Mohinder Gupta vs Major Singh and Others

Gokal Chand Mittal, J.—On 21.2.1979 at about 10.15 a.m. an accident took place between a scooter HYA-1975 driven by Mrs. Mohinder Gupta, advocate, the claimant-Appellant and a three-wheeler scooter No. CHV 30, which was driven by Major Singh, owned by Hoshiar Singh and insured with the New India Assurance Company Ltd. The accident took place almost in the middle of the Madhya Marg near the crossing of Sectors 10, 11, 15 and 16 near about the place where the side lane coming from Sector 15 towards the crossing, meets the main road--Madhya Marg. The scooter came from Sector 15 and when it was in the middle of Madhya Marg, it was hit by a three-wheeler which was going on Madhya Marg towards the P.G.I. The scooter driver, i.e. Mrs. Mohinder Gupta, placed the blame on the driver of the three wheeler and the driver of the three wheeler blamed the driver of the scooter.

On the contest of the parties, following issues were framed:

(1) Whether the accident in question relating to the injuries to Mrs. Mohinder Gupta, as detailed in the application, occurred due to the rash and negligent driving of his scooter rickshaw No. CHV 30 by Major Singh, Respondent No. 1?

(2) To what compensation, the Applicant is entitled to and from whom?

(3) If issue No. 1 and 2 are proved, whether the liability of Respondent No. 3 is limited to Rs. 50,000/- only?

(4) Relief.

After evidence was led, the Motor Accidents Claims Tribunal by a detailed judgment dated 5.4.1982 came to the conclusion that the driver of the scooter, namely, the claimant, was responsible for the accident in which she had suffered a head injury. Since she was found negligent her claim application was dismissed by the Tribunal. However a finding was recorded on issue No. 3 that in case the three wheeler was held liable for the accident, then she would have been entitled to a sum of Rs. 10,000/- as compensation for the injuries suffered and another sum of Rs. 5,000/- as the amount spent on treatment. Against the aforesaid, the claimant has come to this Court in this appeal.

After hearing the Learned Counsel for the parties, I am of the view that it is established by the record that it was the three wheeler who was responsible for the accident. Site plan is exhibit P.W. 9/2, which shows the track followed by the scooter. The accident took place almost in the middle of the road and after the accident the three wheeler stopped on its extreme left, whereas the scooter and its driver fell down in the middle of the road very close to the place of accident. Photographs exhibits PW6/1, PW6/4 have also been produced. A look at them shows that the accident, took place in the middle of the road and after the accident, the scooter fell down quite close to it. The three wheeler went towards the left side of the road far away from the place of the accident. Hence the site plan is fully supported by the photographs. The evidence now deserves to be appreciated in the light of the factual position which emerges from the aforesaid because the plan and the photographs remain unchallenged. The eye-witnesses to the accident are Jagdish Singh Sahasi, Assistant Engineer, P.W. D. (B and R) Haryana on deputation to Union Territory, Chandigarh (P.W. 10) Bachan Singh driver, M.E.S. (P.W. 11) and the claimant herself as A.W. 13. Jagdish Singh Sahasi (P.W. 10) has deposed that he was emerging on the Madhya Marg at about 10.15 a. m. on the fateful day when he saw that Mrs. Mohinder Gupta, claimant, was coming on a Lambretta scooter No. HYA-1975 in her advocate''s robes and was approaching the Madhya Marg from the service lane of Sector 15 and he was following her at a distance of 25 yards. From Sector 16 side a three wheeler came and its driver waved his hand and gave a signal to enter the service lane from which Mrs. Mohinder Gupta was coming but the three wheeler did not proceed towards the said lane and hit Mrs. Mohinder Gupta due to which she fell down from the scooter and received injuries. He stated that the three wheeler was coming at a high speed and the scooter was at its normal speed. The front side of the three wheeler hit the rear side of the two wheeler. He immediately parked his scooter on one side and picked up the claimant and stopped a car which was coming from Sector 16 side. The claimant was taken to the P.G.I. in that car. The car driver brought him back to the site of the accident after the claimant had been admitted in the P.G.I. In cross-examination, his testimony was sought to be challenged and he gave the speed of the three-wheeler to be 50 to 60 kms. per hour. He also stated that Mrs. Mohinder Gupta had gone about 8 yards/meters from the point of emergence of the side lane towards the main road, when the three-wheeler hit her. He stated that he did not know the injured before the accident. The car, which took the claimant to the P.G.I. was identified by him as an Official Army staff-car and the driver to be a sikh gentleman without uniform. He also stated that his name was written by the P.G.I. authorities when the claimant was admitted there. Bachan Singh (P.W. 11) stated that he was proceeding from Sector 7 to Command Hospital, Chandigarh and was driving the staff car of the, Army and was on Madhya Marg, On the fateful day at about 10 or 10.15 a.m. he stated that a three wheeler scooter just crossed from behind in front of the General Hospital, Sector 16, Chandigarh. When the witness reached near the crossing, he saw a lady with white saree coming from the side lane but the three-wheeler was at excessive speed and hit the scooter. The two-wheeler stopped in the middle of the road and the lady fell down and got injuries. The injured was taken by him to the P.G.I. He recognised P.W. 10 as the other person whose name he did not know, who alongwith two other persons had taken the injured to the P.G.I. in his car. He stated that his car number, name and address were noted in the P.G.I. He was cross-examined and he stated that injuries were on the head and she was bleeding and was not able to speak. He saw blood on her face, hair and neck. The three-wheeler stopped at a distance of about 7 meters from the dividing lane and had capsized on the left side. The three wheeler was stated to be at a distance of about 13 meters ahead of the car and he had seen the accident. Some portion of his cross-examination is as follows:

