M.P. State Road Trans. Corporation vs Kishanlal Suri

Rampal Singh, J.—This judgment shall also govern the disposal of the cross-objection filed by the Respondent No. 1.

Appellant, Madhya Pradesh State Road Transport Corporation, through its Divisional Manager, Gwalior Division, has preferred this appeal u/s 110-D of the Motor Vehicles Act, 1939, aggrieved by the award passed by the Motor Accidents Claims Tribunal, Gwalior in Claims Case No. 80 of 1974 dated 12.9.1977.

Respondent No. 1 has also preferred a cross-objection aggrieved by that judgment of Claims Tribunal and has prayed for enhancement of the amount awarded.

Short facts, in which this unfortunate accident took place, are that on 17.11.1972, while the Respondent No. 1 was driving his scooter on the road, Respondent No. 2 was the driver of the vehicle bearing No. MPH 9297, which was coming from the side of Maharaj-pura. The owner of this bus is the Appellant. When the Respondent No. 1 reached the spot of the accident on scooter No. UPH 9752, some cattle were crossing that road. He, therefore, stopped his scooter on the left side of the road and it is at this time that the offending bus came, rushing behind him and crushed his feet and also the scooter. The front wheel of the bus passed over the leg of the Respondent No. 1, resulting in multiple injuries and fractures to his leg. He was immediately taken to the G.R. Hospital, Gwalior where he was admitted and treated for several months. According to the claimant, the offending bus was being driven rashly and negligently The Respondent No. 1, at the time of the accident, was of 34 years of age and was serving in Military Engineering Services and was getting Rs. 712/- per month. He therefore, claimed Rs. 1,50,000/- as damages. Claims Tribunal, after framing the issues and recording the evidence, answered the issues as given below:

(1) The accident was the direct result of the rash and negligent driving of Respondent No. 2.

(2) The Respondent No. 1 is entitled to get only Rs. 44,374/- as the compensation.

During the trial the Respondent-claimant examined himself as well as the eye-witnesses, who witnessed this accident. According to the evidence on record, it has been proved that when the cattle were crossing the road, the claimant, who was on the scooter, stopped it on the left side of the road and it is at this time that the offending bus, which was being driven rashly and negligently dashed against the scooter from behind, crushing the scooter and leg of the claimant. According to eyewitnesses, Bhagirath AW 2, Randhir Singh Tomar NAW 2 and Rameshwar Singh NAW 4, etc., the speed of the bus was very high. Some of them say that it was driven at a speed of 25-30 miles per hour while the others state that it was 40-50 miles per hour. From this evidence on record, the Claims Tribunal has concluded that the bus was being driven rashly and negligently.

The defence of the driver Devlal was that the speed of the bus was only 10-15 miles per hour. He has admitted that while some cattle were crossing the road, the scooterist had stopped his vehicle. He further stated that it was the result of the melee by the cattle that he sustained these injuries. Apparently, the Claims Tribunal has not relied upon this fabricated defence because this defence was not corroborated by any of the witnesses. In para 11 of the impugned judgment, it is due to this reason that the trial court concluded that bus was being driven by driver, Devlal, rashly and negligently.

The claimant during the trial has examined AW 1, Dr. C.J. Gaikwar, AW 5, Dr. R.H. Balchandani and AW 6, Dr. U.K. Jain. Dr. Gaikwar and Dr. Balchandani are of G.R. Medical College, Gwalior, who have proved the injuries sustained by the scooterist-claimant and the period taken in his recovery. X-ray plates, X-ray records arid the discharge certificate, as also the hospital record perfectly prove that the Respondent No. 1 was treated in the hospital for several months. AW 5 Balchandani has proved that the X-ray report (Exh. P 14) and X-ray plates (Exh. P 15) indicate that there were fractures, the leg shortened, the knees have syphoned and he has become partially disabled for his life. According to this doctor the claimant cannot lead a normal life like a normal man, he cannot drive, he cannot run and he cannot jump. Furthermore, he cannot sit like an ordinary man.

