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2001 DIGILAW 616 (PNJ)

Parkash v. Bhagwan Singh

2001-05-29

R.L.ANAND

body2001
JudgmentJudgment R. L. Anand, J. 1. Parkash, son of Gargar alias Jai Chand has filed the present appeal and it has been directed against the award dated 9.12.1993 passed by Motor accidents Claims Tribunal, Rohtak which awarded a sum of Rs.48,000 by way of compensation to the appellant besides interest at the rate of 12 per cent per annum from the date of the filing of the claim petition till payment. 2. The brief facts of the case are that three claim petitions arising from the same accident were filed by the present appellant, Dharender Kumar alias Dhaminder and Satbir Singh against the driver, owner and the insurance company by making allegations that on 21.12.1991 in the motor vehicular accident between three-wheeler tempo (unnumbered) and four-wheeler no. HR 19-0975 near village Jahazgarh in the area of Police Station Beri, District rohtak, appellant Parkash and his companions, who were the occupants of three-wheeler sustained injuries. The appellant claimed Rs.4,00,000 by way of damages from the owner, driver and the insurance company. As per allegations, on 21.12.91 at about 1.30 p. m. the appellant and his companions boarded the ill-fated three-wheeler from Beri for going to village chhuchkwas and the three-wheeler was being driven by its driver at a normal speed and on the correct side of the road. When it reached one kilometre ahead of village jahazgarh, the offending four-wheeler, i. e. Tata 407 bearing registration No. HR 19-0975 came from the opposite side driven in a rash and negligent manner and struck against the three-wheeler coming on the wrong side. The three-wheeler turned turtle and all the occupants received injuries. The offending vehicle was being driven by bhagwan Singh alias Bhana Ram. 3. The claim petition of the present appellant was contested by the respondent nos.1 and 2 and they filed a joint written statement. Respondent No.3 also filed a separate written statement. The factum of accident was not disputed but the negligence on the part of respondent driver was denied. It was alleged that the accident, in fact, had taken place due to rash and negligent driving of driver of three-wheeler, namely, Surinder Singh, s/o Bhim Singh and resident of village Baghpur, who was driving the same without any valid driving licence, registration number and the route permit. It was alleged that the accident, in fact, had taken place due to rash and negligent driving of driver of three-wheeler, namely, Surinder Singh, s/o Bhim Singh and resident of village Baghpur, who was driving the same without any valid driving licence, registration number and the route permit. He came from the opposite side in a rash and negligent manner and hit the four-wheeler by coming on to the wrong side. The claim petition was also contested on the ground of non-joinder of Surinder singh, son of Bhim Singh. 4. From the pleadings of the parties, following issues were framed by the Tribunal: " (1) Whether accident dated 21.12.91 resulting in injuries to Parkash, Satbir singh and Dharender Kumar was caused due to rash and negligent driving of the four-wheeler No. HR 19-0975 driven by respondent No.1? (2) Whether claimant Satbir Singh is entitled to any compensation on account of injuries suffered by him and if so to what amount and from whom? (3) Whether claimant Parkash is entitled to any compensation on account of injuries suffered by him and if so to what amount and from whom? (4) Whether claimant Dharender Kumar is entitled to any compensation for the injuries suffered by him and, if so, to what amount and from whom? (5) Whether the offending vehicle was being driven without a valid driving licence? (6) Whether the petition is bad for nonjoinder of necessary parties? (7) Relief. " 5. The parties have led oral as well as documentary evidence in support of their respective cases and on conclusion of the proceedings issue No.1 was decided in favour of the claimants. Under issue No.2, Tribunal awarded a sum of Rs.50,000 by way of compensation to Satbir Singh, non-appellant. Under issue No.3 the Tribunal awarded a sum of Rs.48,000 to the present appellant. Rs.5,000 were also awarded to the non-appellant Dharender kumar under issue No.4. Issue Nos.5 and 6 were decided against the respondents. The claim petition of the present appellant was partly allowed and he was awarded a sum of Rs.48,000 along with interest at the rate of 12 per cent per annum. The appellant is not satisfied with the award of the Tribunal, hence the present appeal. 6. I have heard the learned counsel for the parties and with their assistance have also gone through the records of the case. 7. The appellant is not satisfied with the award of the Tribunal, hence the present appeal. 6. I have heard the learned counsel for the parties and with their assistance have also gone through the records of the case. 7. Before I discuss the submission raised by the learned counsel for the appellant, I may point out here that the Tribunal gave the following reasons in order to calculate the compensation of Rs.48,000 to the present appellant and the said reasons have been given in paras 24 to 31 of the impugned award: " (24) PW 1 Dr. S. K. Moda, Head of the department of Orthopaedics, Medical college and Hospital, Rohtak, deposed that patient Parkash was admitted in the hospital on 21.12.1991, who was suffering from compound fracture of right femur with lacerated wound, left ankle and foot. The patient was treated by open reduction and external fixation and was discharged on 16/17.3.1992. He was again admitted, per O. P. D. card, exh. P-4, for about four days. In this way, he remained admitted for 89 days in the hospital and he is still under treatment. Exhs. P-2 to P-4 are the discharge cards which show that the claimant had remained as outdoor patient till May, 1993 and is still undergoing treatment as per statement of the doctor. The doctor further deposed that the patient might require another operation and his disability might be roughly 15 to 20 per cent with no significant shortening of the injured limb. Claimant was advised crutches for support and he was not able to do hard manual work. (25) Claimant Parkash appeared before the Medical Board of Orthopaedics surgeons of