Parkash vs Bhagwan Singh

R.L. Anand, J.—Parkash son of Gargar alias Jai Chand has filed the present appeal and it has been directed against the award dated 9.12.1993 passed by Motor Accident Claims Tribunal, Rohtak, which awarded a sum of Rs. 48,000/- by way of compensation to the appellant besides interest @ 12% per annum from the date of the filing of the claim petition till payment.

The brief facts of the case are that three claim petitions arising from the same accident were filed by the present appellant, Dharender Kumar alias Dhaminder and Satbir Singh against the driver, owner and insurance company by making allegations that on 21.12.1991 in the motor vehicular accident between three wheeler tempo (unnumbered) and four wheeler No. HR-19-0975 near village Jahazgarh in the area of Police Station Bcri, District Rohtak, appellant Parkash and his companions, who were the occupants of three wheeler sustained injuries. The appellant claimed Rs. 4 lakh by way of damages from the owner, driver and the Insurance Company. As per the allegations, on 21.12.1991 at about 1.30 p.m. the appellant and his companions boarded the ill-fated three wheeler from Beri for going to village Chhuchkwas and the three wheeler was being driven by its driver at a normal speed and on the correct side of the road. When it reached one kilometre ahead of village Jahazgarh, the offending four wheeler TATA 407 bearing No. HR-19-0975 came from the opposite side driven in a rash and negligent manner and slruck againsl the three wheeler coming on the wrong side. The three wheeler turned turtle and all the occupants received injuries. The offending vehicle was being driven by Bhagwan Singh alias Bhana Ram.

The claim petition of the present appellant was contested by respondents No. 1 and 2 and they filed a joint written statement. Responden! No. 3 also filed a separate written statement. The factum of accident was not disputed but the negligence on the part of respondent-driver was denied. It was alleged that the accident, in fact, had taken place due to rash and negligent driving of driver of three wheeler namely Surin-der Singh son of Bhim Singh, resident ofvillagc Bagh-pur, who was driving the same without any valid driving licence, registration number and route permit. He came from the opposite side in a rash and negligent manner and hit the four wheeler by corning on the wrong side. The claim petition was also contested on the ground of non-joinder of Surinder Singh son of Bhim Singh.

From the pleadings of the parties, following issues were framed by the Tribunal :-

"1. Whether the accident dated 21.12.1991 resulting into the injuries to Satbir Singh, Parkash and Dharender Kumar was caused use to rash and negligent driving of four wheeler No. HR-19-0975 driven by respondent No. 1 ? OPP

Whether claimant Satbir Singh is entitled to any compensation on account of injuries suffered by him and if so to what amount and from whom ? OPP

Whether claimant Parkash is entilled to any compensation on account of injuries suffered by him and if so to what amount and from whom ? OPP

Whether claim Dharender Kumar is entitled to any compensation on account of injuries suffered by him and if so to what amount and from whom ?

Whether the offending vehicle was being driven without a valid driving licence ? OPR

Whether the petition is bad for non-joinder of nec-essary parties ? OPR

Relief."

The parties led oral as wed as documentary evidence in support of the respeclive cases and on conclusion of proceedings issue No. 1 was decided in favour of the claimant. Under issue No. 2 the Tribunal awarded a sum of Rs. 50,000/- by way of compensation to Satbir Singh non-appellant. Under issue No, 3 the Tribunal awarded a sum of Rs. 48,000/- to the present appellant. Rs. 5,000/- were also awarded to non-appellant Dharender Kumar under issue No. 4. Issues No. 5 and 6 were decided against the respondents. The claim petition of the present appellant was partly allowed and he was awarded a sum of Rs. 48,000/-alongwith interest @ 12% perannum. The appellant is not satisfied with the award of the Tribunal, hence the present appeal.

I have heard the learned Counsel for the parties and with their assistance have also gone through the records of the ease.

Before 1 discuss the submissions raised by the learned Counsel for the appellant, I may point out here that the Tribunal gave the following reasons in order to calculate the compensation of Rs. 48,000/- to the present appellant and the said reason have been given in paras 24 to 31 of the impugned award :-

"24. PW1 Dr. S.K. Moda, Head of the Department of Orthopaedics, Medical College and Hospital, Rohtak, deposed that patient-Parkash was admit-ted in the hospital on 21.12.1991, who was suffering from compound fracture (of) right femur with lacerated wound, left ankle and foot. The patient was treated by open reduction and external fixation and was discharged on 167.3.1992, He was again admitted, per OPD card, Ex. P4, for about four days. In this way, he remained admitted for 89 days in the hospital and he is still under treatment. Ex.P2 to P4 are the discharge cards which show that the claimant remained as outdoor patient till May, 1993 and is still undergoing treatment, as per statement of the doctor. The doctor further deposed that the patient might require another operation and his disability might be roughly 15 to 20% with no significant shortening of the injured limb. He was advised crutches for support and he was not able to do hard manual work.