The three wheeler was at a distance of 13 meters ahead of me. I was just near the traffic round when the accident took place and I could see the accident. The three-wheeler was 17-18 meters from me when the actual accident took place. I had no instrument of measurement and therefore I cannot say exactly as to what was the distance between the traffic round and place of accident but it may be 16-17 meters. The three-wheeler crossed and passed my car in Sector 16 just in front of the General Hospital. I was at the speed of 30 to 40 kmph. The spare wheel of the two-wheeler scooter was damaged and came out of the scooter with the impact.

He denied the suggestion that he was not present at the time of the occurrence or that he was making a false statement.

The claimant as A.W. 13 supported the aforesaid version. The relevant part of her statement, which has been used against her by the Tribunal, is as follows:

I was coming out of the side lane on the Madhya Marg and was emerging on the Madhya Marg on my scooter. Then a three-wheeler scooter CHV-30 was seen by me coming from the side of Sector 16 and I had seen it from 15/20 yards. I had yet not emerged from the side lane when in the mean time the three-wheeler gave an indication to take a turn towards left. I had then crossed 3/4th portion of the road and was just near the divider, rather had gone across the divider, the three-wheeler was so fast that it hit my scooter. The three-wheeler hit the stepney from behind towards the right side. I fell down towards my right and scooter also fell on me. My head started bleeding.

