Laxman Thapa vs Dharam Singh and Others

Amol Rattan Singh, J.—This appeal challenges the Award of the learned Motor Accident Claims Tribunal, Chandigarh, dated 04.01.2005, by which, even while holding the appellant was entitled to Rs. 45,000/- as compensation on account of the injuries suffered by him as a result of the accident in question, the amount awarded was reduced by 60%, holding that the driver of both, the Gypsy (Jeep), as also of the scooter on which the appellant was riding pillion, were guilty of negligence, with the scooter driver having been held to be guilty to the extent of 60%.

The appellant thus challenges both, the finding on negligence, as also seeks enhancement of compensation.

The facts leading up to the filing of the claim petition are that on 18.01.2003, at about 5:45 PM, the appellant is stated to have been riding pillion on a scooter driven by Rajdeep Singh (not impleaded as a party either before this Court or before the Tribunal) on the road leading from the District Courts, Chandigarh to Hotel Shivalik View, with the scooter allegedly at a slow speed. When the scooter reached behind the Treasury Office, a Gypsy bearing registration No. PB-12-E-5087, driven by respondent No. 1 and owned by respondent No. 2, parked behind the said office, was reversed by its driver on to the road, without blowing any horn, as a result of which it struck against the scooter due to which the appellant fell down and received injuries because of which he was hospitalized and was operated upon twice. A rod is stated to have been inserted in his leg and even after discharge, he allegedly could not move his finger properly and could not lift any weight or even walk properly.

As per the Disability Certificate of the Medical Board, exhibited before the learned Tribunal, it was a case of fracture of both bones of one leg with mild restriction of ankle movements, for which a disability of 5% was assessed by the Board, to the left lower limb of the appellants'' body.

The claim of the appellant, further was that he spent Rs. 20,000/- on his treatment.

With the record of this case having been completely burnt and then reconstructed to the extent possible, it is not clear as to what was the total amount of compensation claimed before the Tribunal, but before this Court, in this appeal, the amount claimed is Rs. 10,00,000/-.

The appellant, while appearing before the Tribunal as his own witness, stated that he was drawing a salary of Rs. 3000/- per month from the Canteen Contractor with whom he was working, but led no evidence to that effect.

The Tribunal, upon considering the entire evidence, simply awarded him a lumpsum of Rs. 45,000/- as compensation, without giving any breakup with regard to the same, which, as already noticed earlier, was reduced to Rs. 18,000/- on account of the negligence of respondent No. 1 having been ascertained as only 40%, with 60% being held attributable to the driver of the scooter, Ranjit Singh.

Mr. Ashwani Arora, learned counsel appearing for the appellant submitted that first, on the issue of negligence, the Tribunal wholly erred in firstly, contributing negligence of 60% to the scooter driver, whereas actually, it was the Gypsy driver (respondent No. 1), who reversed on to the road from the place where he was parked behind the building, which obviously meant that respondent No. 1 did not care to see as to whether the road was actually free from traffic, so as to allow him to reverse onto it, without endangering anybody. Hence, learned counsel submitted that actually it was a case of negligence wholly on the part of the said respondent, for which the driver of the scooter, Ranjit Singh, could not be held responsible in any manner.

Mr. Arora next submitted that simply because the scooter was also carrying an LPG cylinder on it, the Tribunal further erred in giving that to be a factor due to which contributory negligence could be attributed to the scooter driver, which in any case was not of the appellant, who was only a pillion rider.

Learned counsel further submitted that, moreover, even if this Court comes to a conclusion that there was negligence on the part of the scooter driver in not being careful, or because he was carrying an LPG cylinder on the scooter, the appellant in any case could not be attributed any contributory negligence as, it would be then be, at best, a case of composite negligence of the scooter and Gypsy drivers on account of which the appellant could not be foisted with any liability.

In reply, Mr. N.K. Verma, learned Sr. Dy. Advocate General, submitted that since the appellant was carrying an LPG cylinder on the scooter, it was a case of contributory negligence and had the cylinder not been on the scooter, as that was not the purpose for which passenger vehicle is to be used, especially a two-wheeler, the appellant may not have fallen down on the road and injured himself. He submitted that as could be seen from the Award of the Tribunal, it was because the scooter driver lost his balance on account of the LPG cylinder being with him, that the impact was so great, resulting in serious injuries to the appellant.

Learned State counsel, therefore, prayed for dismissal of the appeal.

In rebuttal, Mr. Arora submitted that as regards the contention that the LPG cylinder was being carried by the appellant, there is no evidence on record to state as to whether the cylinder was in front of the driver of the scooter or was being held by the appellant between himself and the driver. As such, no presumption can be raised that it was the appellant who was responsible for not being able to balance himself, thereby leading to the accident.

Having heard learned counsel for the parties and having gone through the pleadings as are available before this Court, upon reconstruction of the case, it is seen that what has been submitted by learned counsel for the appellant is correct to the extent that it is not determinable at all as to whether the LPG cylinder was being carried between the driver of the scooter and the appellant or whether it was being carried in front of the driver on the foot-board of the scooter.

It is, of course, not disputed that the scooter was not owned by appellant and as such any carriage of any LPG cylinder, obviously was an action attributable to the driver of the scooter, Rajdeep Singh.

