Kanwaljit Singh and Others vs Santokh Singh and Others

S.S. Sodhi, J.—This judgment will dispose of four appeals including the one referred to above. The other three appeals being F.A.O. No. 28/1973 Gursharan Kaur and Ors. v. Santokh Singh and Ors. F.A.O. No. 48/1973 Santokh Singh and Ors. v. Kanwaljit Singh and Ors. and F.A.A.O. No. 49/1973 Santokh Singh and Ors. v. Gursharan Kaur and Ors. All these appeals pertain to the same accident and. arise out of the same award of the Motor Accidents Claims Tribunal and were, thus, heard together.

On 151.1967 at about 5.30 p.m., an Ambassador car No. DLY 85 was involved in an accident with a cyclist on the G.T. Road near Police Station Rai. The cyclist was Joginder Singh, a Havaldar of the Indo-Tibet Border Police Training Centre. He was carrying his son Kanwaljit Singh who was then about four/five years of age, on the handle bar of his cycle at that time. Joginder Singh was run over and killed in this accident while his son Kanwaljit Singh received grevious injuries. It is in respect of this accident that two separate applications for compensation u/s 110 of the Motor Vehicles Act, were filed one by Gursharan Kaur, the widow of the deceased and their children claiming Rs. 50,000/- as compensation for the loss suffered by them on account of the death of the deceased and the other by Kanwaljit Singh claiming damages to the tune of Rs. 30,000/- for the injuries suffered by him in this accident.

The Tribunal came to the finding that this was a case of contributory negligence and that Joginder Singh deceased was mainly responsible for the accident. The damages that his heirs had suffered on account of his death were Rs. 30,000/- but keeping in view the fact that he was more negligent in the accident than the driver of the car, only Rs. 7,000/- were awarded as compensation to his widow and children. As regards Kanwaljit Singh he was awarded a sum of Rs. 5,000/- as compensation for his injuries. Two sets of appeal have now been filed to challenge the award of the Motor Accidents Claims Tribunal. The claimants seek enhanced compensation while the owner and the insurance company of the car involved in the accident sought to deny their liability for payment of any damages in this case on the ground that the accident had not taken place due to any negligence on the part of the car driver.

The version of the accident as per the claimants was that on 15.1.1967 Joginder Singh deceased while going to his duties at Police Station Rai noticed his son Kanwaljit Singh on the road side. He picked him up and put him on his cycle and proceeded towards his residence in Man Singh quarter. When he reached near his quarter, his son insisted upon accompanying him to the police station which was situated just opposite to that place. Just then a car came at high speed from the side of Sonepat. The driver suddenly lost control of the car and dashed against Joginder Singh and his son Kanwaljit Singh. The child was thrown on the ground with great force which resulted in serious injuries to him including fracture of the head bone. Joginder Singh was run over by the car and he died as a result of the injuries suffered by him.

The only witness examined by the claimants with regard to this accident was AW 4 Suraj Bhan who did not actually see the accident taking place but reached there immediately after the occurrence. It was his testimony that he had come on to the G.T. road when the car passed him and when he turned towards Delhi he saw that the car had struck against the cyclist who had been run over by it and the cycle and the cyclist were lying on the kacha portion on the left side of the road while the child was lying on the left side of the metalled portion of the road. He further deposed that he then informed the police of this occurrence and brought them to the spot and after narrating the incident to them he went away. The next day when he came to supply milk to Col. Bhagat Singh D.I.G. he enquired about Joginder Singh from him and on that occasion he had narrated the incident to him too. This fact was corroborated by Col. Bhagat Singh when he appeared as AW5.

The accident between the car and the cyclist was admitted by the Respondents (the car driver, owner of the car and insurance company) but negligence was denied by them. It was their version that the car was being driven at a slow speed and horn was also blown. But the cyclist paid no heed to it and tried to cross the road at such a close space without caring of the traffic on the road that in spite of the best efforts of the car driver to avoid it, the car touched the cycle slightly resulting in the accident.

Baldev Singh, the car driver when he appeared in the witness box as RW3 deposed that when he had crossed the police station Rai by 50 yards he saw the cyclist coming on his correct side of the road from the opposite direction. When the cyclist was only 10 yards away he suddenly swerved towards his right without giving any prior indication. In order to save him he took the car to the extreme left and when the car was on the kacha and the pucca portion of the road, the cyclist struck the right side of the car and fell down. He denied that the car had run over the cyclist.

Baldev Singh went onto state that two sikh gentlemen came from behind on cycles and one of them disclosed that he was the brother of the injured and then he removed the cyclist and the child to the hospital. The police also came there. He was not challaned in this case as the deceased was entirely to blame for the accident. He, however, deposed that at the instance of the police, a sum of Rs. 1,600/- was paid by his father to the father of the widow of the deceased.

