Anand Kumar and Another vs Subhash Chand and Anotheretc. etc

Bhawani Singh, J.—Both these appeals (F.A.O. No. 28. of 1982 Anand Kumar and Anr. v. Subhash Chand and Anr. and F.A.O. No. 44 of 1982, the Oriental Fire and General Insurance Company Ltd. v. Subhash Chand and Ors.) are being disposed of by a common judgment since common questions of law and facts are involved in them.

These appeals have been preferred by the Appellants against the award of the Motor Accident Claims Tribunal, Shimla in M.A.C. No. 15-12 of 1987 decided on 5-12-1981 whereby an award to the extent of Rs. 59,000/- has been made in favor of the claimant with costs and interest at the rate of 6 % per annum from the date of the award till payment.

The facts, in brief are that on 21-8-1976 while the claimant, carrying a small bundle of fire-wood on his head, had almost crossed the road and was about to enter the pedestrian path by the side of the road, scooter No. HPS-1977 driven by Respondent No. 1, owned by Respondent No. 2 and insured with Respondent No. 3, struck against the claimant with the result that the claimant fell down on the road and sustained a number of injuries on his person. The offending vehicle stopped only after it struck with the drain on the other edge of the load. The claimant-was removed to the hospital in an unconscious condition and it was detected that he had sustained double compound fracture of right leg in this accident. The claimant (14) was studying in sixth class in Middle School, Boileauganj and on account of prolonged medical treatment and state of his health, he had to leave studies and entirely fell to the care of his parents. It is alleged that the accident was purely on account of the rash and negligent driving of Respondent No. 1 and a claim for Rs. 70,000/- was preferred before the Tribunal. The Tribunal framed a number of issues but only two issues, namely, (1) whether the Petitioner was injured because of the rash and negligent driving of the vehicle by driver Anand Kumar, Respondent No. 1 and (2) to what amount of compensation, if any, the Petitioner is entitled to recover and from whom? Survived ultimately in the matter and both were decided in favor of the claimant.

Sohan Lal (P.W. 1) is the father of the claimant. He states that the accident took place on 21-8-1976 and his son, the claimant, was run over by a scooter which was being driven by Respondent No. 1. The claimant was treated at Ripon and Snowdon hospitals, Shimla, and he remained under treatment for six months as an indoor patient and thereafter also he was under treatment while living with him. He also was admitted in P.G.I. Chandigarh where he remained under treatment for about a year but he was not cured and he has spent about Rs. 9,000/- for his treatment. He has given account of transport expenses as well. He raised loan from the office for the treatment of his son and because of the accident, the claimant had to leave the school although he is very anxious to continue studies but he cannot be sent in such a condition and he intended to educate his son till graduation.

Mrs. Usha Thakur (P.W. 2) states that the claimant was a student of Class 6th in her school and his date of birth was 5-6-1965 and he was a mediocre student. He did not attend the school after August 1976 and he was a regular student.

Het Ram (P.W. 3) states that he was standing in front of the Halwa shop near the Victory Tunnel. The claimant was having a load of firewood on his head. A scooter driven by the Respondent Anand Kumar came and dashed against the Petitioner when he had almost crossed the road and was one foot away from the railing of the road, many people collected there. The claimant was removed to the hospital in an injured condition in a car. He also accompanied the claimant to Ripon Hospital where he was admitted. The claimant sustained injuries in his right leg and head.

Chaman Lal (P.W. 4) reached the spot immediately after the accident. He stopped his car and took the claimant to the hospital along with Het Ram (P.W. 3).

Dr. Shashi Kumar (P.W. 5) examined the claimant in Ripon Hospital on 21-8-1976 and he states that he found as many as six injuries on his person. X-Ray for injury No. 5 revealed that the claimant had sustained communized fracture of the right tibia and fibula. The claimant was referred to Snow don hospital for want of orthopedic specialist in Ripon hospital at that time. This doctor examined the. claimant again in the Court and stated that the right leg of claimant was still weaker than the left one and there was a scar over the middle of the right leg over the interior surface and also regimented are as over the interior surface of the right leg.

Dr. Mrs. Suninda Mitra (P.W. 8) Lecturer in Plastic Surgery at P.G.I. Chandigarh examined the Petitioner on 15-10-1977 but for want of accommodation the claimant could be admitted on 21-1-1978 as an indoor patient till 13-2-1978 when he was discharged. According to her, there was raw area 7"x4" over the right anterior-lateral aspect of right leg below the knee which was extending over the anterior aspect of the tibia extending laterally up to the head fibula. There was also Anr. raw area over the dorsum of foot over the middle three metatarsal bones. The claimant had also lost movement of ankle joint and great to and there was also politely nerve paralysis and X-Ray revealed healing fracture with evidence of chronic ostemolitis. She further deposed that the raw area was treated and grafting of skin was also done. At the time of the discharge, the wound had healed but could collapse because of the underlined bone infection. This infection could reappear as it lingers on for years. She further states that on 15-11-1979 the claimant was again examined and it was found that he had fully cured. He was still having shortening of right leg below knee by 2.5cm and there was evidence of nerve paralysis and he was having anesthesia over sole of right foot. The chronic osteomylitis which was detected by X-Ray in December, 1978, was still present and had not healed. She proved medical certificates Ex. P-2 dated 15-11-1979 issued by her. Finally she says that the leg of the Petitioner cannot be fully cured and it was more or less a permanent disability which according to her was 30% and the Petitioner was unable to walk without support.