Be that as it may, a perusal of the Award shows that the Tribunal actually came to the conclusion that the Gypsy did hit the scooter while reversing on the road. If that be so, it is not understood as to how, even if an LPG cylinder was being carried by the appellant or was on the scooter in any manner, respondent No. 1 can be absolved of negligence in reversing onto the road, from a side path/open area, without even bothering to see as to whether it was safe to do so or not.

Hence, in my opinion, the Tribunal wholly erred in attributing 60% responsibility, or any percentage of responsibility, on to the scooter driver and the appellant in being negligent in driving, when the scooter was admittedly going on its correct side of a motorable road.

That factual aspect apart, since the issue of contributory and composite negligence has been raised, it is necessary to deal with that issue also.

To repeat, it is not in dispute that the appellant was riding pillion on a scooter driven by one Rajdeep Singh. Hence, even if the Tribunal had come to a conclusion, wrongly or rightly, that both the Gypsy and the scooter drivers were negligent in driving, I do not see how the appellant could be foisted with any liability or contributory negligence on that count, even if he were holding an LPG cylinder between himself and the driver, which, in any case, has not been stated anywhere in the Award of the Tribunal.

As regards any negligence of two drivers, of two vehicles, that collide with each other, resulting in injuries to passengers, the law is well settled that such would be a case of composite negligence between the tortfeasors, for which an injured passenger obviously cannot be held responsible. In this regard, learned counsel for the appellant has cited various judgments, including that of a Division Bench of this Court in Oriental Insurance Company Limited Vs. Smt. Parveen Juneja and Others, (2003) ACJ 378 .

Other than the above, the judgment of the Supreme Court, in the case of Pawan Kumar and Another etc. Vs. Harkishan Dass Mohan Lal and Others, (2014) 1 ACC 386 : (2014) ACJ 704 : (2014) AIRSCW 1062 : (2014) 2 JT 381 : (2014) 2 RCR(Civil) 764 : (2014) 1 SCALE 760 : (2014) 3 SCC 590 : (2014) 4 SCJ 354 , can also be cited to the same effect.

In the said judgment, it was also reiterated, that even if one of the parties to composite negligence is not impleaded in a claim petition, it would not defeat the case of the injured/victim, as it is the prerogative of the claimant to implead either one or both the tortfeasors. Of course, in case it is held that it was a case of composite negligence, the remedy of one tortfeasor for recovery of the proportionate amount of compensation, from the other tortfeasor, would remain alive inter se each other.

Hence, non-impleadment of Ranjit Singh, driver of the scooter on which the appellant was riding pillion with him, would also not affect the claim of the appellant. In the present case, as has already been discussed above, in any case, I do not see how the non-impleadment of Ranjit Singh would make any difference to the claim of the appellant, in view of the fact that this Court has held that it was actually respondent No. 1 who was wholly negligent in driving on to the road and causing the accident while reversing. Hence, the finding of the Tribunal on the issue of contributory negligence is reversed.

Coming now to whether the compensation awarded by the Tribunal, before 60% deduction thereto, is commensurate to the injury and suffering of the appellant or not.

As per the Award, the appellant remained admitted for a period of nine days in hospital, first at the General Hospital, Chandigarh and thereafter in the hospital in Sector-32, Chandigarh. It is not clear however, whether it is only the second admission which was for nine days or the total admission was for the said period. However, though the appellant claimed to have spent Rs. 75,000/- on his treatment, the bills placed on record only amounted to Rs. 3475/-. As such, even though a rod was inserted in his leg, it is not possible to determine as to whether any amount more than that was spent by him, he having been treated wholly in a government hospital. However, firstly looking at the fact that other than the amount of Rs. 3475/-for which bills were proved, he would obviously have spent money on diet in the hospital, both for himself and for any attendant looking after him and some amount of ancillary expenses, would also have been incurred, an amount of Rs. 6000/- can be awarded to him, inclusive of the medical bills that were produced.

As regards compensation for the pain and suffering that he went through, which included two operations and insertion of a rod in his leg, in my opinion, nothing less than Rs. 50,000/- would suffice to alleviate such pain and suffering, even though such amount is on the conservative side, given that the suffering that he was made to go through, was for no fault of his.

Further, as regards the compensation for disability, the same was assessed as only 5% in the left lower limb with mild restriction, for which I think a sum of Rs. 10,000/- would be appropriate compensation.

Though no evidence at all was led by the appellant as to what was his actual earning and what was the consequent loss of his earning for the period that he could not work, the Tribunal recorded that he had deposed that he was drawing a salary of Rs. 3000/- per month, which would probably be approximately a correct figure, given the fact that even daily wage labourers, in the year 2005, were not earning, less than that, per month (Rs. 100/- per day).

Therefore, since he would have remained out of work for at least a month or two, given the fact that he needed to recover from two operations, including one by which a foreign body was inserted into his leg, in the opinion of this Court, a sum of Rs. 6000/- as loss of earning is the amount that should be awarded to the appellant, and is so awarded.

Thus, as seen above, the total compensation now awarded to the appellant is Rs. 72,000/- (Rs. 6000/- + Rs. 50,000/- + Rs. 10,000/- + Rs. 6000/-), payable by the respondents jointly and severally. The enhanced amount of compensation would carry an interest @ 8% per annum on it, running from the date of filing of the claim petition, till actual realization thereof.

The appeal is, thus partly allowed, as above, with no order as to costs.