Medical College and Hospital, Rohtak and got issued a disability certificate, Exh. P-50, according to which he was having discharging sinus right thigh and limitation of movement of right knee beyond 90 degrees and the disability was about 35 per cent. This certificate was also signed by Dr. S. K. Moda, who appeared into the witness box and deposed that the patient was having 15 to 20 per cent disability. There was no explanation on the file as to how there was such a gap between the opinion of the doctor. However, the fact remains that the claimant suffered disability, if not 35 per cent it might be slightly less. (26) The claimant Parkash produced the receipts of medicines and other expenses, Exhs. There was no explanation on the file as to how there was such a gap between the opinion of the doctor. However, the fact remains that the claimant suffered disability, if not 35 per cent it might be slightly less. (26) The claimant Parkash produced the receipts of medicines and other expenses, Exhs. P-11 to P-31 and P-51 amounting to Rs.4,837.93. The claimant must not have maintained all the vouchers. He remained admitted in the hospital for 89 days, took special diet and underwent long treatment. Another operation might be needed. In such circumstances, I assess a sum of Rs.20,000 to be just and reasonable for the past, present and future treatment, including the special diet and transportation charges. (27) The claimant underwent pain and suffering, loss of enjoyment of life and amenities and he remained admitted for such a long time. He cannot walk without crutches. He suffered a compound fracture of right femur. Operations were performed on the seat of injuries. Therefore, under the head of pain and suffering, I consider a sum of Rs.25,000 to be just and proper. (28) The claimant suffered disability around 30 to 35 per cent. On account of disability, I assess a sum of Rs.33,000. (29) The claimant could not attend to his duties for about 11/2 years. He is still under treatment. He is a labourer. The minimum wages of a labourer are not less than Rs.1,000 p. m. Therefore, the loss of income is taken at Rs.18,000. (30) In view of the above discussion, claimant Parkash is held entitled to compensation of Rs.96,000 as follows: (i) On account of treatment (past, present and future), transport and special diet Rs.20,000 (ii) On account of pain and suffering, loss of enjoyment of life and amenities Rs.25,000 (iii) On account of disability Rs.33,000 (iv) On account of loss of income Rs.18,000 Total: Rs.96,000 (31) In view of my discussion on issue no.1 above, claimant Parkash would be entitled to recover only 50 per cent of the amount, i. e. , Rs.48,000 from the respondents jointly and severally. This issue is decided accordingly in favour of the claimant. This issue is decided accordingly in favour of the claimant. " 8 The second aspect which I would like to highlight is that the matter was referred to Lok Adalat for compromise and the Presiding Officer of the Lok Adalat made recommendation that there is a scope of enhancement of compensation which should be enhanced from Rs.48,000 to rs.75,000. But the respondent insurance company was not agreeable to the proposal of enhancement. 9. The learned counsel appearing on behalf of the appellant submitted that the tribunal was not justified in imposing a cut of 50 per cent in the compensation which is initially assessed at Rs.96,000. He submitted that the appellant was a passenger of the three-wheeler. The driver of three-wheeler, namely, Surinder Kumar was not at fault. The accident had been caused on account of the negligence of bhagwan Singh alias Bhana Ram, who came on the wrong side of the road and thus the appellant is entitled to the entire compensation of Rs.96,000 which was assessed by the Tribunal at the first instance. There is a merit in the contention raised by learned counsel for the appellant. The Tribunal has imposed a cut of 50 per cent mainly on the ground that since there was a head-on collision between both the vehicles, therefore, both the vehicles are equally to be blamed for rash and negligent driving. This opinion formulated by the tribunal, in my opinion, is not correct. Even if it is assumed for the sake of argument that the three-wheeler was overloaded that per se is no ground to hold that the driver of the three-wheeler was negligent or that he was driving the vehicle in a rash and negligent manner. We all know that three-wheeler is a slow moving vehicle as compared to a four-wheeler. Even if it is assumed for the sake of argument that Surinder Singh was taking more passengers than the sanctioned capacity of the threewheeler, in such a situation the speed of the vehicle would be slow on account of the weight of the passengers. The direct evidence is that the driver of the fourwheeler, namely, Bhagwan Singh was driving the vehicle in a rash and negligent manner and went on the wrong side of the road, in such a situation, it was not justified on the part of the Tribunal to impose a cut of 50 per cent. The direct evidence is that the driver of the fourwheeler, namely, Bhagwan Singh was driving the vehicle in a rash and negligent manner and went on the wrong side of the road, in such a situation, it was not justified on the part of the Tribunal to impose a cut of 50 per cent. Nevertheless, the driver surinder Singh has committed violation of the law when he had allowed more persons to sit in the Tempo. Moreover, Surinder Singh has not been examined by the respondents. Therefore, I am inclined to award a sum of Rs.72,000 only to the appellant Parkash besides interest at the rate of 12 per cent per annum from the date of the filing of the claim petition till payment. This amount I have also awarded by keeping in view the opinion formulated by the Lok Adalat. Resultantly, the present appeal is partly allowed and the amount of compensation stands enhanced to Rs.72,000 which shall be paid by the respondents, jointly and severally along with interest at the rate of 12 per cent per annum from the date of the filing of the claim petition till payment. The compensation already paid by the respondents shall stand adjusted. The enhanced compensation shall be paid to the appellant within three months from the receipt of the copy of the order. There shall be no order as to costs. Petition partly allowed.