Priti Lal (P.W. 9) states that he inspected the scooter and found it to be in perfect running condition. Its brakes were in order and because of the accident its front mud guard v/as dented and head-light ring broken. It is further stated that the front leg sheet was also dented. The scooter was lying on the left side of the road as it comes from Kalka.

Raj Mai (P.W.10) has investigated this case and he states that when he visited the spot the scooter was lying there. The scooter hit the claimant who was injured and the scooter fell at a distance of thirty feet from the place where it hit the claimant. The road at the place of accident was 18'' wide. The scooter hit the claimant on the right side of the road if one comes from Kalka. The claimant was removed to the hospital and Respondent No. 1 was with the scooter at the spot.

Dr. V.P. Lakhanpal (P.W.12) examined the claimant who was admitted in Snow don Hospital on 28-10-1976 as an indoor patient. He states that both the bones of the right leg (Tibia and Fibula) were fractured. The fracture was compound and the claimant was admitted again on 28-10-1976. The wound was infected. The claimant remained in the hospital up to 5-11-1976 and he issued Certificate Ex-P-5 and the disability is 40 to 45%. On examination of the claimant in the Court during the course of his statements, he found that the right leg of the claimant was just like an artificial stump because there was no sensation and no movement of the ankle and the toe joints. He apprehended development of tropic laceration which may result in the amputation of the limb at a later stage. The claimant had developed gangrene and phylogenic due to the injuries. His bone was also infected and the eradication of the same was difficult and the cause of the infection was the compound injuries sustained by him.

Subash Chand the claimant appeared as P.W. 13. He narrates that while he was crossing the road with a bundle of fire wood the scooter came from the side of the Victory tunnel. It was being driven rashly by Respondent Anand Kumar. The Respondent blew no horn and he had just crossed the road and was about to enter the pedestrian path by the side of the road the scooter collided against him and injured his right leg. It caused its fracture. The scooter also fell down at a little distance and Het Ram and some other person removed him to the hospital. He was sent to Snow don hospital also where he remained an indoor patient for about three months. There was pus in the wound and about fifteen hundred rupees had been spent during this period for his treatment. After discharge, he was again admitted and remained as an indoor patient this time also for about 1-1/2 months and that time he spent about Rs. 500/-. After second discharge from the hospital, he was admitted in the Military hospital, Shimla, for about five months. There from he used to be brought to the Snow don hospital also. He was admitted in P.G.I. Chandigarh and remained there as an indoor patient for two months and he was operated there for the second time. He must have spent about Rs. 3,000/-for treatment. He had been advised amputation of the right leg as the same could not be cured without it. He was under treatment at P.G.I, even now where he goes quite often with someone as he cannot go alone. He had to go there in a Taxi and he had to pay Rs. 1,000/- for two trips. On the day of the accident, he was a student of sixth class and he had to discontinue his studies because of the accident otherwise he was to study up to graduation and now he is not in a position to continue his studies. His right leg has shortened in length because of the Injuries and he feels no sensation in the injured leg. He cannot walk without support even for twenty minutes continuously. He was a good sportsman and could shine. He could get gainful employment after studying up to graduation. He has no marriage prospects. For the expenditure, he had received receipts. He denied the suggestion that he started crossing the road all of a sudden as a result of which he was struck by the scooter. The scooter was being driven at a very high speed although the actual speed he could not ascertain.

On the other hand, Anand Kumar (R.W.1) states that he was driving the scooter at a low speed because of the traffic jam and at the place of accident a boy carrying a bundle of wood abruptly crossed the road from the side of Narain Coal Company towards the pedestrian path. The boy entangled in the railings and sustained injuries. He was stopped near the winter field crossing by a constable on the ground that the said boy had sustained injuries due to the accident with his scooter as several people had assembled at the place where the boy had sustained injuries. The said boy did not even touch his scooter. The fuel wood which they said boy was carrying was heavy and the bundle was long. He had the driving license (R. W-l/A) and on the day of the accident, he had a learner''s license. He denies the suggestion that he was driving the scooter rashly and negligently or that his scooter hit the claimant and caused him injuries. He admit that 2 or 4 persons had taken the claimant to the hospital.