As against the above, the driver of the three-wheeler appeared as R.W. 1 and Baldev Singh a passenger of the three-wheeler appeared as R.W. 2. R.W. 1 stated that on the fateful day he picked up a passenger from Neelam Cinema to take him to the P.G.I. and while he was on Madhya Marg and after crossing the traffic round just beyond the General Hospital, when his three-wheeler was on 20/25 kmph speed, he sounded the horn. He was not required to indicate by show of the hand the direction in which he was to proceed. According to him, the side lane could not be used for entering on the main road but could be used for going from the main road into that lane. According to him, near the place of emergence of the side lane, a lady came on a scooter and when he sounded the horn, she got shaky and could not handle due to trembling of her hands and she came in front of him. He swerved the three-wheeler to the left to save the scooterist. Then a portion of the three wheeler, i.e. its right side hit her scooter on the back side near the place where the stepney is kept. According to him, if he had not saved the situation, it would have been a head-on collision smashing the lady. Since he took his vehicle towards his left side to save the lady, suddenly his scooter turned turtle. So according to him, it was the lady who was at fault and not he. In cross-examination he denied if he was on fast speed. He also denied that he gave a signal to take a turn towards the left. He also denied that the side lane was open for entry. R.W. 2 supported the stand of R.W. 1. In examination-in cheif, be further stated that his address was taken by some constable on the spot and that he went to the P.G.I. in ordinary rickshaw. When cross-examined, he stated that his sister''s husband had some mental trouble and he was to get him examined on that day. His brother-in-law was not with him since he had already reached the P.G.I. The patient was shown to Dr. Gulati on that day. He had obtained leave from his office and had started at about 9. 30 a.m. in the three-wheeler of R.W. 1. He was residing in Sector 21 in those days and used to go to his office on a bicycle. Soon after the accident, the fare was paid to the three-wheeler. He denied if he was deposing falsely or that he was not present at the spot or that it was the fault of the driver of the three-wheeler. It is important to notice that neither the three-wheeler driver nor the passenger stated as to how claimant was removed to the P.G.I. Therefore, the version of the claimant that she was removed to the P.G.I. in a military staff car, has remained unrebutted. On a reading of the entire evidence on record, my conclusion is that both the eye witnesses produced by the claimant are reliable witnesses and nothing has been shown on the record to cast any doubt if they were not present at the time of the accident. The driver of the car has stated that the three-wheeler over took him nearabout the General Hospital which clearly goes to show that the three-wheeler was at a very fast speed, i.e. faster than the car which was being driven at 30/40 kmph speed. The three-wheeler was at a high speed at a time when it was approaching the crossing after passing in front of the General Hospital, Sector 16 and his distance from the car increased from 13 meters to 16/17 meters by the time the accident took place. That means that inspite of approaching the crossing the three-wheeler did not slow down and went on at a fast speed and hit the stepney on the back side of the scooter almost in the middle of the road which clearly goes to show that to come to the middle of the road, the scooterist would take much lesser time as compared to the three-wheeler who was to reach that spot after passing through the round about of the crossing. The Tribunal below did not believe the story of the claimant that she moved on towards the middle of the Madhya Marg only after she saw the signal from the three-wheeler that he wanted to take a turn towards the left, inside the lane. Even if that part of the story is not to be believed and it is assumed that the three-wheeler wanted to go straight to P.G.I. yet he had to drive his three-wheeler with such control that if somebody came in his way, he could stop the scooter without hitting him. The high speed with which driver of the three-wheeler was moving is amply proved from the statement of the driver of the car P.W. 11 as also from the statement of P.W. 10. Moreover, the fact that the three-wheeler hit the back side of the scooter, shows that the scooter had almost crossed the middle of the road at which point the three-wheeler came and hit it.

The Tribunal was greatly impressed by Regulation 7 of the Driving Regulations in the Tenth Schedule of the Motor Vehicles Act, 1939, which reads thus:

The driver of motor vehicle shall on entering a road intersection, if the road entered is a main road designated as such give way to the vehicles proceeding along that road and in any other case giving way to all traffic approaching the intersection on his right hand.

On the basis of the aforesaid regulation, the Tribunal observed that it was the duty of the scooterist, who was coming from a side lane, to give way to the three-wheeler who was going on the main road and thus concluded that the three-wheeler was not at fault because he had right of precedence and it was the fault of the scooter. While according to the traffic regulations, certain duties are cast which have to be observed, but they do not even remotely convey that it gives right to the person on the main road to run over everybody coming from the side lane. This would have disastrous results.