Dr. Jain, AW 6, is a doctor from Lucknow Medical College, where the claimant got subsequently treated himself. He has vividly described the treatment given to the claimant in Lucknow Medical College. This witness has said that the claimant was an indoor and outdoor patient of the medical college and the treatment continued till 6th April, 1974. According to this witness Exhs. P 19 and P 20 are the X-ray photos and his report is Exh. P 18. Dr. Jain has corroborated the testimony given by Dr. Balchandani. Thus, according to the medical evidence, the thigh bone has not been properly united, the thigh skin has shortened and the leg has been disfigured. 45 per cent of disability has crept in and the leg cannot bend from the knee. According to Dr. Jain he will have partial disability for his whole life. The Claims Tribunal, after discussing the principles laid down in various cases has concluded in para 18 of the judgment that award of Rs. 6,000/- would be sufficient for the injuries and bodily pain sustained by the claimant. Rs. 20,000/- have been awarded as the general damages, disfiguration and disability. Rs. 1,914/- have been awarded as the cost for the repairing of the damaged scooter. The loss of amenities was valued by the Claims Tribunal at Rs. 12,460/-. The Claims Tribunal in para 21 of its judgment, concluded that Rs. 2,000/- more have to be awarded as expenses for medicine, etc.

In this cross-objection Mr. N.P. Mittal has attacked the findings that when the Claims Tribunal was satisfied from the evidence of Dr. U.K. Jain that the total general expenses towards his recovery were only to the tune of Rs. 10,000/- then the Claims Tribunal should have awarded that amount and it has committed a jurisdictional error in arbitrarily awarding an amount of Rs. 2,000/-.

Thus, the total amount awarded by the Claims Tribunal in favour of Respondent No. 1 is Rs. 44,374/-. The learned Counsel for the Appellant has vehemently attacked finding of facts recorded by the Claims Tribunal. Unfortunately, this argument is not tenable, because I express my general agreement with the findings given by the Claims Tribunal.

The findings recorded in the impugned judgment significantly are based upon not only the principles of law but also on the evidence on record. The counsel for the Appellant has urged and contended forcefully that the accident was the direct result of the contributory negligence on the part of the scooter driver. This argument has to be rejected outright on the ground that in his pleadings the Appellant has not pleaded the factum of contributory negligence. The Appellant has also not proved this by direct evidence. Therefore, this contention has to be rejected.

Mr. Khot, learned Counsel for the Appellant, has contended that Rs. 2,000/- awarded as pecuniary loss should not be allowed to stand. Reason being, according to him, no evidence for purchase of the medicines, blood, fees of the doctors, fruits and other items has been adduced by the claimant. Be that as it may, in the case of Swaraj Motors Private Ltd., Kottayam Vs. T.R. Raman Pillai and Another, Kerala High Court held that to obtain the bills and vouchers of such items at the time when the injured is lying in hospital in grave condition is not expected by the attendants and the courts should, therefore, decide the quantum on the basis of the evidence on record. The claimant in his testimony has explained clearly the expenses incurred by him, these expenses may be exaggerated, then the court should have taken into account the amount indicated by Dr. U.K. Jain, AW 6. According to Dr. U.K. Jain, AW 6, such expenses must not be less than Rs. 10,000/-. There is no reason why reliance should not be placed upon this testimony. The Claims Tribunal, therefore, erred in awarding only Rs. 2,000/- towards this item. If caution was to be used by the Claims Tribunal then the amount proved by Dr. U.K. Jain should have been awarded. Instead of Rs. 2,000/-, the Claims Tribunal should have awarded Rs. 5,000/-. I, therefore, partly allow the cross-objection and increase the claim amount by Rs. 3,000/-.

The result of the above discussion is that this appeal is dismissed with costs throughout. The cross-objection of the claimant is allowed to the extent of only Rs. 3,000/-. Thus, the total amount of compensation which the Respondent No. 1 will receive is Rs. 47,374/- only, plus expenses throughout and also the interest till the final payment is made, as indicated in para 23 of the impugned judgment. Counsel''s fees as per schedule, if certified.