Jinder Singh alias Rajinder Singh vs Naib Singh and Others

S.P. Goyal, J.—Appellant, Jinder Singh alias Rajinder Singh on November 21, 1972, at about 3.15 p.m., when he was going from Kesar Ganj to Mandi Ludhiana and had reached Dugri Road, was knocked down from behind by truck No. PUP 8391 and the front wheel of the truck passed over his right leg resulting in the fracture of his right tibia, fibula and medial mallealus. He, therefore, filed the present claim petition claiming Rs. 957.85 as expenditure on his treatment and Rs. 25,000/- as compensation for the injuries received. The claim was opposed by the driver, the owner of the truck and the insurance company. The three Respondents denied the averments made in the petition and the involvement of the truck in the alleged accident.

After appreciating the evidence led by the parties, the Tribunal held that though it was proved that the claimant was run over by truck No. PUP 8391, yet as it was not established that the truck was driven at that time by Respondent No. 1, none of the Respondents would be liable to pay any compensation. While deciding the issue on the quantum of compensation it assessed the expenses incurred by the injured at Rs. 1,400/- to which he was held entitled '' and no amount was allowed on account of physical and mental pain suffered because of these injuries.

The finding that it was truck No. PUP 8391 which was involved in the accident was not seriously disputed by the learned Counsel for the Respondents. Otherwise also this fact stands amply proved from the statement of PW 3, the injured. PW 4, Pal Singh and PW 5, Balwant Singh, were accompanying the injured while PW 5 was following them. Both of them have deposed that it was truck No. PUP 8391 which was driven rashly and negligently and had struck down the injured from behind. No evidence whatsoever was led in rebuttal by the Respondents. The Tribunal, therefore, rightly held that the injuries to the claimant were caused by the rash and negligent driving of truck No. PUP 8391. As regards the case set up by the claimant that the truck at the relevant time was driven by Naib Singh, Respondent, an employee of Respondent No. 2, the Tribunal found that there was no reliable evidence to prove the same. The learned Counsel for the Appellant frankly conceded that he was not in a position to challenge this finding. He, however, urged that even though the claimant has failed to show as to who was driving the truck when the accident took place, he would still be entitled to damages from the owner of the truck and the insurance company, unless it is shown that the truck was being driven neither by the employee of the owner nor by someone else under his express or implied consent. In support of this contention, he relied upon Gyarsilal Jagannathprasad Mor v. Pandit Sitacharan Dubey 1958 A.C.J. 352 (M.P.) and Liladhar Chaturbhuj Vs. Harilal Jethabhai, . In Liladhar Chaturbhuj Vs. Harilal Jethabhai, , Beaumont, C.J., after noticing several English decisions, speaking for the Bench held (he ad note):

In an action for damages for injury due to motor car, proof by Plaintiff that the car which caused the accident belonged at the time of accident to the Defendant raises a presumption that the driver of the car was the Defendant''s servant. It is for the Defendant to prove that at the time of the accident the car was not under his control.

This dictum was followed by a Division Bench of the Madhya Pradesh High Court in Gyarsilal Jagannathprasad''s case . Although in both these cases the person who was driving the vehicle was known, whereas in the present case, it is not so, yet that fact would be of no consequence and the principle laid down therein would be applicable in both the situations because the ratio of the said decisions obviously is that once it is proved that a particular vehicle was involved in an accident, the fact as to who was driving and under what circumstances is in the knowledge of the owner and it would be for him to prove the same to escape from the responsibility. The argument of the learned Counsel for the Respondent based on a decision of the Federal Court of Malaysia in Karthiyayani v. Lee. Leong Sin 1975 A.C.J. 440 (F.C., Malaysia), that unless it is shown the person driving was a servant of the owner or acting on his behalf as his agent, he would not be liable, has no direct bearing on the question at hand because this abstract proposition of law is not under debate. What is advocated by the learned Counsel for the Appellant, as already noticed above, is that once it is proved that the vehicle involved in the accident belonged to Respondent No. 2, it was for him to prove the facts and circumstances absolving him of his liability and in the absence of such proof, the Tribunal would be legally justified to raise the presumption that the vehicle was being driven by someone who was either under the employment of the owner or was so doing with his express or implied consent. To controvert this proposition which was approved in the above-mentioned cases no decision to the contrary was cited by the learned Counsel for the Respondents. That apart, even the dictates of justice would require that it should be the burden of the owner of the vehicle to show that it was being driven by someone not under his control as otherwise it is likely to result in grave miscarriage of justice. In cases, where a pedestrian, cyclist or a person going on motor bike or rickshaw is hit from the back by a truck or other such heavy vehicle it would not be possible for the injured to recognise the driver if he hits and runs away. In these circumstances, the injured or the heirs of the deceased cannot reasonably be expected to name the driver or prove as to who was driving the vehicle and under what circumstances. To require the claimant to establish the said fact could also mean the perversion of the cardinal rule of evidence that when a person has the special means of knowledge of a fact it is for him to prove the same. Therefore, respectfully agreeing with the rule of law laid down by Beaumont, C.J. in Liladhar Chaturbhuj Vs. Harilal Jethabhai, . I hold that on proof that the truck involved in the accident belonged to Respondent No. 2, it was for him to establish the circumstances absolving him of the liability. As no evidence was led by the owner, so much so that he himself even did not appear in the witness box, there is no option but to hold that the truck at the relevant time was driven by someone either in his employment or with his express or implied consent which necessarily makes him liable for damages for the injuries caused to the claimant by its rash and negligent driving.

As regards the damages, the Tribunal allowed Rs. 1.400/- on account of medical and other expenses. The correctness of this amount is not disputed but it is urged that no compensation has been allowed for the pain and suffering on account of multiple fractures received in the accident. This is an obvious omission in the award and even the learned Counsel for the Respondents could not refute this claim. The claimant, as already noticed above, suffered the fracture of his right tibia, fibula and medial mallealus and remained in the hospital for 63 days. Keeping in view all these circumstances, I feel Rs. 3,000/- would be the minimum compensation he would be entitled to on account of mental agony and physical suffering.

In view of the above discussion, this appeal is allowed with costs and the impugned judgment set aside. The Appellant is granted an award in the amount of Rs. 4,400/- which he shall be entitled to realize from Respondent Nos. 2 and 3 together with interest at the rate of 10 per cent from the date of the filing of the claim petition.