While the Madhya Marg is a main road, it is not the highway of the kind which may be in foreign countries on which no cross-roads meet for long distances. This Madhya Marg has several openings from sectors abutting on both sides of it with round abouts on the corners of four sectors adjoining each other. On this road and near the place of accident there is, opening of General Hospital, Sector 16 and there are side lanes, one from Sector 11 and the other from Sector 15. The side lane from Sector 11 has approach to and from the Government College for women and Government College for men and the side lane from Sector 15 is used by all the residents of Sector 15 and persons coming to and from Rama Krishna Mission and several other institutions including petrol pump, which open on the side lane. The main road, i.e Madhya Marg goes to P.G.I. and Punjab University. On such busy road every driver has to be careful to avoid hitting the students as also other persons and no vehicle driver can be allowed to run over the other persons using the road on the basis of Regulation 7 and to escape the civil liability of paying damages/compensation for the accident. Suppose in a given case, a student or any other person emerges from some side lane on Madhya Marg, as in dispute in this case, on foot, or on cycle or scooter and on the Madhya Marg, a heavy motor vehicle or a light motor vehicle or three-wheeler is passing, can it be said that if the person coming from the side lane does not stop at the side lane and emerges on the main road (Madhya Marg) inspite of the fact that a vehicle is going on the main road, it gives a right to the vehicle coming on the main road to run over that person because of Regulation 7. To my mind, the answer would be that Regulation 7 does not authorise the driver of the vehicle going on the main road to run over any person. If this analogy is to stand the test, 1 see no difference in the applicability of this rule to the facts of the present case. That is why, I am saying that it will have to be tested on the facts of each case whether the accident took place due to the fault of both the persons involved in the accident and to what extent each would be liable and whether it was solely due to the fault of one or the other and only then the case could be decided. To my mind, it will be wholly wrong to say that because of Regulation 7 the vehicle coming on the main road can be allowed to contemptuously run over any number of persons coming from the side lane.

The Motor Vehicle Regulations also provide that the persons on the road must keep their sides. Assume, a child or a student or any body else moves on a wrong side of the road, would that by itself provide a right to the vehicle owners coming on their correct side to run over them? Regulation 7 does not mean that if a vehicle is on the main road at a far off distance, the person coming from the side lane cannot emerge on the main road till the vehicle on the main road passes through. If this process were to be followed the person coming from the side lane would be allowed to come on the main road only when the road is clear and no vehicle within the visible distance is seen thereon. On the facts of the present case, I do not find the claimant guilty of violating Regulation 7 because she had reached the middle of the main road, i.e. the divider-line when the three-wheeler hit the stepney on the back side of the scooter with its front side. It is clearly a case in which there is no contributory negligence of the claimant and it was the driver of the three-wheeler alone who was negligent and responsible for the accident. If the three-wheeler had not been at a fast speed, as deposed by P.W. 10 and 11 he would have been probably near the round-about crossing and the claimant would have safely gone to the other side of the road.

That statement of the driver of the three-wheeler also leads to the inference that he was negligent in driving his vehicle because he hit the stepney of the scooter i.e. on the back side of the scooter with the front side of his vehicle. Once he had seen that the scooter had reached near the middle of the main road, he had to slow down his vehicle but instead, he took a chance of moving on with the same fast speed thinking that the scooter will pass in the meatime and he will have a clear way to pass, but his judgment of the situation came to be wrong and since he was at a fast speed, he could not control his vehicle and hit the back side of the scooter and stopped at a distance of 7/8 meters after the accident on his left side. Once from the statement of the driver of the three-wheeler the inference of his negligence and the story of the eye witnesses produced by the claimant is proved the statement of the passenger of the three-wheeler can be of no better avail than the statement of the driver of the three-wheeler.

For the reasons recorded above, I disagree with the finding recorded by the Tribunal to the contrary and reversing those findings hold that it was the driver of the three-wheeler who was solely responsible for the accident as he was driving his three-wheeler at a high speed and did not slow down inspite of the fact that it first passed in front of the main gate of the General Hospital, Sector 16, where there is great rush, then it had to pass through the roundabout crossing and had to come back again on the straight road going to the P.G.I. A driver with caution would have slowed down firstly when passing in front of the General Hospital, Sector 16 and would have further slowed down while passing through the round about and if he had to gain the speed after passing through the round about he could do so if the road was clear. The driver of the three-wheeler did not follow this in the present case and therefore, was clearly negligent in driving his vehicle as a result of which the accident took place and the claimant received injuries. Issue No. 1 is, therefore, decided in favour of the claimant-Appellant.

