Jaswant Singh vs Gian Singh and Others

K. Kannan, J.—Both the appeals relate to same accident of multiple collisions involving the maruti car, bus, scooter and tree. The FIR registered soon after the accident at the instance of a scooterist, who came by injuries, was that the car coming from the side road turned into the main road when the driver dashed against the rear side of the car, mowed through scooterist and killing three persons and before the aggression stopped with a tree thankfully arresting further movement of the bus. The driver of the car suffered serious injuries which gives rise to the claim in FAO No. 2212 of 2002, some passengers in the bus were injured one of whom is the claimant whose case is the subject matter in FAO No. 3022 of 2002 and the scooterist and two other persons who were killed on the road when the bus moved further on before stopping after hitting the tree. The passenger in the bus gave evidence setting out a plea of careless driving on the part of the driver of the car as well as the driver of the bus but the common feature in the FIR and his own statement was that the bus hit the rear side of the car which had turned on the road from the side road. The Tribunal while assessing the issue of negligence found that it was the car driver who was responsible for the multiple collisions that had taken place and dismissed the driver''s claim for compensation for injuries suffered in the accident. The appeal in FAO No. 2292 of 2002 is against the dismissal of the petition.

I have no doubt in mind that a driver who comes from a side road on to the main road is required to observe caution before entering upon the road. The driver gave such a version in his own evidence that he took a turn at the T-junction on the main road, dropped his brother and as the car was proceeding further, the bus coming from behind in a rash and negligent manner dashed against the rear side of the car. It is a matter of record that the drivers of both the vehicles had been challaned and proceeded against for rash and negligent driving. There could be no doubt about the aspect that the driver of the bus was coming at a quite high speed. The bus driver''s own version was that the car had struck against the right side of the bus, the steering got locked and went out of his control and therefore, had run over some persons going ahead before stopping after dashing against a tree. His version cannot be fully true, for it conflicts both with the recital as contained in FIR and the version given by a passenger in the bus. The recital and the statement were, as we have seen above, that the point of impact had been at the rear side of the car. I cannot give a full credence to the statement of the driver of the car that he had turned on to the main road and dropped his brother and as he was progressing the vehicle, the bus dashed against the car, for this conflicts with the version both in the FIR and the statement of the passenger in the bus. I would factor a larger slice of culpability on the driver of bus who had caused vehement carnage on road by his negligent driving, killing three persons and injuring several but I will also apportion certain percentage of liability for the driver of the car who had evidently come on the road without fully allowing for the bus to go past the T-junction. I apportion the negligence between the driver of the bus and driver of the car 75:25. The dismissal of the petition by the Tribunal was clearly erroneous and the responsibility for the accident as caused on the driver of the car is set aside.

The appeal in FAO No. 2292/2002 was the case that he had been a shop keeper and doing business as Goldsmith. He had gone to foreign countries on business and he was earning about Rs. 10,000/- per month. There was nothing brought on record to show that he was running a shop or that he was a Goldsmith earning Rs. 10,000/-. He had been admitted in the hospital for six weeks and he had brought on record medical bills to the tune of Rs. 13,801/-. He had suffered a fracture of the vertebral bone and the doctor, who had examined him certified that he had a Cervical spine injury with loss of movement of Cervical spine with paralysis of both upper limbs and upper chest. He was permanently handicapped at 50% and his disability was not less than 40%. I would take the disability as assessed due to a spinal injury as resulting in equal percentage of loss of earning capacity as well. I will not go with the statement that he was earning Rs. 10,000/- but I will take average income at Rs. 5000/- and proceed to assess the compensation not merely for disability but also for loss of earning capacity. I will tabulate the various heads of claim as under:-

The aggregate of the amount under the various heads shall be Rs. 5,39,000/- and apportioning a 75% of liability for the negligence of the driver of the bus, the claimant shall have a compensation of Rs. 4,04,250/- with interest @7.5% from the date of petition till the date of payment. The right of enforcement shall be available against the insurer of the bus. The award of dismissal is set aside and the appeal in FAO No. 2292 of 2002 is allowed to the above extent.

In FAO No. 3022 of 2002, the claimant was said to be a driver by avocation and his injury resulted in fracture of both bones and stiffness at his knee. The doctor, who had treated him had assessed his disability at 12%. He was said to be admitted in the hospital for a week and had incurred expenses substantially. He had produced Ex. P4 to P23. The Tribunal assessed a compensation of Rs. 35,000/- as the amount payable.

I have not the best of evidence before me since the original papers are not available nor is the counsel able to help me with details as to whether he will be in a position to carry on which is avocation or not. I, therefore, will not allow for loss of earning capacity but compensate for loss of amenities for 12% disability as assessed at Rs. 25,000/-. I will factor component of pain and suffering at an additional amount of Rs. 20,000/- and provide for medical bills at Rs. 10,000/- and hospital and other charges to another Rs. 5,000/-. The total compensation payable will be Rs. 60,000/-. The amount in excess over what has already been provided by the Tribunal shall also attract interest @7.5% from the date of petition till the date of payment. The entire liability shall be borne by the insurer without any abatement.

The award is modified and the appeal in FAO No. 3022 of 2002 is allowed to the above extent.