Jagat Singh and Others vs Sawal Singh

C.G. Suri, J.—This appeal has been filed against the award of the Motor Accidents Claims Tribunal by the owners, driver and insurance company of the motor vehicle involved in the accident. The Respondent who had sustained injuries in the motor accident has been awarded a sum of Rs. 8950/- as compensation for the injuries sustained by him.

The accident had taken place on 11.9.1963 near village Mansar on Pathankot-Jullundur road. The Respondent was knocked down unconscious by the Appellant''s truck No. PNP-1447. The truck had swerved suddenly and had been over turned at the spot and there could therefore be no dispute with regard to the identity of the motor vehicle involved in the accident. The Respondent was on foot at the time when he was knocked down and was walking on the kacha portion on the left side of the road. The truck was said to have been going at a very fast speed and on seeing the Respondent it swerved suddenly on the wrong side without blowing any horn. The road was at a higher level and the truck went down the kacha slope and over-turned because of the fast speed and the sudden braking. The truck had been over-loaded and had been braked to a stop suddenly. Jagat Singh, the driver of the the truck who kept away from the proceedings in the earliest stages, later appeared in the witness box and came out with the siory that the Respondent was looking after his cow which suddenly came on the road out of the bushes on the sides. Jagat Singh tried to avoid the cow and swerved towards the right. The Respondent was trying to drive the cow away from the road and he came in the way and was knocked down by the left mudguard of the truck. The truck was loaded with logs of wood and because the driver had to swerve suddenly to save the cow and its owner, it went down the kacha slope and over-turned. The driver''s case was that the accident was not the result of any rash or negligent driving on his part.

The Respondent had been removed to the Civil Hospital at Mukerian the same day and had been examined by Dr. Soni, AW1. The Respondent was found to have fractures of three ribs and both the left limbs. He had sustained a number of grievous injuries but he was discharged from the hospital on 27.9.1963. The plaster of paris was removed about six weeks after the accident, According to the doctor, the Respondent had suffered permanent disability of his left arm to the extent of only 10 per cent. The movements of the arm are restricted and the arm can neither be fully extended nor it can be fully flexed. There is a fixed flexion of left elbow joint by 30 per cent and complete flexion is not possible by about 90 degrees. The force of the grip is slightly less in the left hand and there is some limitation of the movement of the left elbow joint. The rotational movements are affected but the disability amounts to about 10 per cent only. When discharged on 27.9.1963, the Respondent was in a position to walk about and he came to the hospital for the removal of the plaster of paris six weeks after the accident. The Respondent was not charged any fee by the doctor and the medicines available were supplied to him free of charge. There is no evidence that the Respondent''s right arm or the lower limbs have suffered any permanent disability.

The first question that is agitated in this appeal is that no claim had been filed by the Respondent within the period of limitation. It may appear that the Respondent''s brother, Nasib Singh, AW1, had sent a claim by registered post and that it has reached the Claims Tribunal on 11.10.63. There is nothing in this claim or in the forwarding letter dated 9.10.1963 to suggest that Nasib Singh had been duly authorised by the injured to file this claim. It is only mentioned in the forwarding letter that the claim is for compensation of bodily injuries of Sawal Singh Respondent. As it was felt that this was not proper presentation of a claim application, the Respondent sent another claim application through his brother, Chain Singh, on 18.1.1964. This application was hopelessly time barred but it was tagged on to the previous claim application sent by AW 4. It was not stated that he had been authorised by the Respondent to file the claim or that he was doing so on the Respondent''s behalf. He stated that he was filing this claim on his own behalf. The claim application or the forwarding letter are also silent about any authorisation of Nasib Singh by Sawal Singh for the purposes of filing the claim. Sawal Singh had been discharged from the hospital and was going about on 27.9.1963 and the limitation period was still available to him and there is no reason why he could not himsc If file the claim or send it by registered post. It was not for the Tribunal to advise him on the matter and he was supposed to be vigilant in availing of the ordinary period of limitation. There is no satisfactory explanation for the delay in the filing of the claim by the Respondent. Nasib Singh cannot be taken as a duly authorised agent who could have filed the claim on the Respondent''s behalf. The Respondent''s counsel has relied on New India Assurance Co., Ltd., New Delhi and Anr. v. Punjab Roadways, Ambala City and Ors. Law Reporter 156 but the facts in that case were altogether different. The implied authority to file a claim was presumed because the injured in that case who was a married lady had been rendered unconscious for a number of days, Her husband had filed a claim on her behalf during the period his wife was lying unconscious and was suffering from a physical and mental incapacity to file the claim. This ruling may suggest that a well meaning relative could file a claim on the strength of his implied authority where the person injured and entitled to the compensation for the injuries was suffering from any physical, mental or legal incapacity to file that claim. In the present case Sawal Singh had been discharged from the hospital after about a fortnight of the accident and he could avail of a considerable portion of the limitation period and there was hardly any necessity for his brother to take upon himself to file the claim after the Respondent had been discharged from the hospital. In S. Karam Singh v. The Custodian of Evacuee Property, Delhi Province AIR 1951 Sim 171 even a single day''s delay was taken to be fatal when it could not be properly explained. A similar view was taken In Sitaram Ramcharan etc. Vs. M.N. Nagarshana and Others, This appeal deserves to succeed on the simple ground that the Respondent had not filed any claim application in time either in person or through a duly authorised agent.

As regards the question whether the accident was the result of any rash or negligent driving of the vehicle by the Appellant No. I, it may be observed that the defence version came to be stated at a very late stage of the proceedings and could be descri-'' bed as an after-thought. The doctrine of res ipsa loquitur may seem to be fully applicable in the present case. Even if the cow had strayed on to the road, the driver was supposed to have control over the vehicle. In the present case, he had to brake and swerve so suddenly that his vehicle had gone off the road and had turned turtle. The wreckage at the scene can be more descriptive of the accident than any eye-witness account and can present a more moving picture as to how the accident had taken place. Where the circumstances speak for themselves and serious consequences have followed, an inference of rashness or negligence on the part of the driver can be raised. The Respondent'' had examined two persons as eye-witnesses about the accident. It was said that the truck was being driven at a very fast speed and that no horn had heen blown. The finding of the learned Tribunal that the accident was the result of rash and negligent driving of Appellant No. 1 is therefore being maintained.

Coming to the question of quantum of damages, the learned Tribunal may appear to have been rather too liberal. The doctor had stated that the Respondent had not been charged any fee. He was in a Government hospital where such medical facilities are supposed to be free. According to the doctor, the Respondent had suffered a permanant disability of 10 per cent which had led to the loss of an income of about Rs. 15/- per month. If this was loss that was to be compensated then a sum of about Rs. 3000/- would have been enough to secure to the Respondent a recurring income of Rs. 15/- per month by way of interest alone at a very normal rate of 6 per cent per annum. There was therefore no basis for allowing a sum of Rs. 2000/- as the amount spent on treatment. A numter of other items have also been allowed without any valid basis. A sum of about Rs. 5000/- in all may have been a sufficient recompense for the injuries sustained by the Respondent and the permanent disability suffered as a consequence.

In view of my finding that the Respondent failed to file any claim application within time, the appeal is accepted and the claim application of the Respondent is dismissed. I would however leave the parties to bear their own costs.