As regards compensation, the claimant has produced cash memos with regard to the purchase of medicines to the tune of Rs. 6,700/- . These cash memos have been produced by Darshan Gupta (P.W. 16) husband of the claimant. These bills are for the period starting from the date of accident in 1979 till 23.7.1981. The Tribunal has allowed Rs. 5,000/- towards medical expenses. Nothing has been shown to me as to why all the cash memos should not be accepted. Therefore I accept all the cash memos placed on the record and hold that the claimant has spent Rs. 6,700/- in purchasing the medicines for her treatment.

Coming to the grant of compensation for the head injury and the sufferance although the claimant has claimed Rs. 4,00,000/- including Rs. 50,000/- for miscellaneous and other expenses, I am of the considered view that it will meet the ends of justice if Rs. 30,000/- are allowed to her. From the several patient cards produced from the P.G.I. as also the statements of Dr. Amod Kumar Gupta, Lecturer in P.G.I. (P.W. 1), Dr. Vijay Kumar Kak, Associate Professor of Neuro Surgery P.G.I. (P.W. 3), Dr. Jaswant Rai, Assistant Professor of Orthopedics and Surgery P.G.I. (P.W. 4), Dr. Rattan Lai Jain, Department of Dentistry P.G.I. (P.W. 5), coupled with the statement of the claimant as A.W. 13 it is amply proved on the record that the claimant was admitted in the P.G.I. on 21.2.1979 and was discharged on 23.2.1979. She was treated in the P.G.I. as an outdoor patient from time to time for a long time for the head injury as also for the injury on both the jaws. As regards the injury to the jaws, P.W. 5 found some predental pockets in the teeth and on clinical X-ray examinations, no other defect was found and her case was referred back to the Neurology Department keeping in view that nothing abnormal was detected by the Department of the Dentistry.

As regards the Neurology Department the physicians and surgeons were of the opinion that the claimant had actual loss of smell and taste and SO per cent of diminished sensation on the right side of her face. They found that the patient was complaining of head ache, pain on the right side of the face, loss of recent memory and it was found that she had lost recent memory. The relevant portion of the statement of Dr. Kak as P.W. 3 is as follows:

She had been complaining of head ache, pain on the right side of the face, diminished hearing power in the right ear. Vertigo. She also complained about her loss of memory, pain in shoulder and arm, right side. She also complained of loss in smell and taste. On examination performed by me, I could observe that she had an actual loss of smell and taste and I also found 50% of diminished sensation on the right side of her face. She also complained of loss of recent memory and I also found that she had lost recent memory Ex. P.W. 3/1 to Ex. P.W. 3/6 are the O.P.D. cards which are in my hand and contain the diagnosis as well as the medicines prescribed.

The claimant was getting medical treatment even when the doctors appeared as witnesses. Dr. Kak was examined on 18.9.80 therefore, it is clear that for a year and seven months, the claimant was still under treatment of the doctors of the P.G.I. and had not fully recovered. It is true that the claimant is not an income tax payee but is carrying on her profession as an advocate. It is also true that the last return submitted by her also shows that the net income is below the taxable limit, but the gross income is about Rs. 3,000/- a month. Yet to my mind the award of Rs. 10,000/- for pain and suffering for an advocate, who may not have reached the stage of paying income tax and that too for a lady advocate, would be far too less for the injuries which she suffered and the suffering continued at least for a period of one year and seven months when the doctors were making statements. No hard and fast rule can be laid down for assessing compensation and it has to depend on the facts and circumstances of each case and is more or less a rule of thumb. I consider it will meet the ends of justice, if Rs. 30,000/- are allowed to the claimant for the injuries, pain and suffering and I order accordingly.

For the reasons recorded above, this appeal is allowed with costs throughout. The award of the Tribunal below is set aside and the claimant is awarded Rs. 30,000/- for injuries, pain and suffering and Rs. 6,700/- towards medical expenses for her treatment. In this manner, the total compensation of Rs. 36,700/- is awarded to the claimant. The liability of the insurance company was up to Rs. 50,000/- as found by the Tribunal which finding has not been assailed before me. It is ordered that the sum of Rs. 36,700/- shall be paid by the insurance company to the claimant. The claimant will also get interest at the rate of 10 per cent per annum on the amount of Rs. 30,000/- from the date of filing of claim application till payment thereof.