Mohinder Singh and Another vs Gurdial Singh and Another

D.S. Tewatia, J.—Respondent Gurdial Singh, hereinafter referred to as the claimant, met with an accident on 27-12-1969 at about 5 p.m. in the area of Sidhwan Bet with truck No. PNL-6240 driven at the time by Harnek Singh, Respondent No. 2 and Mohinder Singh, Appellant No. 1, was the owner of the truck in question which was insured with Appellant No. 2. The claimant sought compensation to the tune of Rs. 38,400/- from the two Appellants and Respondent No. 2, the driver. The Tribunal allowed his claim only for a sum of Rs. 17,000/- which sum included Rs. 250/- to wards the medical expenses incurred by the claimant, Rs. 2,350/- towards pain and suffering and the rest likely pecuniary loss on account of 40 per cent permanent disability suffered by him as a result of amputation of his left leg 12" below knee.

The facts asserted by the claimant were that he, along with his nephew Harbhajan Singh, had gone to take diesel for the latter''s tractor. At the time when the accident took place he was standing on his correct side, at the fag end of the metalled portion of the road where it joined the kutcha portion. The truck came at a fast speed and hit him. As a result of the impact, he fell down and the truck passed over his left leg which as a result thereof was crushed. Harbhajan Singh aforesaid and one Kuldip Singh removed him on a cot to the Primary Health Centre, Sidhwan Bet, from where, on the advice of the doctor, he was removed to the Civil Hospital, Ludhiana.

The claim was contested by the owner and the insurance company while Harnek Singh driver was proceeded ex-parte. In support of his claim, the claimant, apart from himself appearing as PW4, examined Harbhajan Singh PW3, Dr. H.S. Dhillon PW1 and Banta Singh Patwari PW2. The owner besides himself appearing in the witness box as RW3, examined Ram Gopal and Ajaib Singh as RW 1 and RW 2 respectively.

Mr. Munisawar Puri, learned Counsel for the Appellants, has assailed the award on three grounds (1) that the claimant was himself negligent and contributed to the accident, (2) that the driver not being the authorised driver of the owner and not acting during the course of employment under the owner, neither the owner nor the insurance company was liable to pay compensation and (3) that the amount of compensation awarded by the Tribunal was highly excessive.

As regards the question of negligence, the learned Counsel for the Appellants canvassed that on his own showing the claimant was standing on the brim of the metalled portion of the road where he had no business to be and so the accident occured on account of his negligence.

I find no merit in this contention of the learned Counsel. The claimant, no doubt, says that he was standing on the outer fringe of the metalled portion on the correct side of the road, but that does not mean that a motorist can knock a person down if that person happens to be present on his own side of the road and that too almost at a point where the metalled portion adjoins the kutcha portion. In the present case, no counter version has been pleaded and the driver, who was the best person to depose to the circumstances, has neither himself appeared in the witness box nor the owner has produced him as his own witness. There being no rebuttal of the evidence of the claimant and Harbhajan Singh, it cannot be said that the accident had not occurred as a result of the negligence of the driver.

As to the second ground of attack, it may be observed that there is no dispute that the truck in question at the relevant time was driven by Harnek Singh, rather it has been admitted in the written statement itself. In the normal circumstances when a person happens to be driving a vehicle of the kind, it was to be presumed that the person driving the vehicle had the authority of the owner to drive and was driving in the course of the employment of the owner, unless evidence is placed on the record to prove the contrary. Such is the authoritative pronouncement of their Lordships of the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt and Ors. 1966 A.C.J. 89. However, the presumption is a rebuttable one. The Tribunal, in my opinion, has rightly held that this presumption has not been rebutted by the owner. The owner in his statement has not referred to his taking any step against Harnek Singh after he came to know of the fact that Harnek Singh driver had driven the truck and had caused the accident. That would not have been the conduct of an owner whose truck had been unauthorisedly taken away by a stranger and who had caused an accident there with. The interference is irresistible that Harnek Singh driver was authorised to drive the truck and was acting in the course of the employment of the owner in question at the time of the accident.

Now coming to the question of quantum of compensation, it may be observed that the claimant is an agriculturist engaged in cultivation with his father who owns about 9 acres of land. The Tribunal assessed his capacity to earn at Rs. 150/- p.m. and on the basis of the doctor''s evidence in regard to permanent disability to the extent of 40 per cent, it assessed the monthly pecuniary loss on that account at Rs. 60/- p.m. for the rest of his life, the expectency whereof was fixed at 70 years.

Mr. Munishwar Puri, learned Counsel for the Appellants, stressed that the Tribunal had no evidence before it to come to the conclusion in regard to the capacity of the claimant to earn Rs. 150/- p.m. The learned Counsel also contended that the Tribunal erred in not effecting deductions from the amount of compensation on account of lumpsum payment, uncertainty of life and such other factors.

In a case like this, it is enough if there is evidence that at the time the claimant met with the accident he was a healthy person capable of supporting himself atleast by working as a farm hand. The claimant had himself said so. The Tribunal assessed his capacity to earn at Rs. 150/- p.m. which comes to about Rs. 5/- per day, which, atleast in this part of the country, nobody touches with a pair of tongs. If at all, the Tribunal in this case has been tight fisted. This approach of the Tribunal is further amplified by the fact that it awarded only Rs. 2,350/- for pain and suffering to a person whose leg had been crushed under the wheels of a truck and which later on had to be amputated rendering him invalid for life.

In the matter of awarding compensation for pain and suffering, it is no doubt true that certain amount of conjectures enters, but even then the rule of thumb does not determine the conclusions of the Court and it is for this reason that sometimes comparisons are made though they are odious, but resort to them is necessary so that the exercise of discretion in this regard is kept within judicial limits.

In a decision reported in P.S. Bhatnagar v. State of Punjab and Ors. 1977 A.C.J. 213, a Division Bench of this Court finding Rs. 4,000/- as inadequate, increased it to Rs. 10,000/-. That was a case in which there was fracture of legs and there was a head injury as a result whereof the person concerned suffered paralysis. While facts of no two cases are similar, nevertheless it is safe to presume that in a case where leg was not only crushed but was amputated and the man was rendered invalid for life, the Division Bench would have taken an equally liberal view if it had to deal with the case like the present one.

Mr. Munishwar Puri rightly did not challenge the award of the Tribunal in regard to the amount of damages for pain and suffering, but the above discussion has a relevancy to his next submission pertaining to the effecting of deductions from the amount of compensation on account of payment in lumpsum, uncertainty of life etc. In support of his submission, he has referred to one or two decisions which it is unnecessary to cite as there is no quarrel with the proposition that while assessing the just compensation, the Court normally effects deductions ranging from ten per cent to thirty per cent depending upon the facts of a given case. In the present case, no deductions of any amount is warranted for the reasons already discussed because the Tribunal while awarding compensation to the claimant has been quite niggardly towards the claimant. Had the claimant come up in appeal, he might have succeeded in securing higher compensation.

For the reasons stated, I find no merit in this appeal and the same is dismissed. However, parties are left to bear their own costs.