It will be seen that the story of Rs. 1,600/- having been paid as compensation to the father of Gursharan Kaur, the widow of the deceased finds no mention in the written statement of either of the Respondents. The only evidence with regard to this matter is the statement of RW3 Baldev Singh himself. It is significant to note that he could not give the name of the father of Gursharan Kaur nor any particulars regarding him. He could not say whether he was tall or short or black or white. Further while in his testimony he had deposed that this money had been paid to the father of Gursharan Kaur, the suggestion made to Gursharan Kaur was that this amount had been paid to her brother-in-law Shamsher Singh. In this state of the evidence there is clearly no warrant for accepting this version of the car driver.

As regards the fact that Baldev Singh was not challaned with regard to this accident, this is a matter for severe criticism of the police and it can by no means be treated as a circumstance in favour of Baldev Singh. This was a case where the accident had taken place just opposite the police station and the police were informed and brought to the place of the accident immediately thereafter and it was the police that took the injured to the hospital or at any rate reached there soon thereafter but in spite thereof there is no material on record to show that the police in any manner went through the motions of investigating this accident. No statement of the driver appears to have been recorded nor of any other witness, not even of Suraj Bhan, no site plan appears to have been drawn up nor any photographs taken. In this behalf it will be relevant to advert to the statement of RW4 Man Singh on whose statement it was suggested that the police took no action in this matter. Man Singh, however, deposed that he had not witnessed any occurrence and no statement had been made by him to the police. It is significant that he was not confronted with any statement alleged to have been made by him to the police. The fact, therefore, that the car driver was not challaned by the police in this case cannot be construed as a pointer to the car driver not being to blame for this accident.

Coming to the accident itself, conflicting versions have been put forth by the claimants and the Respondents. Mr. V.P. Gandhi, Learned Counsel for the claimants, sought to show that both the cyclist and the car were travelling in the same direction, i.e., towards Delhi when the car came from behind and hit into the cyclist while Mr. L.M. Suri appearing for the Respondents, on the other hand sought to contend that the cyclist had come from the opposite direction, i.e., from the side of Delhi and the accident had taken place when he suddenly swerved towards his right to go across the road. Great stress was in this behalf laid upon the fact that the damage to the car was on the front right side thereof.

In dealing with these conflicting versions it would be relevant to consider that assuming the cyclist has been coming from the side of Delhi as per the statement of the car driver it must be appreciated that the traffic coming from in front of him would be clearly visible to the cyclist and according to the normal course of human conduct he would be expected to pay due heed to it before proceeding to go across the road. If it is further assumed that the cyclist without caring to notice the traffic on the road had suddenly swerved towards his right, the greater opportunity for avoiding the accident would obviously be with the car driver on account of the disparity in the speed of the car and the cycle. This would be all the more so in a case like the present where the impact between the cycle and the car book place on the edge of the other side of the road. These aspects of the matter call for some explanation or clarification from the driver of the car but none is forthcoming.

It would be pertinent to have regard here to the position of the car and the injured as noticed by AW4, Suraj Bhan who had reached the spot immediately after the occurrence. He found that the injured boy was lying on the left edge of the metalled portion of the road while Joginder Singh deceased who is stated to have been run over by the car was lying on the kacha portion of the road on the left side. Baldev Singh, the driver of the car had stated that the deceased had not been run over but his testimony cannot be accepted in the face of the testimony in this behalf of AW6 Dr. Ram Gopal Verma who conducted the post mortem examination on the dead body. He clearly stated that the injuries on the person of Joginder Singh deceased showed that some vehicle had run over him. AW4 Suraj Bhan had also stated to this effect and his testimony on this point was not challenged. Great stress was, thus, laid by Mr. V.P. Gandhi on the position of the car and the injured immediately after the incident in support of his argument that the car had come from behind and hit into the cyclist.

The clincher in this case is provided by the fact that police station Rai is situated on the right side of the road while proceeding towards Delhi. It was the case of the claimants that Joginder Singh deceased was to go to this police station when the accident took place and the police station was situated opposite the place of accident. In other words, the deceased was on the left side of the road proceeding to Delhi, with the police station on the right. If the version of the car driver is to be accepted it would mean that Joginder Singh deceased was coming on the road on the same side on which the police station is situated. If this is so, there was clearly no occasion for him to seek to go across the road.

The circumstances and the evidence on record, thus clearly lead to the conclusion that both the cyclist and the car were proceeding in the same direction when the accident took place and that the car came from behind and hit into the cyclist. It follows from this that it lay upon the car driver to explain the manner in which he came to hit into the cyclist from behind, more so when the position of the deceased Joginder Singh and his injured son Kanwaljit Singh immediately after the accident pointed to their having been on the left edge of the road when the car hit into them. What the driver came forth with instead is a totally different version which cannot stand scrutiny. The damage on the front right side of the car shows negligence on the part of the car driver keeping in view the position of the deceased and the injured child immediately after the accident as observed by AW4 Suraj Bhan. Counsel for the claimants was indeed justified in invoking the principle of res ipsa loquitor, in the circumstances of this case to seek to shift thereby the burden upon the car driver to disprove negligence on his part in this accident. This burden, the car driver failed to discharge. There can, thus, be no escape from the finding that the accident in this case took place as per the version of the claimants and was, thus, entirely due to the rash and negligent driving of the car driver.