Claimant Parkash appeared before the Medical Board of Orthopaedics Surgeons of Medical College and Hospital, Rohtak and got issued a disability certificate, Ex. P50, according to which he was having discharging sinus right thigh and limitation of movement of right knee beyond 90 degrees and the disability was about 35%. This certificate was also signed by Dr. S.K. Moda, who appeared into the witness box and deposed that the patient was having 15 to 20% disability. There was no explanation on the file as to who there was such a gap between the opinion of the doctor. However, the fact remains that the claimant suffered disability, if noi 35%, it might be slighlly less.

The claimant-Parkash produced the receipts of medicines and other expenses, Ex.P11 to P31 and P51 amounting to Rs. 4837.93. The claimant must not have maintained all the vouchers. He remained admitted in the hospital for 89 days, took special diet and underwent long treatment. Another operation might be needed. In such circumstances, I assess a sum of Rs. 20,000/- to be just and reasonable for the past, present and future treatment, including special diet and transportation charges,

The claimant underwent pain and suffering, loss of enjoyment of life and amenities and he remained admitted for such a long time. He cannot walk without crutches. He suffered a compound fracture, right femur. Operations were performed on the seat of injuries. Therefore, under the head of pain and suffering, I consider a sum of Rs. 25,000/- to be just and proper.

The claimant suffered disability around 30 to 35%. On account of disability, I assess a sum of Rs. 33,000/-.

The claimant could not attend to his duties for about 1-1/2 years. He is still under treatment. He is a labourer. The minimum wages of a labourer are not less than Rs. 1000/- p.m. Therefore, the loss of income is taken at Rs. 18,000/-.

In view of the above discussion, claimant-Parkash is held entitled to compensation of Rs. 96,000/- as follows :

(i) On account of treatment Rs. 20,000/- (past, present and future), transport and special diet.

(ii) On account of pain and suffering, loss of enjoyment of life and amenities. Rs. 25,000/-

(iii) On account of disability, Rs. 33,000/-(iv) On account of loss of income, Rs. 18,000/-Total, Rs. %,000/-

In view of my discussion on issue No. 1 above, claimant-Parkash would be entitled to recover only 50% of the amount i.e. Rs. 48,000/- from the respondents jointly and severally. This issue is decided accordingly in favour of the claimant."

The second aspect which I would like to highlight is that the matter was referred to Lok Adalat for compromise and the Presiding Officer of the Lok Adalat made recommendation that there is a scope of enhancement of compensation which should be enhanced from Rs. 48,000/- to Rs. 75,000/-. But the respondent-Insurance Company was not agreeable to the proposal of enhancement.

The learned Counsel appearing on behalf of the appellant submitted that the Tribunal was not justified in imposing a cut of 50 per cent in the compensation which is initially assessed at Rs. 96,000/-. He submitted that the appellant was a passenger of the three wheeler. The driver of the three wheeler namely Sur-inder Kumar was not at fault. The accident had been caused on account of the negligence of Bhagwan Singh alias Bhana Ram, who came on the wrong side of the road and thus the appellant is entitled to the entire compensation of Rs. 96,000/-, which was assessed by the Tribunal at the first instance. There is a merit in the contention raised by the learned Counsel for the appellant. The Tribunal has imposed a cut of 50% per cent mainly on the ground that since there was a head on collision between both the vehicles, therefore, both the vehicles are equally to be blamed for rash and negligence driving. This opinion formulated by the Tribunal, in my opinion, is not correct. Even if it is assumed for the sake of argument that the three wheeler was overloaded that per se is no ground to hold that the driver of the three wheeler was negligent or that he was driving the vehicle in a rash and negligent manner. We all know that three wheeler is a slow moving vehicle as compared to a four wheeler. Even if it is assumed for the sake of argument that Surinder Singh was taking more passengers than the sanctioned capacity of the three wheeler, in such a situation the speed of the vehicle would be slow on account of the weight of the passengers. The direct evidence is that the driver of the four wheeler namely Bhagwan Singh was driving the vehicle in a rash and negligent manner and went on the wrong side of the road, in such a situation it was not justified on the part of the Tribunal to impose a cut of 50 per cent. Nevertheless the driver Surinder Singh has committed violation of the law when he had allowed more persons to sit in the tempo. Moreover. Surinder Singh has not been examined by the respondents. Therefore, I am inclined to award a sum of Rs. 72,000/- only to the appellant Parkash besides interest @ 12 per cent per annum from the date of the filing of tile claim petition till payment. This amount I have also awarded by keeping in view the opinion formulated by the Lok Adalat.

Rcsultantly, the present appeal is partly allowed and the amount of compensation stands enhanced to Rs. 72,000/- which shall be paid by the respondents, jointly and severally along with interest @ 12 per cent per annum from the date of the filing of the claim petition till payment. The compensation already paid by the respondents shall stand adjusted. The enhanced compensation shall be paid to the appellant within three months from the receipt of the copy of the order. There shall be no order as to costs.

Petition partly allowed.