Sushil Kumar (R.W.2) states that the boy carrying a bundle of wood ran towards the railing near the pedestrian path got entangled with the said railing and fell down thereby sustaining injuries. There was no fault of the scooter driver and the Police arrived at the scene of occurrence.

Parveen Kumar (R.W.3) also supports Sushil Kumar (R.W. 2) and their versions are almost similar.

A perusal of the evidence, aforesaid, clearly establishes that the claimant has been able to prove the rash and negligent driving of the scooter by the Respondent. It is clear that the scooter was coming at a fast speed and the claimant had just crossed the road and was going to step into the pedestrian path when he was hit by the scooter causing serious damages and injuries to his person as proved by the claimant himself, eye witnesses and the medical evidence on the record. The act of the Respondent-driver in driving the scooter at a fast speed is further clear from the fact that after the accident it fell at a distance of thirty feet and that too on the left side in a drain. It went to the right side and after hitting the claimant came over to the left side. This all speaks volumes about the speed and establishes the negligent manner in which the scooter was being 4 driven. Although an effort has been made by the Respondent driver to show that he was driving the scooter at a slow speed and he was not responsible for the accident in question; rather the fault was of the claimant who started crossing the road abruptly, but he has not been successful.

Now coming to the injuries, there is no dispute on the aspect of the seriousness of the injuries on the person of the claimant. There is also no doubt as to the sufferings the claimant underwent after this accident. He moved from hospital to hospital and was operated upon on two occasions besides other treatment he had to undergo at the hands of the medical experts who have categorically stated about the seriousness of the injuries and the fact that the leg though existing is just like a stump without any feeling and motion. Therefore, it is as if the same does not exist for any purpose. It is of no benefit to the claimant and can be removed at any stage since it has been medically opined that it can develop infection and serious disease at any time.

The claimant was a student of sixth class. He was a mediocre student as stated by his teacher. It is common knowledge that mediocre prove most successful in life as their progress in life is consistent. So, as stated by the claimant he could at least do his graduation and seek some gainful employment,! HL to say the least, as a Clerk, thus earning at least Rs. 400/-per Month. He had every potential to earn promotion in life and Pother consequential benefits. It can, therefore, safely be said that the Petitioner would have earned Rs. 4,800/- annually which can be multiplied by fifteen years purchase bringing the total amount to Rs. 72,000/-. However, as the claimant has claimed only a sum of Rs. 70,000/- his entitlement is confined to Rs. 70,000/-.

The Tribunal has awarded Rs. 10,000/- on account of v. pain and suffering undergone by the Petitioner. This amount /is quite reasonable and does not require modification. Although the Petitioner appears to have spent on medical expenses and transport expenses during the course of his treatment from place to place, but there is no clear and cogent evidence on this aspect. Therefore, the same is disallowed.

The Tribunal has deducted 10 % out of the total awarded amount of Rs, 54,000/- on the principle of lump sum payment which cannot be reasonably and legally sustained in view of the judgment of this Court in Milap Kaur and Ors. v. Secretary Himachal Pradesh Public Works Department {Irrigation) and Anr. 1988 ACJ 372. On this aspect, the award of the v. Motor Accident Claims Tribunal is modified.

A perusal of the claim petition shows that the Petitioner has claimed only Rs. 70,000/- under Item 20 of the claim petition. Therefore, he is entitled to this amount only. The claimant is also entitled to interest at the rate of 12% per annum on the difference between the amount awarded by the Tribunal and this Court from the date of the application till the date of payment.

The Cross-Objections filed by the claimant are disposed of in light of the decision of the main matter hereinabove.

The Oriental Fire and General Insurance Company has filed an application Under Order 41 Rule 27 CPC for leading 4 additional evidence and for permission to amend the written statement Under Order 6 Rule 17 CPC read with Section 151 through Shri Rajiv Mehta and it has been contended that the Respondent driver had no driving license and a fraud had been played not only on the Court but also on the Insurer. In these circumstances it is urged that permission to amend the written statement and incorporating this plea therein and also to prove that the Respondent driver had no driving license at the time of the accident may be allowed in the interest of justice. This application has been opposed by the claimant.

A perusal of the statement of Anand Kumar (R.W.1) shows that he has specifically stated that he had a learner''s license on that particular occasion. Further a copy of the same. (Ex. R. W-l/A) also establishes this assertion of the Respondent driver and falsifies the assertion of the Insurer. However; alternatively looking at the plea from Anr. angle this application cannot be allowed at this late stage. Further it cannot be ''allowed to enable the Insurer to set up a new defense and to fill up gaps in its initial defense. The Insurer had enough time to meet all such pleas at the trial before the Tribunal and having failed to avail the right at that stage it cannot be permitted to I do so at the appellate stage. This aspect of the matter is covered by the decision of the Supreme Court in Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and Mohamed Ali and Co.,

In these circumstances this prayer of the Insurer is rejected. Counsel fee Rs. 1,000/-.