, he is undergoing pain and suffering and that, partial permanent disability on account of lameness had been acquired by him due to accident. A child who is disabled by fracture of femur bone of his leg and is likely to suffer physical pain and suffering on account of the injuries received by him, is liable to be compensated suitably and in the facts and circumstances of the case, keeping in view the possibility that he may have to undergo another operation, for curing his pain and lameness, award of compensation to the extent of Rs. 60,000/-does not appear to be excessive. I do not find any force in the submission made by the learned Counsel for the appellants that the amount of compensation awarded by the learned Judge, Motor Accident Claims Tribunal is excessive. (21). No other point has been stressed. (22). The findings on issues no. 1,2 and 3 are affirmed. (23). This appeal has no merit. It deserves to be dismissed and is hereby dismissed with costs.