Turning now to the quantum of compensation that the claimants are entitled to, it will be seen that the claimants here are Gursharan Kaur, the 37 years old widow of Joginder Singh deceased and their five minor children whose ages range from seven to nineteen years. It has come in evidence that at the time of the accident Joginder Singh deceased was 40 years of age and was getting a salary of Rs. 250/- per month as also free rations and uniform and while on border duty he was also entitled to a special allowance equal to 50% of his salary. Keeping in view the principles for computing compensation to be awarded in such cases, as were laid down by the Full Bench in Lachman Singh and Ors. v. Gurmit Kaur and Ors. 1979 A.C.J. 170 (P. and H.) it must be held that the loss suffered by the claimants on account of the death of the deceased was to the tune of Rs. 200/- per month and clearly the appropriate multiplier here must be sixteen. The claimants are, thus, entitled to compensation on this basis which works out to Rs. 38,400/- (200 � 12 � 16 = 38,400/- ).

Coming now to the case of Kanwaljit Singh claimant for the injuries suffered by him in this accident, according to the evidence on record he was four to five years of age at that time. AW6 Dr. Ram Gopal Verma found multiple injuries including a head injury when he examined Kanwaljit Singh at the Civil Hospital, Sonepat on 15.1.1967. He was then referred to the Safdarjang Hospital, New Delhi for further treatment. At the Safdarjang Hospital he was examined by AW1 Dr. Miss T. Dutta on the next day, i.e., 16.1.1967. She found him to be semi-conscious at that time and there was weakness on the left side on his body with swelling on the left eye and also a squint in the left eye. She deposed that his consciousness had improved gradually and he started speaking but his speech was defective. He developed hallucinations. He had lost his memory and had developed abnormal movements of the left side of the body. By the time of his discharge from the hospital on 23 2.1967 there had been an improvement in the weakness of his left side but there was no improvement in his mental condition like loss of memory and behaviour disorder or in his intelligence. She stated that he had no intelligence. Dr. Dutta went on to depose that the child had not made good improvement in his mental condition in 32 months after the accident and she was, therefore, of the opinion that he will never be completely cured of this defect.

AW2 Dr. H.S. Ahluwalia, the brain surgeon at the Safdarjang Hospital, who examined Kanwaljit Singh deposed that he found weakness in the left side of the body together with some paralysis of the nerves of the left eye, defective speech and defective memory. This damage, in his opinion, would be permanent and it was due to the direct injury to the brain suffered by him. He also referred to epilepsy and it was further his statement that this child would remain physically and mentally handicapped.

Finally, there is the statement of AW7 Gursharan Kaur, the mother of Kanwaljit Singh, who deposed in August 1970, that Kanwaljit Singh had not yet been cured. His brain was upset and he was wholly dependant upon her and would remain so for the rest of his life.

It will be seen that the nature of the injuries suffered by Kanwaljit Singh were such that they must, indeed, have caused him great pain and suffering and what is more, he has been left physically and mentally handicapped thereby for the rest of his life. Besides this it is obvious that some amount must have been spent upon his treatment though there is no evidence to establish this. Expenses must have been incurred and would obviously be incurred in future in providing nursing services which he would undoubtedly require for the rest of his life. In these circumstances. Kanwaljit Singh claimant in F.A.O. No. 27/1973 is clearly entitled to the 30,000/- claimed by him as damages for the injuries suffered by him in this accident.

In the result the claimants Gursharan Kaur and her children in F.A.O. No. 28 of 1973 are awarded a sum of Rs. 38,400/- as compensation for the loss suffered by them on account of the death of Joginder Singh deceased. Out of the amount recovered, a sum of Rs. 18,400/- shall be payable to Gursharan Kaur and the balance to her children in equal shares. The claimants shall be entitled to this entire amount of Rs. 38,400/- with interest @ 10% per annum from the date of the claim application to the date of payment thereof.

Kanwaljit Singh claimant in F.A.O. No. 27/1973 is hereby awarded a sum of Rs. 30,000/- as compensation for the injuries suffered by him and he shall in addition be entitled to interest @ 10% per annum from the date of the claim application to the date of payment thereof.

The liability of the Respondent insurance company shall however, be limited to Rs. 20,000/- in each case, i.e., Rs. 20,000/- out of the compensation awarded to Gursharan Kaur and others and Rs. 20,000/- awarded to the claimant Kanwaljit Singh.

The appeals filed by Gursharan Kaur and others and Kanwaljit Singh are accordingly hereby accepted with costs, counsel fee Rs. 500/- (one set) while two appeals filed by Santokh Singh and others against Kanwaljit Singh and other against Gursharan Kaur and others filed by Santokh Singh and others being F.A.O. Nos. 48/1973 and 49/1973 are hereby dismissed.